Everyone knows how a last will and testament (or “will” for short) works and why you need one. A will is likely the most common estate planning tool, and for good reason. Wills are relatively easy to create and they allow individuals to pass on their property and assets to whomever they choose, after they die. What many people don’t know, is that not everyone is competent to make a will in California. If you lack the legal capacity required to create a will, at the time the will is executed, your will is not valid before the courts. There are basic legal requirements for creating a valid will, the most important of which, is the legal and mental capacity of the testator (the person executing the will).
How is legal competency defined in California?
Generally speaking, the testator must be old enough to create the will and must be able to understand the nature and extent of his or her property, as well as the identity of his or her heirs. In California, a testator must be at least 18 years old and of sound mind. The testator in California must have “testamentary capacity,” which means he or she understands the implications of what is being signed.
Criteria required for mental competency
Generally speaking, you are considered mentally competent to sign a will in California, if you meet the following criteria:
- You understand the nature and extent of your property, meaning you know what you own and how much you own.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
- You understand what a will is and how it disposes of property.
- You understand how all these things relate to each other and come together to form a plan.
The effects of mental illness
That does not mean that, simply because you have a mental illness or disease, you automatically lack the required mental capacity. As long as it can be shown that you have periods of lucidity, you may still be competent to sign a will. Millions of people are affected by dementia, and unfortunately many of them have not engaged in proper estate planning before the symptoms began. If you or a loved one has dementia or another mental illness that may affect their capacity, it may not be too late. It is best to consult an estate planning attorney in California to determine whether the criteria are met to establish competency.
If you have questions regarding wills and competency, or any other estate planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.