A Probate Code Section 3101 petition is usually involves the transfer of a community
property asset to a spouse or Living Trust for the benefit of both spouses when
one spouse lacks capacity. The principal purpose of the petition is to avoid the
need for a conservatorship when one spouse lacks legal capacity to join or consent
for a transaction and the other spouse has capacity or a conservator. This petition
can be used for various situations that involve almost any particular transaction
involving community property.
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The petition is useful in the following circumstances: |
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The spouse with capacity wishes to sell the community property family
residence and invest the proceeds in another home or a life care arrangement
more suitable to the couple's needs. The other spouse lacks the capacity
to join in the transaction and has no conservator. |
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The spouse with capacity wishes to create and fund a Living Trust with
community property without the creation of a conservatorship. The other
spouse lacks the capacity to execute the trust and convey the assets into
it and has no conservator. |
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The spouse with capacity wishes to make a gift of community property to
certain family members or charities. The other spouse lacks the capacity
to join in or consent to the gift and has no conservator. |
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An elderly couple who spent their entire married life in California has
moved to another state where a conservatorship of the person and the estate
has been established for one of the spouses. They still own their community
property California residence. The spouse with capacity wants to dispose
of it and add the proceeds to the conservatorship proceedings in the other
state. |
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One spouse is competent and the other is not and his or her care is incurring
enormous expenses for the couple. The "well" spouse wants to plan for the
likelihood that the other spouse will qualify for public assistance and
wishes to maximize the resources that he or she may retain when qualification
occurs (i.e., Medi-Cal planning). |
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In any of the above scenarios and the assets under consideration also
include the separate property of the incapacitated spouse.
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