Tuesday, February 11, 2014
Southern California estate planning attorneys Bradley Erdosi and Laura Bromlow offer an interesting list of "Essential Things Everyone Should Know About Estate Planning, Probate and Elder Law," for the January 2014 issue of Orange County Lawyer. The full article is available to bar association members, and is also available on Westlaw.
Among the items, is the caution that "An Intended Beneficiary May Never See a Dime," a warning that special efforts -- and certification by an "independent attorney" -- may be needed to protect a bequest or other covered donative transfer to a caregiver from disqualification arising from a statutory presumption. Complying with California's rules will also help to protect the drafting attorney against an allegation of malpractice. They explain:
"California Probate Code section 21380 (Lexis 2011) outlines the presumption of fraud and undue influence regarding donative transfers to certain people, including a “care custodian” of a dependent adult. Therefore, the gift to your dear friend will be presumed to be the result of fraud or undue influence. However, the drafting attorney can overturn this presumption by following certain steps outlined in California Probate Code section 21384 (Lexis 2011). In completing a Certificate of Independent Review, the certifying attorney must be an “independent attorney” (as defined by the statute) and: (1) counsel the client-transferor, including the nature and consequence of a transfer to the potentially disqualified person, and (2) determine that the intended transfer is not the result of fraud or undue influence. If the above requirements are satisfied, the attorney then signs and delivers to the client a 'Certificate of Independent Review,' the language of which is set forth in section 21384."