In California, drafting a Will, Trust, or alternative Estate Planning document has three basic requirements. First, you must be alive; second, you must put the drafting in writing; and third, you must have the capacity to make testamentary decisions. But what exactly is “capacity to make testamentary decisions?”
Capacity can be a gray area, especially with older individuals, because later in life is usually when dementia and other memory disorders begin to manifest. An important note is that capacity has nothing to do with intelligence, rather, capacity deals with a person’s understanding and ability to know the result of the actions they take. For estate planning, this means they understand the nature and consequences of the decisions they make, and those decisions are made by them alone. Otherwise, they are incapacitated.
The criteria for determining incapacity are listed in California Probate Code Section 6100.5, and to paraphrase the code, here are the requirements:
Understand you are creating a will or trust.
Understand and remember what property you own and its condition.
Understand and remember your family structure and relationships.
As you can see, the central theme to the above list is that the person creating the documents is that the person must know the result of their actions. They need to know they are creating a will, must know what property will be controlled by the document, and must know if there are any family members not included.
Determining capacity is the first thing estate planning attorneys should assess when meeting with a client.
Often, a simple conversation may reveal that the criteria are met, but in some cases, the attorney will need to delve deeper to ensure the criteria are met. The important takeaway should be that sooner is always better when it comes to creating any Estate Planning documents. This is definitely a case of an ounce of prevention being worth a pound of cure. Documents drafted by individuals who may have an issue with any of the criteria are much more susceptible to challenge in court if the beneficiaries of the estate plan disagree.
If you need an estate plan, contact Tresp Law, APC and ask about your personal property memorandum. We will ask the right questions and help you get the estate plan that is right for you
