CEB Recent Developments, 2010

I attended the CEB Recent Developments program in San Francisco on Friday. Here are some highlights:

Hearsay Rule - Evidence Code section 1260 provided an exception to the hearsay rule for an unavailable witness regarding the existence of a will. This permitted admission of a statement by a decedent regarding their will, but there was no mention of whether it applied to trusts. The authorities were mixed on whether it did. As amended, Evidence Code section 1260 explicitly excepts from the hearsay rule statements regarding whether the declarant has or has not made or amended a revocable trust. Arguably, other exceptions to the hearsay rule could be used to bring in such statements, but now you don't have to argue - they are specifically excepted.

Certificate of Independent Review There have been major changes to the presumed invalidity of transfers to "disqualified persons." These changes apply to instruments that become irrevocable on or afer January 1, 2011. One change regards who can prepare a certificate of independent review. An exception to the persumed invalidity of certain transfers (such to a care custodian of a dependant adult) is if an "independent attorney" prepares a certificate of independent review. Under the new law, the attorney who drafted the will or trust containing the transfer can perpare the CIR, but only as to a gift to a care custodian. (see new Probate Code section 21384(c).)

And speaking of care custodians - the definition has been narrowed to allow gifts to persons who assist a depdent adult "without remuneration" and had a personal relationship with the transferor: (1) at least 90 days before providing the services, (2) at least six months before the depedent adult died, and (3) before the depdent adult was admitted to hospice care (if they were admitted to hospice care. (see new Probate Code section 21362.)

Remember, these new rules apply to instruments that become irrevocable after January 1, 2011. That means that they apply to instruments you may have already drafted. It also means that the old rules apply to instruments that became irrevocable through the end of last year.

I could go on all day, but I won't. I will cover some more highlights in my next post.