Probate and Estate Planning in California: Issues Associated with Alzheimer’s disease and Dementia

Alzheimer’s disease and dementia increasingly afflict seniors resulting in significant estate planning complications and contentious probate and/or trust proceedings. According to the Alzheimer’s Association, one in three seniors die with Alzheimer’s disease in the U.S. Further, only 45% of those afflicted with Alzheimer’s disease report that they (or their caregivers) were ever told of their disease. Estimates from the Aging, Demographics, and Memory study and others indicate that one-third of individuals over the age of 85 are affected by dementia. However, dementia is a vague term that is used to describe lacking the mental capacity to do a multitude of cognitive activities. By 2050, these numbers are expected to more than double due to the aging population.

The prevalence of Alzheimer’s disease and the lack of knowledge of many of those afflicted combined with the broad definition of dementia can result in significant estate planning and probate complications. This article examines the legal standards applicable in estate planning and probate matters when issues of Alzheimer’s disease and dementia arise.

The California Probate Code presumes that individuals have the capacity to make decisions and that they are responsible for their acts and/or decisions. Accordingly, an individual contesting capacity must rebut this presumption. More concerning for the family dealing with an elderly relative, family members must navigate this presumption and the standards discussed below when they suspect that their family member is suffering from a condition that has advanced to a point of being characterized as incapacity.  

Capacity Legal Standards in California

The California Probate Code defines “capacity” as an individual’s ability to comprehend the nature and consequences of a decision and to make and communicate a decision. (California Probate Code § 4609) With respect to having capacity to make a will, the California Probate Code holds that an individual is incapacitated (e.g. cannot make a will) if either of the following is applicable: 

  1. The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
  2. The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.

(See California Probate Code § 6100.5)

The proliferation of “living trusts” in California has also made the capacity standard applicable to executing a trust increasingly relevant. In the past, courts would apply the capacity standard to contract to trusts. This standard held that an individual had the capacity to execute a trust instrument if he/she understands the nature and extent of the transaction. However, courts in California and other jurisdictions have increasingly applied the probate standard discussed above to trusts as a trust instrument is for all intents and purposes a testamentary document. 

The California Probate code provides color as to what factors should be used to determine whether an individual has the capacity to make a will. Specifically, the factors listed include:


  1. The individual's alertness and attention, including:a. Level of consciousness; b. Orientation to time and place; and c. Ability to concentrate.
  2. Information processing, including: a. Short and long-term memory; b.  Ability to understand and communicate with others; c. Recognition of familiar objects and persons; d. Ability to understand and appreciate quantities; e. ability to reason using abstract concepts; f. Ability to plan and organize and to carry out actions in one's self interest; and g. Logical reasoning.
  3. Deficits in function may be demonstrated by severely disorganized thinking, hallucinations, delusions, and uncontrollable, repetitive, or intrusive thoughts.

(See California Probate Code § 811)

When applied to individual cases, the definitions and standards discussed above can provide limited clarity. For those individuals attempting to deal with an elderly family member and/or a family member assessing an estate plan following the death of a relative there is little certainty. For those contemplating estate planning activities and exhibit the conditions discussed above (even in a mild form) it may be necessary to seek a certificate of independent review and/or speak with an attorney to ensure that their wishes are carried out. For those who believe that their loved ones suffered from incapacity at the time testamentary documents were executed, it may be necessary to seek an attorney who can assess whether contesting the will/trust is a viable option. 

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