San Jose, CA asked in Estate Planning, Real Estate Law, Tax Law and Elder Law for California

Q: An elderly neighbor offered to will me her home if I managed her care for the next few years. What are the issues here?

My elderly neighbor's husband just passed, and she finds herself overwhelmed by paperwork, by legal matters, and so forth. She is getting quite on in years and has no living family. She offered to will me her home if I would become power of attorney on her behalf and helped manage her affairs. What legal issues am I likely to encounter if I decide to take her up on her offer?

4 Lawyer Answers
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney
Answered
  • Estate Planning Lawyer
  • Carlsbad, CA
  • Licensed in California

A: The main issue is that it is not enforceable. Also, you are trying to take payment for something without calling it income.

Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in California

A: This type of arrangement is perfectly legal but it must be in writing and be done correctly. For one thing you will need a contract with her that as long as you do your part she will not amend or revoke her will, and you will need to overcome the presumption of undue influence with a certificate of independent evaluation to prove that there was no undue influence involved in the making of her will in your favor. You should also understand that even when you receive payment for services in kind rather than in cash, it is still taxable income, so do be prepared for that. You should talk to your tax advisor about that. Finally, you should each hire your own attorney to negotiate this arrangement. There are issues for you to consider and there are also issues for her to consider. This will probably require a total of three attorneys - one to represent you, one to represent her, and one to do the independent evaluation.

Yelena Gurevich and Gerald Barry Dorfman agree with this answer

Julie King
Julie King
Answered
  • Estate Planning Lawyer
  • Monterey, CA
  • Licensed in California

A: I agree with attorney Whitehurst. I would also add that it will be important for your elderly neighbor to have legal capacity, which means that she must have sufficient mental capacity to fully understand what she is doing. If not, any document she may sign could be voided by a court. If your neighbor has children, siblings or another family member who is expecting to receive an inheritance, that person or persons MIGHT bring a claim against you saying you exercised undue influence on her to get her to sign over her home. That's the main reason your neighbor should have a lawyer in your area prepare the paperwork. If it is done properly, there shouldn't be problems even if challenged later on.

Maurice Mandel II
Maurice Mandel II
Answered
  • Newport Beach, CA
  • Licensed in California

A: IMO, no matter how you prepare, what kind of agreement you have, you are setting yourself up to be sued by the surviving heirs over an exercise of undue influence to obtain the title to the real property. I agree with my colleagues that a major issue is the mental capacity of this individual, and that you need to take steps to ensure that there is evidence of her being independently represented and advised about your proposed transfer of her home to you. If you are living there and providing all of her care you are going to be facing assumptions and presumptions that you exerted undue influence to get her to transfer the property to you. Are you planning to have her execute a Joint tenancy deed? You will be in probate unless there is such a deed or a Trust independently prepared. You say you are handling her "legal matters." Are you an attorney? What legal training have you had? You are going to receive a Power of Attorney from her? This will put you into a FIDUCIARY RELATIONSHIP under which you must act in her interest and not your own. This will be used against you in Court if there is a fight over undue influence. Your motives may be altruistic, but the heirs are not going to see it that way unless they sign off on this plan in advance of her death.

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