AARP Hearing Center
As a will and trust attorney, I regularly assist clients who want to leave one child a bigger inheritance than their other children. Often that’s because that child has been stepping in as caregiver for their mom or dad in their later years. Perhaps they’ve given up their own job, done the cooking and cleaning, provided rides to appointments, been a companion and handled a million other small tasks that caregivers do. Although the client loves their other children, those children aren’t as involved in the client’s life. Now the client wants to compensate the child for the gift of caregiving. When that happens, we always make sure to have a big talk about whether that’s going to make the other kids angry — and even mad enough to sue.
Litigation over a family member’s will is the last thing anyone wants. A surefire way to invite a lawsuit is to be involved in a parent’s will preparation ... especially if that will leaves you more money than everyone else.
If a relative believes you forced your parent to make a will or trust to increase your inheritance, they may accuse you of “undue influence.” And when your mom or dad passes away, a court may declare that the will is void if it has enough reason to believe that you coerced your parent into writing their will to benefit you.
Making a plan
Caregivers and care partners should absolutely have a conversation about getting an estate plan completed. It’s a necessary and helpful part of the life and death process, and it makes everything easier for both caregiver and patient. But the caregiver who is a future beneficiary of an inheritance needs to be aware of what a court will look at to see if there’s “undue influence.” If you’re going to assist your parents when they meet with attorneys, tax professionals or financial advisers to discuss their estate plan, there are ways you can avoid the appearance of influence over your parents’ decisions. This will help protect your parents now and may guard you from a future lawsuit. Most important, it will ensure that your parents’ wishes are upheld when they pass on.
First, your parents should communicate independently with the law firm to set up their appointment, and meet with the attorney without any of their beneficiaries present. This may not always be practical — many older adults don’t use email or schedule their own appointments. In that case, and especially if you selected the law firm, the attorney you are working with should make a point of meeting separately with your parents before or on the day of their appointment. That will give the legal representative an opportunity to make sure your parents know why they’re meeting with an attorney and that they indeed want to be there. It’s also a chance for your parents to speak freely and confidentially. Once they’ve done so, they may elect to have you in future meetings with the attorney. But your parents will be the attorney’s client, and they should always start with a one-on-one talk, without you in the room.
