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June 25, 2021

Can my parents create a Will or Trust if they are seriously ill? When is it too late?

When someone is particularly ill, is not an ideal time to create an estate plan–it should be avoided if possible. However, sooner is always better!

The downsides of waiting until you (or your parents/grandparents) are late in years or terminally ill, include:

(1) You never know when your health could quickly fail (or suffer an accident).

(2) Once someone is too ill, they may not be able to sign legal documents. (Or they may lack the required mental capacity).

(3) Legal documents created when someone is seriously ill or dying, could be more likely to be challenged. Whether true or not, the testator or settlor’s intent is more likely to be questioned if someone could argue they were susceptible to undue influence at the time of signing.

How do I know if myself or a parent is mentally healthy enough to create a Will or Trust?

In Missouri, an individual has “testamentary capacity” (the required mental capacity to create a Will or Trust), if:

(1) The testator is of sound mind.

(2) The testator understands the ordinary affairs of life.

(3) Knows the value and extent of his or her property.

(4) Knows who would receive his or her property if there was no Will or Trust—and is able to intelligently weigh and appreciate his or her obligations to those people. Lewis v. McCullough, 413 S.W.2d 499, 505 (Mo. 1967).

*Additionally, the testator must be at least 18 years old.

Understandably, some people do not want to think about legacy planning while they are alive and healthy. It can be scary, uncomfortable, or potentially bring up contentious topics (if not everyone sees eye to eye on the disposition of certain assets). Yet ironically, when you are young and healthy is the best time to plan for what happens when you die.

Frequently, clients describe estate planning as a process that provides peace of mind. Sooner is always better when it comes to preparing a will, trust, or power of attorney documents!

This article represents the opinion of the author and is intended for educational purposes. This article does not constitute legal advice, nor does it create an attorney-client relationship. One should always consult with an experienced attorney before making estate planning decisions.

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