Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
|Where There Is A Will, There Is A Way!|
Where There Is A Will, There Is A Way!
A will provides a way to see to it that your estate goes to your intended beneficiaries. In the absence of a will or trust, the way you think your estate will be distributed may not match the manner in which the courts will actually dispose of your estate! If a person dies without disposing of his or her property by will, and thus dies intestate, statutes determine who will receive the decedent's property. In California, on the death of a married person, one-half of the community property belongs to the surviving spouse, and the other half belongs to the decedent. The one-half of the community property which belongs to the decedent, together with any separate property of the decedent, will also pass to the surviving spouse so long as the decedent did not leave any surviving children, parent, brother, sister, or issue (children, grandchildren, etc.) of a deceased brother or sister. Only one-half of the intestate estate will pass to the surviving spouse when the decedent leaves, for example, a child or children of a deceased child. If the decedent leaves, for example, more than one child living, or one child living and issue of one or more deceased children, only one-third of the intestate estate passes to the surviving spouse. Adopted children are treated like natural children for purposes of intestate succession. There are many rules pertaining to the disposition of an intestate estate; however, the above rules are among the most common with which families are generally concerned. If these arrangements don't comport with what you have in mind, you should consult with an attorney before your spouse, as a surviving spouse, has to do so! Anyone who is at least 18 years of age and who is of sound mind may make a will, according to the Probate Code of California. Old age, illness, physical weakness, or, for that matter, illiteracy, will not disqualify you from making a will. The Legislature has in fact noted that an individual "who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions." If it is subsequently determined, after your demise, death, passing, kicking the bucket, meeting your maker, etc., when you are no longer in a position to speak in your behalf, that you were of unsound mind or mentally incompetent at the time you prepared your will, the will can be set aside. A determination that a person is of unsound mind or lacks capacity must be supported by evidence of a deficit of one of a number of mental functions, such that the deficit "significantly impairs the person's ability to understand and appreciate the consequences of his or her actions . . . ." In determining whether an individual suffers from a deficit in mental function such that the individual lacks the capacity to execute a will, the court can take into consideration the "frequency, severity, and duration of periods of impairment." The mental functions examined include alertness and attention, information processing, and thought processes. Specifically, a court considering your level of competency would review evidence regarding your level of consciousness, orientation, short and long term memory, ability to understand or communicate with others, ability to reason, ability to carry out actions in your own rational self interest and ability to reason logically. Your will can also be contested if it can be demonstrated that you suffer from a mental disorder with symptoms including delusions or hallucinations, which resulted in your distributing your property in a way which, but for such delusions or hallucinations, you would not have done. If it is demonstrated that you executed your will as a result of fraud or undue influence, the will can similarly be set aside. In one unusual circumstance, a woman was living in Nazi Germany. Her son, who had escaped to America, advised her by letter that he would make no attempt to bring her to America unless she executed a will, prepared by him in California, which left all of her estate to him and expressly disinherited her only other heir, his sister. The woman executed the will. Ultimately, the court denied probate of the will. The moral of the story? Testimony from six feet below ground level is difficult. Tend to your affairs while you can still tend!
[This column is intended to provide general information only and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.] Reprinted from New Era Magazine Myles M. Mattenson © 1997-2002