Certificate of Independent Review

What is a Certificate of Independent Review and why is it important?

A certificate of independent review is prepared by a disinterested, objective attorney who has reviewed the facts and circumstances surrounding the proposed gift by a senior or dependent adult to a caregiver or care custodian. (An example is provided below.)



A certificate of independent review is important because, according to California law, testamentary transfers exceeding $3,000 that are made to caregivers who are not family members are presumed to be invalid under the probate code. This means that if a senior (age 65+) or dependent adult wants to give a gift to someone other than a family member, they should hire an independent attorney, in addition to the estate planning attorney, to review their gift to ensure that it is not being made as a result of fraud, duress or undue influence. Under the code, a caregiver is very broadly defined so it is best to seek an independent review in any case where a gift is being made to someone other than a family member.



Please note that a certificate of independent review does not guarantee that the gift won’t be challenged but it does mean that the gift will not be deemed invalid and thereby the burden will be on the challenging party to show that the gift should fail.



"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.



The statutory sections and definitions are provided below for more specific descriptions.

Probate Code § 21350.

(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:

(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.

(6) A care custodian of a dependent adult who is the transferor.



Family members are defined by:

(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).



Dependent Adult and Care Custodians are defined by:



(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.



Probate Code § 21353. 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.



Clare Chesley Sheild4-c.JPG

Clare R. Chesley, Esq.

The Law Office of Clare Chesley

Estate Planning, Probate and Conservatorships



525 S. Myrtle Avenue, Suite 204

Monrovia, California 91016

(626) 303-1806

clare@chesleylaw.com

www.chesleylaw.com







Disclaimer

The Law Office of Clare Chesley provides this review for informational purposes only. The information provided does not constitute legal advice nor does it establish an attorney/client relationship.