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California Law (Last Updated: March 4, 2014) |
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Probate Code - PROB |
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Division 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS |
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Part 3.7. Presumption of Fraud or Undue Influence |
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Chapter 2. Operation and Effect of Presumption |
Section 21384.
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(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.