No one wants their loved ones to become involved in a court battle over their estate after they’re gone. That’s one reason people create estate plans. They want their wishes to be clear and to be carried out as they intend. Inheritances left to non-family caregivers are still a common reason for probate litigation.
With more people choosing to remain in their own home as they get older and with families often spread out over the country and the world, professional in-home caregivers often become the people closest to seniors in their final years.
Preventing accusations of undue influence
You have every right to include your caregiver in your will in whatever way you choose. However, if you’re leaving them considerable assets or modifying your current will or living trust to add them, it’s crucial to make sure that your close family members (like adult children) are aware that you’re doing this and understand that you’re choosing to do so. Otherwise, your caregiver might have to deal with a court challenge in which they’re accused of exerting “undue influence” on you.
Unfortunately, that’s a common assumption because it happens far too often when the person being cared for is cognitively impaired, very ill or heavily medicated. In fact, Ohio courts have determined that non-relative caregivers are among those who have a “rebuttable presumption” of undue influence. That means if challenged, they have to provide evidence that they didn’t exert undue influence over someone.
Two things you can do
As noted, it’s important to discuss your wishes with your loved ones. You don’t need their permission, but they should know that this is your choice and you fully understand what you’re doing. You can explain how much your caregiver has done for you over the years (and how they’ve saved them from having to rearrange their lives to care for you).
You may also choose to gift your caregiver some of your assets while you’re still around. Just be careful not to trigger gift taxes. It’s best to codify these gifts in your estate plan or elsewhere so your caregiver isn’t accused of stealing. Also, don’t “promise” them they can have certain things after you’re gone unless they’re listed in your will.
If you have experienced estate planning guidance, you can better ensure that you’re taking every reasonable step to prevent legal battles among loved ones after you’re gone.