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By: Scott Grossman on September 15th, 2016

5 Possibilities for How Mental Incompetence is Determined

When most people think about administering a trust or estate, they immediately envision the settling of their loved one’s affairs after life ends. A trust administration does not always begin after a settlor dies, however. Many trusts provide a wonderful benefit to their creators by including provisions that allow a trustee to swiftly step in. They then can take over the settlor’s affairs in the event mental incompetence is determined. If your loved one becomes incompetent, you may need to begin the trust administration process much sooner than you thought.

5 Ways Mental Incompetence is Determined:

Before the administration of a trust begins, there first must be a finding of mental incompetence. The following are five common ways that this finding occurs:

  1. If there is no trust in place, you typically must pursue a guardianship proceeding with the probate court in order to have your loved one declared mentally incompetent.
  2. Most revocable trusts give the ability to determine mental competence to a co-trustee or a successor trustee.
  3. Often, the trust instrument will outline a definition for mental incompetence.
  4. The trust instrument may direct the co-trustee or successor trustee to rely on the opinion of licensed physicians.
  5. If the findings are challenged or questions exist, a judicial determination of incompetence may be sought.


If you are ready to start your case, then please give us a call or fill out our Get Help Now form. A comprehensive overview of California Probate is available here. Should you have additional questions about trust litigation, you will find plenty of useful information in our Learning Center.