My Father Put His Paid Caregiver into His Will and Trust. Is that Legal?
Frequently, the person who attends to the daily needs of a elderly person near death is a Paid Caregiver. Because the elderly person may be lonely or depressed, an emotional bond may form between the Paid Caregiver and the elderly person and sometimes, the result is that a Caregiver winds up in a will or trust and may inherit valuable family property. Because of the potential for abuse in this type of situation, under California law, a gift in excess of $3,000 made to a Paid Caregiver is presumed to be invalid. The same rules also invalidates gifts made to attorneys who drafted or prepared the will or trust.
A gift to a Paid Caretaker will not be presumed invalid if a "Certificate of Independent Review" has been prepared pursuant to Probate Code Section 21351(b). Such a certificate must be prepared and signed by an impartial attorney who has reviewed the circumstances of the transfer and found it to be legitimate. The attorney must (1) counsel the testator about the nature and consequences of the intended transfer, (2) attempt to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) sign and deliver to the testator an original Certificate of Independent Review, with a copy to the drafting attorney.
Frequently the technical requirements of Probate Code Section 21351(b) are not followed. Also, a gift made to a Paid Caregiver may be invalid for other reasons, even if there has been complete compliance with Probate Code Section 21351(b), when, for example, there is a question of duress, coercion, undue influence, or fraud by the Caregiver that has not been detected by the attorney issuing the Certificate of Independent Review.
If you are an heir whose inheritance has been reduced because your mother for father made a testamentary gift to a Paid Caregiver or an attorney who draft the will or trust, you may be able to set aside the gift by taking appropriate legal action, but this type of legal action requires the type of technical knowledge only possessed by a skilled and experienced attorney.
Call us at (858) 259-7790 or contact us online.
A gift to a Paid Caretaker will not be presumed invalid if a "Certificate of Independent Review" has been prepared pursuant to Probate Code Section 21351(b). Such a certificate must be prepared and signed by an impartial attorney who has reviewed the circumstances of the transfer and found it to be legitimate. The attorney must (1) counsel the testator about the nature and consequences of the intended transfer, (2) attempt to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) sign and deliver to the testator an original Certificate of Independent Review, with a copy to the drafting attorney.
Frequently the technical requirements of Probate Code Section 21351(b) are not followed. Also, a gift made to a Paid Caregiver may be invalid for other reasons, even if there has been complete compliance with Probate Code Section 21351(b), when, for example, there is a question of duress, coercion, undue influence, or fraud by the Caregiver that has not been detected by the attorney issuing the Certificate of Independent Review.
If you are an heir whose inheritance has been reduced because your mother for father made a testamentary gift to a Paid Caregiver or an attorney who draft the will or trust, you may be able to set aside the gift by taking appropriate legal action, but this type of legal action requires the type of technical knowledge only possessed by a skilled and experienced attorney.
Call us at (858) 259-7790 or contact us online.
