How to Account for Issues of Capacity When Creating an Estate Plan

In Texas, to create an estate plan, you must have sufficient mental capacity to understand what is going into the document. If your estate plan is later going through a probate court, and the judge decides that you did not have the proper mental capacity when signing your will, your beneficiaries will have problems getting the assets you left behind. On today’s blog, we review some basic components of capacity; if you have questions about whether a loved one is in the right mindset to draft an estate plan, speak with a Houston estate planning attorney that can help you apply these requirements to your circumstances.

Basic Capacity Requirements

In Texas, to create a will, there are three important requirements to consider. Importantly, you must meet only one of these three requirements: 1) you are at least 18 years old, 2) you are or have been legally married, or 3) you are a member of the U.S. military.

As long as you meet one of the three requirements, you will be able to create a will if you also have the capacity to understand the legal document. For individuals without this mental capacity, called “testamentary capacity” in legal terms, it might be necessary to retain a power of attorney or a legal guardian to help get the will drafted and finalized.

In Texas, testamentary capacity involves the ability to understand four elements, and you must understand all four in order to be considered of sound mind: 1) the assets at play, 2) the purpose of the estate plan, 3) the beneficiaries involved, and 4) the legal consequences of signing the estate plan. If a judge is later trying to determine a decedent’s testamentary capacity, he or she will evaluate the decedent’s ability to understand these four parts of the process.

Implications of Capacity Issues

If a judge later determines that a decedent did not have the capacity to sign an estate plan, there will be issues with getting the estate plan passed through the probate court. The court might need to take testimony and receive evidence about the decedent’s state of mind, and this could take months to work itself out. Ultimately, the best thing to do is to make sure all estate planning documents are effectuated with the drafter’s full understanding and full consent. And, as always, we recommend starting the estate planning process early to avoid issues related to aging and mental capacity that could come into play down the road.

Are You Looking for a Houston Estate Planning Attorney for You or Your Family?

If you or a loved one need a Houston estate planning attorney, contact McCulloch & Miller for a consultation today. Our team of attorneys has decades of experience in the field and is proud to offer holistic, empathetic representation to individuals at all stages of the estate planning process.

For your consultation with a trusted and expert attorney, call us today at 713-597-7176. You can also fill out our online form to have an attorney reach back out to you as soon as possible regarding your elder law issue, estate plan, trust, or senior benefits plan.

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