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Jay Leno's Request to Create Wife's Trust Could Cost Family 'Hundreds of Thousands' If Denied, Lawyer Says

After Jay Leno filed for conservatorship of his wife Mavis following her diagnosis diagnosis, a legal expert tells PEOPLE about the repercussions the situation could have if his request is not granted

<p>Jon Kopaloff/FilmMagic</p> (L-R) Jay Leno and wife Mavis Leno are pictured attending the 2012 Vanity Fair Oscar Party at Sunset Tower on February 26, 2012 in West Hollywood, California.

Jon Kopaloff/FilmMagic

(L-R) Jay Leno and wife Mavis Leno are pictured attending the 2012 Vanity Fair Oscar Party at Sunset Tower on February 26, 2012 in West Hollywood, California.

Jay Leno's request to become wife Mavis's conservator could present steep challenges if it proves unsuccessful.

California probate attorney David A. Esquibias tells PEOPLE that the former Tonight Show host, 73, is "asking the court for permission, otherwise known as 'Substituted Judgment,' to create an estate plan" since his wife, 77, "did not create one on her own prior to [the] onset of her dementia."

"If the court approves Jay’s request, he likely will name himself as her beneficiary due to their 40-plus-year marriage," he explains. "If the Judge does not grant Jay’s request, then upon his wife’s death a probate proceeding will be triggered to determine who receives her share of their assets."

According to Esquibias, being denied as conservator is "likely to cost the Leno family hundreds of thousands of dollars in unnecessary legal fees."

Related: Inside Jay Leno's Request to Become Wife's Conservator — and What Legal Experts Say Could Come Next

Legal documents obtained by PEOPLE indicated that Leno filed to be Mavis's conservator on Friday following her dementia diagnosis. The filing was submitted to set up a living trust for Mavis, ultimately ensuring that she has "managed assets" to provide her with future care if he died.

In the filing, Leno said Mavis does not contest the establishment of a conservatorship and does not prefer another person to act as conservator. The comedian is also requesting that Mavis not attend the related court hearing as it would be "detrimental to her mental and physical health."

Related: Who Is Jay Leno's Wife? All About Mavis Leno

Depending on the stage of her dementia diagnosis, which the Alzheimer's Association notes memory loss and difficulty making decisions as symptoms of the disease, David DuFault — a principal attorney at Sodoma Law — tells PEOPLE that filing for conservatorship could potentially be Leno's "way of proactively putting something in place for when the time comes, and she's just no longer able to do it."

"If the petition is granted, Jay Leno, he would be her conservator and he will be responsible for making all decisions based on the scope that the court gives him," he says.

"Generally, courts like to be as least restrictive as possible," he continues. "I would guess that given her age, given the idea that there is or appears to be a dementia diagnosis, it could be a very broadly-crafted order that says that the petitioner has authority to make all kinds of decisions for her, which could be dealing with financial assets, selling real property, making decisions about beneficiary designations."

<p>Barry King/FilmMagic</p> (L-R) Jay Leno and wife Mavis Leno are pictured attending an HBO premiere of an exclusive presentation of 'Billy Crystal 700 Sundays' on April 17, 2014 at Ray Kurtzman Theater in Los Angeles, California.

Barry King/FilmMagic

(L-R) Jay Leno and wife Mavis Leno are pictured attending an HBO premiere of an exclusive presentation of 'Billy Crystal 700 Sundays' on April 17, 2014 at Ray Kurtzman Theater in Los Angeles, California.

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The timeline for the conservatorship's approval also varies, says DuFault.

"It depends. If it's contested, it could take a while," he explains. "If there's not a lot of dispute, if the evidence is there, that she is maybe slipping or is losing some of the capacity, and it's not being challenged, it probably could happen pretty quickly."

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