This often comes as a shock to the family considering that the amendment was executed during a time when their mother or father suffered from any one or a combination of the following factors:

• The parent was ill or suffered from a debilitating medical condition;
• The parent suffered from cognitive impairments such as dementia or Alzheimer’s disease;
• The parent suffered with memory loss;
• The parent had difficulty communicating with others;
• The parent lived alone and required assistance for daily living;
• The parent required companionship, housekeeping, shopping, cooking, and/or assistance with finances and required the hired help of others to accomplish these tasks.

Families confronted with this situation often do not have direct evidence that the caretaker/caregiver, nurse, or other care provider unduly influenced or coerced their mother or father into making changes to their estate plan. Without having direct evidence of any wrongdoing, are the gifts to caregivers/caretaker, nurses or other care providers valid?

Fortunately for families, California has enacted laws which impose statutory presumptions that certain types of gifts are presumed to be as the result of undue influence and fraud and therefore are invalid.

Let’s consider the impact of several important California Probate Code Sections.

California Probate Code Section 21380 states in part:

(a) 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:

(3) 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.

What does this section mean?

It means that a gift to a care custodian made in a will, trust, deed, or other writing that designates a care custodian as a beneficiary is presumed to be the product of fraud or undue influence if the person providing the gift is a dependent adult and the gift was made during a time the care custodian provided services, or within 90 days before or after that period.

• Caretakers receive inheritance:

Caretakers are not allowed to receive money in a will under California law. If a caretaker receives financial compensation, land, property, or other types of assets under a will from someone they are caring for, a lawyer can step in and use the law to return the assets to the rightful person.  This type of caretaking theft is discussed more in detail here.

• Forged Will:

A fake will or a fake amendment to the real will, occurs more often than one would expect.  However, it is not discussed publicly often, as these types of situations are often embarrassing and cause enormous tension in the family.  These faked wills can be reversed through the courts. 

• Destroyed Documents:

When a beneficiary to a will destroys a will, documents related to the will, or an amendment to a will, the law classifies these actions as fraud.  We represent the family members who have received nothing from the will or after someone has passed away when they should have received a heir, beneficiary or creditor, a contingency fee arrangement may work.

Our firm specializes in the area of contested probate alone and does not take hourly probate cases.  In a contingency agreement, the most common arrangement is for the attorney to receive 33 percent of the recovery if the case settles, or 40 percent if the case proceeds to trial.  This allows us to do free consultations without a charge.  Our office advances the costs and pays for everything until there is a recovery.

You do not need to pay us unless we win.

Inheritance Theft Fee Agreements:

There are two types of fee agreements. One is for hourly work and the other is a contingency fee agreement.  An hourly lawyer bills by the hour.  A contingency lawyer does not charge hourly, but receives a portion (generally 33 – 40%) of the recovery when they win the case.  The contingency fee lawyer does not receive compensation if there is no recovery.