In Texas, to create a proper estate plan, you must have the necessary mental capacity to execute a legal document. In general terms, mental capacity is shorthand for a person’s ability to reason, understand and make judgments for themselves. Mental capacity is a legal concept that refers to whether or not someone has sufficient understanding of what they are doing for it not to be considered legally irresponsible behavior on their part. Are you concerned about the testamentary capacity of your loved one? Are you wondering how to create a legal estate plan for them if they cannot do so themselves? Is there an already established estate plan in question that concerns you? Here, we will discuss the different types of capacity under Texas probate law, the requirements, what happens when these requirements are bypassed, and how you can get help.
In Texas, you must meet two types of capacity to create a valid will or estate plan.
To legally create a will in Texas, you must meet specific basic legal requirements.
One of the following must be true:
As long as one of these requirements is met, you are presumed to have the legal capacity to create a will.
In addition to the legal requirements, under Texas Estate Code, one must be of sound mind to legalize a will (testamentary capacity). Testamentary capacity criteria aim to prevent decisions arising from coercion or fraud.
In Texas, testamentary capacity requires you to understand four things:
It is possible for a deceased person’s descendants to seek restitution by challenging their loved one’s documents in court if they believe that the person executed their estate planning documents without mental capacity.
In most cases, the best way to prove testamentary capacity or the lack thereof is to provide evidence. This can include eyewitness statements and medical records. If your loved one has a medical diagnosis of dementia, Alzheimer’s, or other illness that may affect their mental capacity, medical records will show this. On the other hand, if they do not have a diagnosis, having family members that can attest to their mental state can benefit your case.
The document is invalid if a person signs estate planning documents without testamentary capacity. This means it cannot be enforced in court and will not carry out its intended instructions. The only way to challenge an invalid document is through the court system. An invalid will or trust can be challenged by a family member who believes they have been wronged by it. Suppose your family member dies and you learn that they left their entire estate to someone that mistreated them or assets were split unfairly between heirs, and a new will was created briefly before their death. You can contest the will in court to have a judge decide.
Undue influence is a fraud that causes the victim to act against their best interest. It does not have to be intentional and can happen when someone uses their power or authority to take advantage of a vulnerable person. It can happen in many ways and exist in many types of relationships. An attorney drafting a will that favors their interests, a parent pressuring their child into signing an inheritance agreement under threat, or a spouse convincing their partner to allow them to handle all financial and legal matters are examples of undue influence and are illegal under the law.
On the other hand, fraudulent inducement is intentional and involves:
Both are crimes punishable under the law and can stem from estate planning for individuals without the testamentary or mental capacity to do so. Fortunately, there is a legal way to go about helping your loved ones plan for their future when they can’t do so themselves.
Typically, you would need a power of attorney document to act on their behalf. However, if one does not already exist and they do not have the mental capacity to sign one now, you may petition the court for guardianship. This will require your loved one to be examined by a physician and declared mentally incompetent, and then the court will choose a guardian to handle their affairs. Guardianship proceedings are typically difficult and will cost more than establishing a power of attorney document. To prevent the need to go through guardianship, it is highly recommended to have a power of attorney in place before the possibility of mental incapacity occurring.
Are you looking to get guardianship for your loved one? You are in the right place.
At Your Legacy Legal Care™, we represent clients and their families in Houston, helping them make the best decisions for their family’s future. We can represent you when seeking guardianship while keeping your and your loved one’s best interests at heart. Our estate planning attorneys understand the intricacies of trust and estate planning in Texas and can help you establish your documents before mental incapacity may occur. Call now for a strategy session.
Kimberly Hegwood is the Managing Attorney of Your Legacy Legal Care, a Houston estate planning law firm. With more than 25 years of experience practicing law in Texas, she represents clients in a wide range of legal matters, including elder law, asset protection, estate planning, Medicaid crisis planning, probate, guardianship, and other estate planning practice areas.
Kimberly received her Juris Doctor from the South Texas College of Law and is a member of the State Bar of Texas.
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