March 10, 2005

Devries Column

Leaving your estate to your caregiver and others may create legal issues

This week’s question:
I am really getting concerned about my parents. They live here in the Almaden Valley and are getting up in years. My concern is that they may leave a sizeable portion (or all) of their estate to their caregiver and none of their estate to my siblings and me. Is there anything my brothers and sister and I can do to stop this?

Ken K.
Almaden Valley


Dear Ken:
You might be interested to know that there are certain limitations on any transfers of money or property to certain drafters of documents, care custodians, and others.

These limitations are found in the Probate Code of the State of California, including §21350. This law provides that except as provided in §21351, no provision of any instrument shall be valid to make any donative transfer to any of the following:

The person who drafted the instrument.

A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, the person who drafted the instrument.

Any partner or shareholder of any law partnership or law corporation in which the person described in paragraph (1) has an ownership interest, and any employee of that law partnership or law corporation.

Any person who has a fiduciary relationship with the transferor, including, but not limited to, a conservator or trustee who transcribes the instrument of causes it to be transcribed.

A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of a person who is described in paragraph 4 (above).

A care custodian of a dependent adult who is the transferor.

A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, a person who is described in paragraph (6) (above).

The Probate section goes on to define what is “a person who is related by blood or marriage”.

Under §21351 of the Probate Code, the above limitations may not apply in certain situations, such as blood or marriage relationships. Also, the above limitations may not apply if the instrument is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor an original certificate in substantially the following form, with a copy delivered to the drafter:

“CERTIFICATE OF INDEPENDENT REVIEW”. I, ______ (attorney’s name), have reviewed _______(name of instrument) and counseled my client, ____(name of client), on the nature and consequences of the transfer, or transfers, of property to ____(name of potentially disqualified person) contained in the instrument. I am so disassociated from the interest of the transferee as to be in a position to advise my client independently, impartially, and confidentially as to the consequences of the transfer. On the basis of this counsel, I conclude that the transfer, or transfers, in the instrument that otherwise might be invalid under §21350 of the Probate Code are valid because the transfer, or transfers, are not the product of fraud, menace, duress, or undue influence. _____(Name of Attorney) _______(Date)”

So you can see, Ken, that there are some protections available or potentially available in your and your parents’ situation. You might want to have a consultation with your attorney to explore these issues in more detail, and of course, a long discussion with your parents to ensure they fully understand all of the consequences. Your parents may also benefit from a consultation and possible testing by their family physician.

Good luck.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Visit his Web site at www.almadenvalleylawyers.com to view Almaden Times columns since 1986. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.