• Facebook
  • Youtube
  • Linkedin
Call Us At: (408) 553-0801
Lonich Patton Ehrlich Policastri
  • Home
  • Locations
    • San Jose
    • Santa Cruz
  • About
    • Why LPEP
    • Our Attorneys
  • Practice Areas
    • Family Law
      • Annulments
      • Certified Family Law Specialists
      • Child Custody and Visitation
      • Child Support
      • Divorce and Your Estate
      • Divorce Litigation
      • Divorce Planning
      • Domestic Partnerships
      • Domestic Violence
      • Enforcement and Modifications
      • Extramarital Affairs
      • Grandparents’ Rights
      • Harassment
      • Legal Separation
      • Mediation and Collaborative Divorce
      • Parental Relocations
      • Paternity
      • Postnuptial Agreements
      • Prenuptial Agreements
      • Property Division
      • Restraining Orders
      • Same Sex Divorce
      • Spousal Support and Alimony
    • Estate Planning
      • Business Succession Planning
      • Power of Attorney
      • Probate
      • Trust Administration
      • Trust and Probate Litigation
      • Trusts
      • Wills
  • FAQ
    • Estate Planning FAQ
    • Family Law FAQ
  • Blog
  • Pay Now
  • Resources
    • Family Law Resources
    • Estate Planning Resources
  • Contact Us
    • Careers
  • Get a Free Consultation
  • Menu
Lonich Patton Ehrlich Policastri

Gifts to Caregivers Prohibited

October 31, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

An estate plan may be created to do almost anything a person desires.  For example, a will can distribute the decedent’s personal and/or real property; passing on specific items to a relative, friend, or organization.  A trust can hold specific property or funds for a designated beneficiary; any and all terms of which may be determined by the trustor.  While drafting these estate planning documents, it’s important to keep in mind restrictions that state laws impose on to whom transfers can be made.  In California, an important restriction is outlined in Probate Code section 21350.

Section 21350 outlines California’s limitations on transfers to “drafters, care custodians, and others.”  Specifically, provisions that make donative transfers (i.e. gifts) to (1) the person who drafted the instrument, (2) any person who has a fiduciary relationship with the transferor, or (3) a care custodian, among others, are strictly prohibited.  Despite the statute’s clear restrictions, there have been issues relating to who exactly qualifies under these categories.  In Estate of Austin, 188 Cal. App. 4th 512 (2010), the Fifth District California Court of Appeal needed to decide whether a former stepdaughter should be considered a “care custodian” under the statute and thus disqualified from receiving gifts.  The former stepdaughter took her former stepfather to his doctor appointments, prepared meals for him, and helped out whenever she could after he broke his hip and while he recovered from triple bypass surgery.  Decedent’s daughter filed a lawsuit seeking to disqualify her former stepsister from receiving gift transfers totaling about $185,000.

Earlier in the case, the Fresno County Superior Court ruled that the gifts to the former stepdaughter were valid.  The Appellate Court affirmed.  A care custodian is defined by California case law as someone who provides care or services to elders or dependent adults, whether paid or as a result of preexisting personal friendship.  Health or social services were defined as including cooking, gardening, running errands, assisting with banking, and driving to doctor’s appointments.  The Appellate Court found that the former stepdaughter’s “services” could not be reasonably characterized as providing substantial, ongoing health or social services and she was thus not a care custodian.  Further, the decedent made the gift transfers to the former stepdaughter while he was residing in a nursing home, when the former stepdaughter was not providing any services to him.  Therefore, the gift transfers were valid and the former stepdaughter was not disqualified from receiving them.

Statutes do not always clearly define who falls into certain categories, the courts are able to make decisions based on specific factual scenarios.  If you care for an elder relative and think you may be considered a care custodian, an attorney can help clarify what, if any, impact this may have on your ability to inherit from that relative.  If you are interested in learning more about individual gift transfers or estate planning, please contact  the San Jose estate planning attorneys at Lonich Patton Ehrlich Policastri, LLP.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Tags: elder law, estate planning, gift transfers, gifts, gifts to caregivers, wills and trusts
Share this entry
  • Share on Facebook
  • Share on Twitter
  • Share on Linkedin
  • Share by Mail
https://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.png 0 0 Lonich Patton Ehrlich Policastri https://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.png Lonich Patton Ehrlich Policastri2011-10-31 14:59:412011-10-31 14:59:41Gifts to Caregivers Prohibited
You might also like
What Happens to Your Facebook Page When You Die?
Planning Ahead for the Costs of Nursing Homes
Question: What happens to your Facebook account when you die?
Lonich Patton Erlich Policastri In The Community!
What to Prepare Before Meeting Your Estate Planning Attorney
Meet our Estate Planning Attorneys at the LPEP booth at the Los Gatos Fiesta de Artes
0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Learn more about estate planning with a free resource
Read all about family law and child custody
Learn more about family law matters such as private divorce counseling.

Categories

  • Business Law
  • Estate Planning
  • Family Law
  • Firm News
  • In the Community
  • News
  • Personal
  • Probate
  • Uncategorized

Archives

  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • July 2020
  • June 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • April 2019
  • March 2019
  • February 2019
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • December 2017
  • November 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009

Free 30-Minute Family Law or Estate Planning Consultation

0 + 2 = ?

Link to: Contact Us

Contact Us

LONICH PATTON EHRLICH POLICASTRI

1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com

Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, especially San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, and San Benito. For a full listing of areas where we practice, please click here.

DISCLAIMER

This web site is intended for informational purposes only and is not legal advice. Nothing in the site is to be considered as either creating an attorney-client relationship between the reader and Lonich Patton Ehrlich Policastri or as rendering of legal advice for any specific matter. Readers are responsible for obtaining such advice from their own legal counsel. No client or other reader should act or refrain from acting on the basis of any information contained in Lonich Patton Ehrlich Policastri Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.

About | Why LPEP | Contact | Blog

© 2019 Copyright Lonich Patton Ehrlich Policastri. All rights reserved.

No-Contest Clauses in Trusts 2011 Tax Laws Affecting the Inheritance of Real Property
Scroll to top

LPEP COVID-19 Office Protocol