2011 California Code
DIVISION 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS [21101 - 21700]
PART 3.5. LIMITATIONS ON TRANSFERS TO DRAFTERS AND OTHERS
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, _____ (attorney s name) _____ , have reviewed
_____ (name of instrument) _____ and counseled my client,
_____ (name of client) _____ , on the nature and consequences of the 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)
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.
(Amended by Stats. 2002, Ch. 412, Sec. 1. Effective January 1, 2003. Repealed as of January 1, 2014, pursuant to Section 21355.)
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