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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 116780
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I would like to increase my understanding of transmutation

Customer Question

I would like to increase my understanding of transmutation agreements. 1)Can a transmutation agreement be used for estate planning? Please explain item 2 and 3 I found on the website. 2) "A statement in a will of the character of property is not admissible
as evidence of a transmutation of the property in a proceeding commenced before the death of the person who made the will." 3)A written joinder or written consent to a nonprobate transfer of community property on death that satisfies Section 852 is a transmutation
and is governed by the law applicable to transmutations and not by Chapter 2 (commencing with Section 5010) of Part 1 of Division 5 of the Probate Code. thank you
Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

1) A transmutation agreement merely converts separate property to community property or community property to separate property and it is a post-nuptial agreement (one entered into after the marital community has been established). It is not a good estate planning tool and if it purports to convert property after death it is treated as a will, not a post-nuptial agreement and can be complicated to sort out in court and leads to many legal challenges by other potential heirs.

2) This means just what I said above, you cannot convert community property to separate property upon death of a person, if you do so, then the document becomes a will and has to be probated as such.

3) This is a statement that the law allows you to make a beneficiary status or "payable on death" bequest of property to the other spouse, stating that upon death the property becomes their separate property (similar to designating ownership as "with right of survivorship" meaning the surviving spouse becomes owner by operation of the law. So this would allow you to have a post nuptial agreement and to title all of your community property assets as with rights of survivorship, essentially transmuting them to separate property of the surviving spouse, but it really does lead to legal challenges.

The best way to avoid all of this is put all of the property into an irrevocable trust, which takes the property out of being community property and you can designate the property at that point any way you wish. It is not much more costly to do the irrevocable trust and it is more secure protection from creditors and also from legal challenges.

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