Relatives And Friends of California Woman Contest Living Trust And Win
The relatives and close friends of Carmel Bosco contested her living trust after she died at the age of 97 and left all her assets (a $448,000 estate) to James Foley and his girlfriend, Anna Erman. Bosco apparently changed the terms of her living trust three days before her death, removing the names of these relatives and friends as beneficiaries and replacing them with Foley and Erman instead. Foley and Erman had taken care of Bosco after she was diagnosed with lung cancer.
Friends and relatives who had been named as beneficiaries in the initial trust claimed that Foley and Erman “unduly influenced the older women and as “care custodians” under California law, they are subject to a higher scrutiny in terms of being able to inherit anything. Foley and Erman said that they were not care custodians but were close, old friends of Bosco who decided to take care of her. They argued that non-paid, helping friends are not paid caregivers and should not be disqualified from inheriting from a trust. Foley and Erman gave no reason for why they took Bosco to an estate planning attorney to change the terms of her trust just three days before she died.
A trial court ruled in the couple’s favor, but an appeals court reversed the decisio. The California Supreme Court agreed with the appeals court.
Under California probate code 21350, a number of categories of people are not allowed to inherit from someone’s will:
§21350. Instrument Making Donative Transfer to Draft or of Instrument is Invalid
a. Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following:
1. The person who drafted the instrument.
2. A person who is related by blood or marriage to, is a cohabiting with, or is an employee of, the person who drafted the instrument.
3. 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 any such law partnership or law corporation.
4. Any person who has a fiduciary relationship with the transferor, including, but not limited to, a conservator or trustee, who transcribes the instrument or causes it to be transcribed.
5. A person who is related by blood or marriage to, is a cohabiting with, or is an employee of a person who is described in paragraph (4).
6. A care custodian of a dependent adult.
b. For purposes of this section, "a person who is related by blood or marriage" to a person means all of the following:
1. The person's spouse or predeceased spouse.
2. Relatives within the third degree of the person and of the person's spouse.
3. The spouse of any person described in paragraph (2). In determining any relationship under this subdivision, Sections 6406, 6407, and Chapter 2 (commencing with Section 6450) of Part 2 of Division 6 shall be applicable.
c. For purposes of this section, the term "dependent adult" has the meaning set forth in Section 15610.23 of Welfare and Institutions Code and also includes those persons who (1) are older than age 64 and (2) would be dependent adults, within the meaning of Section 15610.23, if they were between the ages of 18 and 64. The term "care custodian" has the meaning set forth in Section 15610.17 of Welfare and Institutions Code.
If you live in Monterey County, Alameda County, and the surrounding areas, and you would like to speak with an estate planning attorney regarding a living trust, contact Sagaria Law, P.C. today.
A question of who to trust in a living trust, Sierra Sun.com, December 1, 2006
California Probate Code, State Bar of California
Related Web Resources:
Do I Need A Living Trust, The State Bar of California
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