by Francis Burton Doyle, Esq., WealthPLAN
Perhaps the most insidious statute in California is the one, which inhibits gifts to innocent individuals who in good faith assist friends and neighbors with their personal or financial affairs and then find that testamentary gifts to them are subject to being voided.
The law was designed to prevent drafting attorneys from including themselves in their client’s testamentary plans. When the law was limited to that purpose it was a good and necessary law.
However, fuzzy thinking elder care advocates extended the law to include other categories of individuals so that virtually anyone who assists an elder is subject to the law.
Estate planning attorneys need to be aware of the sweeping nature of the law and the requirement that if a beneficiary falls under it they must prove by clear and convincing evidence that the gift they are to receive was not procured by fraud, menace, duress or undue influence.
For estate planning attorneys it’s a trap because “Certificates of Independent” review may need to be obtained in many, many instances where the need for them defies common sense. For example, if a client that you have represented for many years wants to leave a gift to a neighbor who is helping them by taking them to doctor appointments or other errands it may be necessary to have an independent attorney issue a certificate of independent review in order to prevent the gift from falling into the suspect category under the statute.
Quote to Ponder
“Even if you’re on the right track, you’ll get run over
if you just sit there.”
~Will Rogers
About the Author:
Francis Burton Doyle, Esq., is the founder of WealthPLAN, with over 30 years of experience in Tax, Estate-Planning Probate, Trust Administration and Litigation. He is Certified Legal Specialist in Taxation Law and Probate, Estate Planning and Trust Law (California State Bar). Frank is the Past President of both the Santa Clara County Estate Planning Council & the Silicon Valley Planned Giving Committee. Frank is also the Past Chair of the Annual Jerry A. Kasner Symposium, Planning Committee, Santa Clara University, School of Law. Mr. Doyle provides all the course development and instruction for the Advanced Legal Training Institute.
Legal Seminars | Customized In-house MCLE Training
Legal Consulting & Coaching | Speaking | Client Support Services
©copyright 2006-2017 | all rights reserved worldwide