If one of your goals this year is to finally put an estate plan in place, you’re likely thinking about who, beyond your family, you want to leave some assets. If you’re a senior living on your own, you may have a caregiver who visits regularly to help you out with things you can no longer do on your own. It’s natural that you have grown fond of them and may be considering including them in your will.
You have every right to do that. However, it’s important to take steps to help ensure that the inheritance won’t be challenged in court by your family. Because of unfortunate cases where caregivers (even relatives) have taken advantage of older people to pressure them or even engage in fraud to get themselves a substantial inheritance and/or a fiduciary role over their estate plan.
That’s why, when family members of a deceased person challenge a caregiver’s inheritance, courts often put the responsibility on the caregiver to prove that the deceased did knowingly and legitimately include them – meaning they have a “rebuttable presumption” that they are guilty of fraud or undue influence. Multiple Ohio courts have applied this rebuttable presumption in rulings on will challenges.
How to prevent challenges to your will
When creating your estate plan, you can take steps to prevent a battle between your family and your caregiver after you’re gone. Let’s look at just a few.
First, it’s important to let your loved ones (at least your chosen executor) know that you’re leaving your caregiver an inheritance. This might not be an easy conversation, but at least they’ll know the decision was yours.
Second, it’s important to codify the inheritance in your will, living trust or other estate plan document. Don’t just promise your caregiver they will receive something. Even if your family promises to, they have no obligation to do so if it’s not properly detailed in your estate plan. Also, don’t tell your caregiver (or anyone) they can take something after you’re gone. People can’t just take from the estate after someone dies.
You may choose to give your caregiver an inheritance while you’re still around. If it’s something you can afford to part with, that’s fine. However, if it’s anything of value, tell your family – or better yet, put it in writing with your estate plan — so your caregiver isn’t accused of stealing.
Another way to help your family have confidence that the wishes laid out in your estate plan are indeed yours and that you aren’t being unduly influenced or tricked is to partner with an experienced legal professional to create your estate plan. This can go a long way to minimizing or eliminating conflicts and challenges after you’re gone.
