What would be the outcome if I became mentally disabled, and had no estate plan in place, or only had a will?

When an individual has no estate plan in place, or only has a will, and then suffers from a mental disability, that individual could be the subject of a “living probate”, which is also referred to as a conservatorship or guardianship proceeding. In a living probate, the probate court would designate someone to assume control of the individual’s assets and personal affairs. Such court-appointed agents are required to file a strict accounting of the conservatee’s finances with the court. The process can frequently be costly, time-consuming and demeaning.

It is possible to avoid such an outcome by establishing a living trust, which avoids probate, and can offer some protection in the event of mental disability. For example, it is possible to designate someone as power of attorney to sufficiently fund the trust in case the grantor ultimately suffers from a mental illness, and name a dependable successor trustee to manage the trust. In this way, a court-ordered guardianship can be avoided.

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