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Probate Code 21350 - 21356 (effective through 12/31/13)

21350    Prohibited transferees; definitions


21350    Prohibited transferees; definitions
(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    Disqualified person
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    Exceptions to 21350; conditions
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    Liability for prohibited transfers; actual notice of possible invalidity
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    Failed transfers; effect on instrument
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    Contrary provisions in instrument
This part applies notwithstanding a contrary provision in the instrument.


21355    Application of part; duration
(a)    This part shall apply to instruments that become irrevocable on or after September 1, 1993, and before January 1, 2011. For the purposes of this section, an instrument that is otherwise revocable or amendable shall be deemed to be irrevocable if, on or after 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.

(b)    This part shall remain in effect only until January 1, 2014, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2014, deletes or extends that date.


21356    Commencement of action; time limitation
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.