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