Do you have a caregiver who has helped you remain in your own home as you’ve gotten older? They may provide a little – or a lot – of assistance with household chores and “activities of daily living” like dressing and bathing as well as companionship.
You may want to include them in your estate plan. However, you’re concerned that your adult children, grandchildren and other relatives may question that decision – even if you’re leaving them a fraction of what your relatives will receive. You don’t want them contesting your will after you’re gone.
How California probate law protects people from dishonest caregivers
Unfortunately, some dishonest caregivers have made people – and even courts – suspicious of inheritances and other provisions in estate plans involving non-family caregivers. They’ve taken advantage of elderly people’s vulnerability and cognitive decline to exert undue influence on them to change their estate plan or forge their signature on documents.
California law has a “rebuttable presumption” involving caregivers that may require them to prove their inheritance is valid if it’s challenged. It states that a “donative transfer…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.”
You don’t want your caregiver or anyone else who has helped you as you’ve gotten older being challenged if you leave them something. That’s why it’s important to take steps to prevent such concerns.
How to prevent challenges
Communication is key. If your family is aware that you’re leaving something to one or more people outside the family, they won’t be surprised or suspicious after you’re gone. It’s understandable that you don’t want to get into an argument about it, but it’s important to let them know how much a beneficiary has helped you – and likely saved them time and trouble.
You may choose to give your caregiver something valuable while you’re still around instead of including them in your estate plan. However, it’s important to tell your loved ones about that as well so that they don’t assume the assets have been stolen.
What you shouldn’t do is promise your caregiver or anyone something after you’re gone if you don’t address this intent in your estate plan. No one is obligated to follow your wishes if they aren’t codified. By seeking experienced estate planning guidance both when you create your plan and if you modify it, you can minimize the chances of it being challenged. This can help save all those you care about from conflict after you’re gone.