2005 California Probate Code Sections 21350-21356 PART 3.5. LIMITATIONS ON TRANSFERS TO DRAFTERS AND OTHERS

PROBATE CODE
SECTION 21350-21356

21350.  (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 domestic
partner of, is a cohabitant 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 that 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 domestic
partner of, is a cohabitant with, or is an employee of a person who
is described in paragraph (4).
   (6) A care custodian of a dependent adult who is the transferor.
   (7) 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).
   (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 as set forth in Section 15610.23 of the 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 as set forth in Section
15610.17 of the Welfare and Institutions Code.
   (d) For purposes of this section, "domestic partner" means a
domestic partner as defined under Section 297 of the Family Code.
21350.5.  For purposes of this part, "disqualified person" means a
person specified in subdivision (a) of Section 21350, but only in
cases where Section 21351 does not apply.
21351.  Section 21350 does not apply if any of the following
conditions are met:
   (a) The transferor is related by blood or marriage to, is a
cohabitant with, or is the registered domestic partner, pursuant to
Division 2.5 (commencing with Section 297) of the Family Code, of the
transferee or the person who drafted the instrument.  For purposes
of this section, "cohabitant" has the meaning set forth in Section
13700 of the Penal Code.  This subdivision shall retroactively apply
to an instrument that becomes irrevocable on or after July 1, 1993.
   (b) 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, _______________________________________________, have reviewed
                (attorney's name)
__________________________________________ and counseled my client,
       (name of instrument)
______________________________, on the nature and consequences of
the
         (name of client)
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 Section 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)
Any attorney whose written engagement signed by the client is
expressly limited solely to the preparation of a certificate under
this subdivision, including the prior counseling, shall not be
considered to otherwise represent the client.
   (c) After full disclosure of the relationships of the persons
involved, the instrument is approved pursuant to an order under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of
Division 4.
   (d) The court determines, upon clear and convincing evidence, but
not based solely upon the testimony of any person described in
subdivision (a) of Section 21350, that the transfer was not the
product of fraud, menace, duress, or undue influence.  If the court
finds that the transfer was the product of fraud, menace, duress, or
undue influence, the disqualified person shall bear all costs of the
proceeding, including reasonable attorney's fees.
   (e) Subdivision (d) shall apply only to the following instruments:
   (1) Any instrument other than one making a transfer to a person
described in paragraph (1) of subdivision (a) of Section 21350.
   (2) Any instrument executed on or before July 1, 1993, by a person
who was a resident of this state at the time the instrument was
executed.
   (3) Any instrument executed by a resident of California who was
not a resident at the time the instrument was executed.
   (f) The transferee is a federal, state, or local public entity, an
entity that qualifies for an exemption from taxation under Section
501(c)(3) or 501(c)(19) of the Internal Revenue Code, or a trust
holding an interest for this entity, but only to the extent of the
interest of the entity, or the trustee of this trust.  This
subdivision shall retroactively apply to an instrument that becomes
irrevocable on or after July 1, 1993.
   (g) For purposes of this section, "related by blood or marriage"
shall include persons within the fifth degree or heirs of the
transferor.
   (h) The transfer does not exceed the sum of three thousand dollars
($3,000).  This subdivision shall not apply if the total value of
the property in the estate of the transferor does not exceed the
amount prescribed in Section 13100.
   (i) The transfer is made by an instrument executed by a
nonresident of California who was not a resident at the time the
instrument was executed, and that was not signed within California.
21352.  No person shall be liable for making any transfer pursuant
to an instrument that is prohibited by this part unless that person
has received actual notice of the possible invalidity of the transfer
to the disqualified person under Section 21350 prior to making the
transfer.  A person who receives actual notice of the possible
invalidity of a transfer prior to the transfer shall not be held
liable for failing to make the transfer unless the validity of the
transfer has been conclusively determined by a court.
21353.  If a transfer fails under this part, the transfer shall be
made as if the disqualified person predeceased the transferor without
spouse or issue, but only to the extent that the value of the
transfer exceeds the intestate interest of the disqualified person.
21354.  This part applies notwithstanding a contrary provision in
the instrument.
21355.  This part shall apply to instruments that become irrevocable
on or after September 1, 1993.  For the purposes of this section, an
instrument which is otherwise revocable or amendable shall be deemed
to be irrevocable if on September 1, 1993, the transferor by reason
of incapacity was unable to change the disposition of his or her
property and did not regain capacity before the date of his or her
death.
21356.  An action to establish the invalidity of any transfer
described in Section 21350 can only be commenced within the periods
prescribed in this section as follows:
   (a) In case of a transfer by will, at any time after letters are
first issued to a general representative and before an order for
final distribution is made.
   (b) In case of any transfer other than by will, within the later
of three years after the transfer becomes irrevocable or three years
from the date the person bringing the action discovers, or reasonably
should have discovered, the facts material to the transfer.


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