If you’re preparing to put your estate plan in place, you likely hope to make things easier for your family after you’re gone and prevent confusion and conflict over your wishes. Even people who try to be responsible, however, can unknowingly create conflict and even will contests if they don’t fully understand the law.
One potentially thorny matter involves inheritances left to professional caregivers. When people choose to remain in their homes as they age, they often come to depend on professional caregivers to help them with errands, daily chores, self-care and just a source of company and conversation. It’s understandable that they may choose to leave them something in their will.
Unfortunately, some dishonest caregivers take advantage of the people they work for, particularly if they’re elderly and becoming cognitively impaired, to manipulate them into including them as a beneficiary. That’s why California law puts some roadblocks up to help ensure that a caregiver’s inheritance is legitimate.
Understanding “rebuttable presumption”
The law 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.”
That means if a caregiver is accused of fraudulently being listed as a beneficiary, there is a “rebuttable presumption” that they have engaged in fraud. The caregiver would have to prove to the court that their inheritance is legitimate.
Preventing allegations of fraud
There are steps you can take during estate planning to prevent such unpleasantness for your caregiver and your family. Communication is a good first step.
Let your family know that you’re leaving something to your professional caregiver. It can help to focus on how much they’ve helped you (and your family) by caring for you, so you don’t have to rely on them as much. You may choose to discuss this in front of your estate planning professional and to put a brief explanation in writing as part of your estate plan.
If you prefer to gift your caregiver something while you’re still around (that you can afford to part with), you can do that. It’s wise to let your family know and codify the gift if you believe they could question whether theft was involved.
What you should not do is simply promise your caregiver something after you’re gone. No one is obligated to give them anything not designated appropriately as an inheritance in your estate plan.
Getting sound legal guidance is the best first step in protecting your wishes and preventing conflict after you’re gone.
