When most people hear “will and trust,” they don’t imagine it would be valuable for them to start considering yet. Only our grandparents need estate planning, right? Not true. Ultimately, we encourage people of all ages to be prepared. There is no better gift you can give to yourself and your loved ones than to be proactive and get your estate in order while you’re still mentally and physically able. Practically, we know that this isn’t always possible, which may lead you to wonder: is it ever “too late” execute an estate plan?

In short, yes, it can be “too late” for some to execute their documents. Your estate planning attorney must be confident that you have the capacity to understand the implications of what you’re asking they draft for you. Depending on if you require just a simple will or both a will and a trust, your attorney will judge your capacity based on two different standards.

Testamentary Capacity (Probate Code Section 6100.5)

Testamentary capacity is the capacity required to create a valid will in the state of California. One must be an adult over the age of eighteen, not currently experiencing hallucinations or delusions, who understands the following terms:

  1. The nature of the act (i.e. the content of their will)
  2. The contents of their estate (i.e. their assets)
  3. Who their legal heirs and family members are

Legal Capacity (Probate Code Section 811)

Legal capacity requires a much higher standard since a trust is technically a contract. In addition to having testamentary capacity, someone with legal capacity must understand the consequences of creating a trust for themselves and their beneficiaries and legal heirs, even if they differ. They must also understand the risks, benefits, and alternatives to creating a trust.

The purpose of a trust is to avoid probate altogether, yet if a person doesn’t have legal capacity when they create their documents, their loved ones will still end up in court. The reason it’s so important to be proactive with your estate is because no one can predict the future, but you can take the steps necessary to protect your assets and family after your death.

Ultimately, it’s up to the court to decide if an individual had the appropriate capacity to create a will or trust when they did so. They can request professional opinions from doctors and copies of private medical records to make their determination.

If you believe that you or a loved one are being unduly influenced due to lack of capacity, please consider contacting LA County Adult Protective Services (APS) for guidance.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Brittany Britton is licensed to practice law in the state of California only.