Estate Planning Where Lack of Mental Capacity

Image of adult son walking with his elderly father

Planning Can Still Be Done Where There is Lack of Mental Capacity


People generally do a living trust and will to avoid probate proceedings and to have more flexibility about who will inherit their estate and when it will be inherited.  However, on occasion people wait too long to do their estate planning and get sick or incapacitated and then it is too late. This is where consideration of “Lack of Mental Capacity” enter the discussion.The alternative to not having an estate plan is that the person’s money and property has to go through expensive and lengthy probate proceedings and the person has no choice about how to divide up his or her estate. The mandatory attorneys fees in probate on a $1,500,000 estate are $28,000.  If probate can be avoided the fees to administer an estate are typically 1/3rd or less of what probate attorneys fees would be.  The law allows a person to divide up his or her  estate in any percentage that he or she feels like and there is no requirement that once estate be left to family members or relatives. However, without an estate plan, the surviving spouse and children and perhaps other relatives will be the ultimate recipients of the estate and the maker of the will or trust will have nothing to say about it.


The law in California has certain standards as to people’s capacity to make wills and to make trusts. If those standards are not met, then the will and are trust could be declared invalid if challenged in court. Here are the basic rules for wills and trusts.  Even worse, people who are seriously ill or seriously mentally incapacitated can be totally incapable of even having a discussion with their attorney about a will or trust and cannot sign anything.


A person must be at least 18 years old and of sound mind to make a will. A person is not mentally competent to make a will if at the time of making the will (i) he or she does not understand the nature of the testamentary act, (ii) does not understand and recollect the nature and situation of his or her property, (iii) and does not remember or understand his or her relations to living descendants, spouse, parents, and those whose interests are affected by the will.  Also a person is not mentally competent to make a will if he or she suffers from a mental disorder with symptoms including delusions or hallucinations, which result in his or her devising property in the will in a way which except for the existence of the delusions or hallucinations he or she would not have done.


Generally speaking, the legal rules to prove that a person is competent enough to execute a will are not as stringent as competency to execute a trust. A trust is considered a contract and the law has higher standards for capacity to make contracts.  That capacity means that a person has the ability to communicate verbally or by any other means and to understand and appreciate (i) the rights, duties, and responsibilities created by or affected by the trust; (ii) the probable consequences for the decision-maker and the persons affected by the decision; and (iii) the significant risks, benefits, and reasonable alternatives involved in the decision.

Image of an adult son walking with his father


When a person becomes incompetent such that they lack mental capacity to do a will or trust a conservatorship could be formed.  The will and are trust could then be done through the conservatorship.

A conservatorship is a court proceeding in which a court appointed fiduciary, known as the “conservator”, manages the personal care of the person who cannot properly provide for his or her personal needs.  A conservator can either be a conservator of the person or a conservator of the estate or both. The person who is the subject of the conservatorship is known as the “conservatee”.  A conservatorship is an extremely serious proceeding and requires the conservator to file various reports and accountings with the court throughout the conservatorship.  Where the conservatee has no will or trust, there is a specific part of the California law which allows the conservator to apply for permission to establish a will and/or trust for the conservatee. The point of doing this would be to avoid the expense and time and complication of a probate proceeding where the conservatee has significant assets.  When faced with mandatory attorneys fees in the probate court of 4% of the first $100,000,  3% of the next $100,000, 2% of the next $800,000 and 1% of the estate asset amounts in excess of $800,000, most people are motivated to have the conservatee’s assets be placed in a living trust to avoid probate and those fees.

Getting a conservatee’s assets into a living trust involves several steps. First, the conservatorship has to be formed which involves filing a court petition and other papers and then a hearing is held and a Judge decides if the conservatorship can be established.  After that, the conservator files a special court under the law providing for the establishment of wills and trusts and the court’s permission has to be granted. Also, the court and all interested parties will need to review and approve the proposed will and trust. However, when the alternatives of probate costs and time delays are considered, doing a conservatorship is often a good choice.

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If the person wanting to make a will or trust has no mental capacity or is so sick that they could sign those types of documents then conservatorship is the only alternative. However, if they are of questionable mental capacity, they could be tested first to determine if they have enough mental capacity to discuss and sign a will and/or trust. The testing would be done by a licensed mental health professional. The mental health professional would then make a report and/or fill out a court form having to do with capacity as a backup to the attorney’s file.  If the report indicates the person does have the proper legal capacity, then that is good evidence to have available to defend against a will contest or trust contest case.  If the person lacks capacity to do a will or a trust and then everyone involved will realize that a conservatorship is the best action to take.

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