Mullin Law Firm | The Trusted Resource for Estate Planning and Elder Law for More Than 40 Years

Free 30 Minute Initial Consultation
Phone: 925-852-6014
Telephone Conferences Available via Phone and Video

Phone: 925-852-6014

Free 30 Minute Initial Consultation. Telephone Conferences Available via Phone and Video.

  1. Home
  2.  » 
  3. Estate Planning
  4.  » California law and including a caregiver in your estate plan

California law and including a caregiver in your estate plan

On Behalf of | Mar 27, 2024 | Estate Planning |

If you’re one of the growing numbers of seniors whose adult children live far away, you probably rely at least part-time on an in-home caregiver who helps you out with any number of things from cooking and cleaning to running errands to home repairs and more. This can allow you to remain in your own home rather than move into assisted living or another group setting.

It’s understandable that you want to leave them something in your estate plan – whether you’re going to be putting one in place this year or you’re considering making some changes to your current plan. However, you’re aware that caregivers are often accused – rightly or wrongly – of exerting undue influence on elderly people or even tricking them into signing something they don’t understand to gain assets and/or authority over their estate.

What does California probate law say?

In fact, California probate law even has a “rebuttable presumption” of that in some cases. Specifically, 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.”

That means the caregiver has the burden of proving that the inheritance is legitimate and not the “product of fraud or undue influence.” You can save your caregiver that burden by minimizing the chances that your adult children or other family members will dispute the will or other document in which you listed the inheritance.

How to minimize the chance of disputes

Discussing your decision to leave your caregiver something with your family can accomplish that. It should help if they understand that your caretaker has helped you remain independent and in your home (and saved you from having to rely on your kids), that you understand what you’re doing and that no one is pressuring you.

Another option is to give your caregiver some assets while you’re still around if you can do so without triggering gift taxes. It’s wise to document these gifts with your estate plan so it’s clear that these were gifts.

If you want to ensure that your caregiver and other non-relatives who are important to you are remembered in your estate plan without complications, having sound legal guidance is a good place to start.