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San Fernando Valley Probate & Estate Administration Law Blog

What is testamentary capacity?

In order to make a valid Last Will and Testament in California, you must have the testamentary capacity to do so. As the Orange County Bar explains, testamentary capacity, i.e., legal mental capacity, and general mental capacity are defined differently

Under California Probate Code Section 6100 5(a)(1), your testamentary capacity to make a valid will means you understand the following four things:

  1. The fact that you are making or changing your will
  2. The nature and extent of your property and assets
  3. The people who are your relatives and therefore your natural and expected heirs
  4. The way in which your will or your changes to a previous one will impact your relatives

Top 5 estate planning tips for new parents

At the Law Offices of Alice A. Salvo in California, we are firm believers in the value of estate planning for all families regardless of their wealth. Why? Because your estate plan is the only way you can ensure that whatever your wishes and goals pertaining to your assets, someone will carry them out for you should you become incapacitated or die.

As Kiplinger explains, one of the times when you should be most concerned about estate planning is when you adopt or give birth to a child. Here are the top five estate planning tips for new parents.

Should your attorney be your executor?

As you likely already know, when you make a Last Will and Testament in California, in addition to naming the heirs who you want to receive your property upon your death, you also appoint an executor to carry out your wishes when the time comes. You can choose whomever you wish to act in this capacity, but before appointing someone as your executor, you should carefully consider his or her ability to do the job.

Bear in mind that your executor will have many duties while taking your estate through probate, including the following:

  • Gathering your estate assets together
  • Inventorying and valuing those assets
  • Managing and protecting the assets during probate
  • Paying valid claims against your estate
  • Defending your estate against invalid claims or will challenges
  • Making a final accounting and distributing the assets to your designated heirs

Are you ready for the responsibilities of being an executor?

You may have always been someone who enjoyed taking on responsibilities. You may have done your best to thrive at your job and often took the time to organize family events. As a result, you may not have felt surprised when a loved one as you to act as executor of his or her estate.

Now that your loved one has passed, you will certainly have a number of obligations to contend with, and this role may differ from many other responsibilities you handled in the past. Therefore, you may want to fully understand the importance of your role as executor.

What is an advance directive?

If you are a Californian starting to think about the type of medical and/or end-of-life care you wish to receive, you may want to consider executing an advance directive that sets forth your wishes and desires. As the National Hospice and Palliative Care Organization explains, advance directives can go by several other names as well, such as a living will, medical power of attorney, health care proxy, etc.

While technically you do not need the assistance of an attorney to draft your advance directive, consulting with one serves your best interests. Why? Because although advance directives are legal in all 50 states, laws vary from state to state as to what such a document must include in order to make it valid. In addition, even if you are a long-time California resident with no plans to move or travel to other states, your advance directive must contain the proper legal language, as well as sections expressing your personal medical desires and preferences, to make it valid in our state.

How many types of trusts are there?

If you are a sophisticated California estate planner, your estate plan likely consists of a will and several trusts. Have you ever wondered how many kinds of trusts you can choose from? As FindLaw explains, the answer is “many.” All of them, however, fall into two basic categories: revocable and irrevocable. All of them also have three basic parties: the grantor, the beneficiary or beneficiaries, and the trustee.

As its name implies, you cannot alter or revoke an irrevocable trust or its provisions once you establish it. Conversely, you can revoke and/or change the provisions of a revocable trust any time you wish after establishing it. You can also stipulate that a revocable trust become irrevocable when you die.

Making sure your will and trust(s) work together

At the Law Offices of Alice A. Salvo in California, we help individuals like you devise an estate plan that meets their goals and objectives of providing for themselves and their families. No matter what you seek to accomplish by means of your will and trust(s), we can help you achieve it.

One of the most important aspects of estate planning is to make sure that your will and your living trust documents work together seamlessly so that your executor and trustee(s) can carry out your wishes in the way you desire. As you likely realize, your trust(s) contain(s) only those assets you transferred to it or them at the time you set it or them up. This can present a significant future disadvantage. FindLaw explains, however, that you can overcome this disadvantage via a pour-over will. 

Understanding generation-skipping trusts

A generation-skipping trust is one methodology by which wealthy Californians can pass their estates down through the family without facing the double estate taxation that other methodologies often entail. As Investor Guide explains, a generation-skipping trust generally names the grantor’s grandchildren as beneficiaries of the trust. By bypassing the grantor’s children, the family saves the estate taxes they would have to pay if the children first inherited, followed later by their own children.

Although a generation-skipping trust usually names grandchildren as the beneficiaries, this is not a necessity. The grantor can name anyone (s)he wants as a trust beneficiary as long as that person is not his or her spouse or ex-spouse and is at least 37-1/2 years younger than (s)he.

Making a pet trust part of your estate plan

Having a furry friend really does make a difference in your life. You don't need studies or statistics to tell you that you feel calmer, your heart beats slower and your blood pressure evens out when you are sitting on the sofa with your dog or cat in your lap or at your feet.

Whether you have always loved animals or this particular one grew on you, the fact is that your companion depends on you for everything. Unfortunately, many pets outlive their owners, and shelters are full of animals that pet owners thought they had safely passed along to someone in their wills. This is why more animal parents are adding pet trusts to their estate plans.

Does your loved one have the capacity to make a will?

If your loved one wishes to make or change a California will, you need to be aware of the possibility of diminished capacity issues. As explained by the Orange County Bar, legal mental capacity is different than general mental capacity.

Your loved one’s legal mental capacity to make or change his or her will is called testamentary capacity. Per California Probate Code Section 6100 5(a)(1), testamentary capacity consists of the following:

  • An understanding that (s)he is making or changing his or her will
  • An understanding of the nature and extent of his or her property
  • An understanding of who his or her relatives are and how the will or changes thereto affects them
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