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Probate Code 21360 - 21392

Definitions
21360    Application of definitions

Operation and effect of presumption


21360    Application of definitions
The definitions in this chapter govern the construction of this part.


21362    "Care custodian" and "health and social services" defined
(a)    “Care custodian” means a person who provides health or social services to a dependent adult, except that “care custodian” does not include a person who provided services without remuneration if the person had a personal relationship with the dependent adult (1) at least 90 days before providing those services, (2) at least six months before the dependent adult's death, and (3) before the dependant adult was admitted to hospice care, if the dependent adult was admitted to hospice care. As used in this subdivision, “remuneration” does not include the donative transfer at issue under this chapter or the reimbursement of expenses.

(b)    For the purposes of this section, “health and social services” means services provided to a dependent adult because of the person's dependent condition, including, but not limited to, the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking, and assistance with finances.


21364    "Cohabitant" defined
“Cohabitant” has the meaning provided in Section 13700 of the Penal Code.


21366    "Dependent adult" defined
“Dependent adult” means a person who, at the time of executing the instrument at issue under this part, was a person described in either of the following:

(a)    The person was 65 years of age or older and satisfied one or both of the following criteria:

    (1)    The person was unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.

    (2)    Due to one or more deficits in the mental functions listed in paragraphs (1) to (4), inclusive, of subdivision (a) of Section 811, the person had difficulty managing his or her own financial resources or resisting fraud or undue influence.

(b)    The person was 18 years of age or older and satisfied one or both of the following criteria:

    (1)    The person was unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.

    (2)    Due to one or more deficits in the mental functions listed in paragraphs (1) to (4), inclusive, of subdivision (a) of Section 811, the person had substantial difficulty managing his or her own financial resources or resisting fraud or undue influence.


21368    "Domestic partner" defined
“Domestic partner” has the meaning provided in Section 297 of the Family Code.


21370    "Independent attorney" defined
“Independent attorney” means an attorney who has no legal, business, financial, professional, or personal relationship with the beneficiary of a donative transfer at issue under this part, and who would not be appointed as a fiduciary or receive any pecuniary benefit as a result of the operation of the instrument containing the donative transfer at issue under this part.


21374    "Related by blood or affinity" and "spouse or domestic partner" defined
(a)    A person who is “related by blood or affinity” to a specified person means any of the following persons:

    (1)    A spouse or domestic partner of the specified person.

    (2)    A relative within a specified degree of kinship to the specified person or within a specified degree of kinship to the spouse or domestic partner of the specified person.

    (3)    The spouse or domestic partner of a person described in paragraph (2).

(b)    For the purposes of this section, “spouse or domestic partner” includes a predeceased spouse or predeceased domestic partner.

(c)    In determining a relationship under this section, Sections 6406 and 6407, and Chapter 2 (commencing with Section 6450) of Part 2 of Division 6, are applicable.


21380    Presumption of fraud or undue influence for certain enumerated transfers; burden of proof; costs and attorney's fees
(a)    A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:

    (1)    The person who drafted the instrument.

    (2)    A person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed.

    (3)    A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.

    (4)    A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.

    (5)    A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.

    (6)    A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.

(b)    The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.

(c)    Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (4), (5), or (6) of subdivision (a), the presumption created by this section is conclusive.

(d)    If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney's fees.


21382    Exclusion from presumption for certain documents or transfers
Section 21380 does not apply to any of the following instruments or transfers:

(a)    A donative transfer to a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.

(b)    An instrument that is drafted or transcribed by a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.

(c)    An instrument that is approved pursuant to an order under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4, after full disclosure of the relationships of the persons involved.

(d)    A donative transfer to 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, [FN1] or a trust holding the transferred property for the entity.

(e)    A donative transfer of property valued at five thousand dollars ($5,000) or less, if the total value of the transferor's estate equals or exceeds the amount stated in Section 13100.

(f)    An instrument executed outside of California by a transferor who was not a resident of California when the instrument was executed.


21384    Gifts excluded from presumption; certificate of independent review
(a)    A gift is not subject to Section 21380 if the instrument is reviewed by an independent attorney who counsels the transferor, out of the presence of any heir or proposed beneficiary, about the nature and consequences of the intended transfer, including the effect of the intended transfer on the transferor's heirs and on any beneficiary of a prior donative instrument, attempts to determine if the intended transfer is the result of fraud or undue influence, and signs and delivers to the transferor an original certificate in substantially the following form:

“CERTIFICATE OF INDEPENDENT REVIEW

I, ___________________________________________________________________ , have reviewed
(attorney's name)

_____________________________________________________ and have counseled the transferor,
(name of instrument)

_________________________________________________ , on the nature and consequences of any
(name of transferor)

transfers of property to ________________________________________________________________
                                             (name of person described in Section 21380 of the Probate Code)

that would be made by the instrument.

I am an “independent attorney” as defined in Section 21370 of the Probate Code and am in a position to advise the transferor independently, impartially, and confidentially as to the consequences of the transfer.

On the basis of this counsel, I conclude that the transfers to

_________________________________________________________________________ that would
(name of person described in Section 21380 of the Probate Code)

be made by the instrument are not the product of fraud or undue influence.

_______________________________________     _________________________________________”
(Name of Attorney)                                     (Date)

(b)    An attorney whose written engagement, signed by the transferor, is expressly limited solely to compliance with the requirements of this section, shall not be considered to otherwise represent the transferor as a client.

(c)    An attorney who drafts an instrument can review and certify the same instrument pursuant to this section, but only as to a gift to a care custodian. In all other circumstances, an attorney who drafts an instrument may not review and certify the instrument.

(d)    If the certificate is prepared by an attorney other than the attorney who drafted the instrument that is under review, a copy of the signed certification shall be provided to the drafting attorney.


21386    Presumption for gifts that failed under this part
If a gift fails under this part, the instrument making the gift shall operate as if the beneficiary had predeceased the transferor without spouse, domestic partner, or issue.


21388    Personal liability for certain property transfers
(a)    A person is not liable for transferring property pursuant to an instrument that is subject to the presumption created under this part, unless the person is served with notice, prior to transferring the property, that the instrument has been contested under this part.

(b)    A person who is served with notice that an instrument has been contested under this part is not liable for failing to transfer property pursuant to the instrument, unless the person is served with notice that the validity of the transfer has been conclusively determined by a court.


21390    Contrary provision in instrument; application of part
This part applies notwithstanding a contrary provision in an instrument.


21392    Application of part; application of common law
(a)    This part shall apply to instruments that become irrevocable on or after 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 January 1, 2011, the transferor by reason of incapacity was unable to change the disposition of the transferor's property and did not regain capacity before the date of the transferor's death.

(b)    It is the intent of the Legislature that this part supplement the common law on undue influence, without superseding or interfering in the operation of that law. Nothing in this part precludes an action to contest a donative transfer under the common law or under any other applicable law. This subdivision is declarative of existing law.