If you’re like many California seniors, you rely on a paid in-home caregiver or maybe a friend or neighbor to help you out with things you’re no longer able to do for yourself. You may even have more contact with that caregiver than with your adult children – especially if they don’t live nearby.
As you develop or modify your estate plan, you’re considering leaving some money or other assets to this caregiver. However, you’re concerned that your adult children will dispute this bequest – even if you’re still providing generously for them. You’ve heard of will contests where family members have accused caregivers of exerting undue influence on their deceased loved one. You don’t want that to happen. What’s the best way to avoid it?
Communication is key
It’s important to discuss at least the broad outlines of your estate plan with your children and other close family members who are included in it and/or will be administrators. Let them know that you plan to include your caregiver and why. It may help to point out that this person has helped you remain in your home and not have to call them whenever you need something fixed or have a doctor’s appointment.
What does California law say?
There’s no question that some people abuse their position of power over elderly people suffering cognitive decline to pressure or trick them into leaving assets to them that they didn’t intend to. That’s addressed under California probate law.
The law, in part, states, “A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence…if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.” One of those persons is a “care custodian of a transferor who is a dependent adult.”
The law further states, “The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.” If you’re not certain after talking to your family that they won’t dispute an inheritance you leave a caregiver, it may be wise to consider other steps to provide this “clear and convincing evidence.”
Having experienced legal guidance can help you ensure that your estate plan reflects your wishes and prevent costly, time-consuming and combative legal actions after you’re gone.