Estate planning for roommates and live in caregivers.

    If you are an elder (65 years or older) who has invited a friend or acquaintance to move in with you rent free to give you companionship and help with household chores, and you want to make a gift by will or trust to that friend, the gift, will or trust may be invalid even if you have not paid that person any money to assist you with your shopping, cooking, cleaning, yardwork or transportation. Gifts made to statutorily defined "care custodians" will be presumed to be invalid unless certain exceptions are met. If the will or trust is reviewed by an independent attorney who counsels you on the effect of the transfer and who determines that the transfer is not the result of fraud or undue influence then a written Certificate of Independent Review can be prepared by the independent attorney asserting the you have been advised and counseled and that in the attorney's opinion the transfer is not the product of fraud or undue influence. Also, if the care custodian and you had a pre-existing relationship before she began sharing chores and otherwise assisting you, then the gift may be valid so long as the beneficiary has not received "remuneration" for the services as used in the statute, Probate Code sec. 21362.

     Therefore, even if no money is ever paid to the gift beneficiary by you, just the provision of free room and board is considered to be remuneration within the meaning of this law, so that there will be a legal presumption that the gift is invalid as being the product of fraud or undue influence. That was the holding in the recent California Court of Appeal case of Robinson v. Gutierrez, C097301, Filed December 26, 2023.  In that case the maker of the gift wanted to to have a housemate to assist her on an as-needed basis. Her acquaintance received free room and board in exchange for performing household duties of cleaning and laundry, and driving the decedent as needed. She never received any payment other than her free room and board. The appellate court held that because she received free room and board she did not fall under an exception to the definition of a "care custodian" whose gift would be presumptively invalid. 

     If you or a loved one has entered into an arrangement where you have invited a friend or acquaintance to live with you rent free in order to have a companion and assistance with household chores and transportation and you want to leave that person a gift under your will or trust or otherwise, you should consult an attorney experienced in estate planning and drafting of wills and trusts in order to ensure that your otherwise innocent gift will not be declared invalid under Probate Code sec. 21362 and other provisions of California law. Contact Curry and Curry, Attorneys at Law for legal advice and preparation of your estate plan by an experienced and knowledgeable estate planning attorney with over 30 years of legal experience.

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