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California Probate Code Section 21351

Legal Research Home > California Lawyer > Probate Code > California Probate Code Section 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
  transfer, or
  (name of client)
  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.

Last modified: March 8, 2010