Gifts to Caregivers

An elderly woman lives alone in an apartment in the San Francisco area. She has two children, a son and a daughter. Her relationship with her children has been rocky over the years. There were many stretches in which she was not on speaking terms with either child. While both children married and now have children of their own, they rarely bring the grandchildren for a visit to their grandmother.

As this woman aged, she was in need of caregivers. First, caregivers came a few times a week for a few hours. Eventually, she needed more and more help. During these times, a caregiver named Emily was always with her. Emily started with this woman from the beginning and, as she aged and required more help, Emily was there with her.

The woman grew close to Emily. As she had little contact with family, Emily provided a helping presence. She called Emily early in the morning or late at night just to talk. Emily became the loving daughter that she never had.

One day, while Emily was in the apartment, the woman started wheezing and then had difficulty breathing. Emily immediately dialed 9-1-1 and waited for an ambulance. The ambulance arrived and rushed the woman to the emergency room. Emily was with her the entire time, even though her shift ended. Tragically, the woman passed away later that night.

A few months later. The woman’s lawyer presented her will to the children. The woman explicitly stated in her will that he children will not inherit anything. It listed items that her children did and why they are not deserving of an inheritance. 60% of her assets were to go to her grandchildren on an equal basis, with the caveat that those assets are to be distributed in a way that only the grandchildren benefited from the property; 10% would go to various charities; the remaining 30% will go to Emily for being the daughter she never had.

After an evaluation of the value of her apartment, jewelry, savings, and other investments, the woman’s estate was worth over $3 million. This meant that after various administrative payments, Emily was to receive several hundred thousand dollars.

The children objected to the considerable payout to Emily. They brought their case to the California Probate Court, which ruled in favor of the children.

Gifts to Caregivers

The California Probate Code Section 21380 provides: “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:

A care custodian of a transferor who is a dependent adult, but only 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. The presumption created by this section is a presumption affecting the burden of proof. 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.”

Therefore, a will providing for gifts to caregivers are presumed fraud and Emily would likely lose.

Looking to draft a will? Speak with the law firm of Melanie Tavare, a California trust and estates attorney.

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