Violeta and Salvador M~ are children found disabled for SSI purposes. When SSA discovered
in May 2003 that the children's father owned real property worth $15,000, the children's
SSI benefits were suspended, retroactively to June 2001, on account of excess resources.
The father subsequently submitted documents to SSA purporting a transfer of the real
property to a custodian for the children pursuant to the Uniform Transfers to Minors
Act ("UTMA"), "nunc pro tunc" May 1, 2001.
You requested assistance in determining the validity of the alleged property transfer
under the laws of California. Specifically, you asked whether the documents submitted
to SSA were sufficient to validly transfer real property and create custodial property
pursuant to the UTMA. In addition, you asked if such a transfer could be made retroactive
by using the words "nunc pro tunc." Finally, you asked at what age control of the
property would pass to the above-named children, assuming the transfer were valid.
The documents submitted to the SSA did not invoke applicable California law, or the
law of any other state; therefore, the transfer was not valid under the California
Uniform Transfers to Minors Act.
SUMMARY OF EVIDENCE
The documents submitted to the SSA included a "Quitclaim Deed" apparently received
by the Kern County Recorder on December 9, 2003, and two documents titled "Transfer
of Property." Each of these documents purportedly transferred the interest of the
transferor, Lionel M~, in certain real property to a custodian, Blanca G~, pursuant
to the Uniform Transfers to Minors Act. The Quitclaim Deed stated that Ms. G~ was
custodian for Violeta M~ and Salvador M~. Each Transfer of Property stated that Ms.
G~ was custodian for one child or the other. The Quitclaim Deed was dated December
7, 2003, and each Transfer of Property was dated December 6, 2003; however, each of
these documents also contained the words "nunc pro tunc" followed by a May 1, 2001
A. Applicable Law
In 1983, the Uniform Gifts to Minors Act ("UGMA") was revised and restated by the
National Conference of Commissioners on Uniform State Laws as the Uniform Transfers
to Minors Act. In 1984, the California Law Revision Commission recommended adoption
of the UTMA. In response to the Commission's recommendation, the 1984 Legislature
repealed the former UGMA and replaced it with a new Part 9 of Division 4 of the California
Probate Code. See Cal. Prob. C. §§ 3900 et seq. (Stats. 1984, Chap. 243).
The law may be cited as the "California Uniform Transfers to Minors Act" (hereinafter
the "California UTMA"). Cal. Prob. C. § 3900. The California UTMA establishes procedures
whereby a person (the transferor) may transfer property (custodial property) to himself,
an adult or a trust company (the custodian) for the benefit of a minor. See Cal. Prob. C. § 3901 (definitions). The California UTMA applies to any interest in
property transferred under the Act and to the income and proceeds of that property.
Cal. Prob. C. § 3901(f). The California UTMA applies to a transfer (1) if the transfer
document under California Probate Code Section 3900 refers to the California UTMA,
and (2) if, at the time of the transfer, the transferor, the minor or the custodian
is a California resident or the custodial property is located in California. See, generally, B.E. Witkin, Summary
of California Law (9th ed. 1987) § 115.
Here, the documents cited above invoked the UTMA, without specifying the California
UTMA, or the law of any other state (California residents may elect application of
another state's law if there is a nexus to the chosen state at the time of the transfer).
However, the relevant provision of the California UTMA, Probate Code Section 3902,
mandates that the transfer documents required under Probate Code Section 3909 refer
to "this part" [Part 9 of Division 4 of the Probate Code], i.e. the California UTMA. For example, Probate Code Section 3909(a)(5) states that:
Custodial property is created and a transfer is made whenever . . . An interest in
real property is recorded in the name of the transferor, an adult other than the transferor,
or a trust company, followed in substance by the words: 'as custodian for (Name of
Minor) under the California Uniform Transfers to Minors Act.'
Here, the Quitclaim Deed was apparently recorded, as required by California Probate
Code Section 3909(a)(5). It is not apparent whether either of the documents titled
"Transfer of Property" was recorded. The Law Revision Commission's Comment to Section
3909 states that paragraph 5 of subdivision (a) is the exclusive method for transfer
of real property, and that the transfer must be recorded in the name of the custodian in order for the transfer to be an effective
Regardless, the California Law Revision Commission's Comment to Probate Code Section
3902 states that the creation of a custodianship must invoke the law of a particular state because of the form of the transfer required
under subdivision (a) of Section 3909. This interpretation is consistent with the
Comment accompanying the annotated edition of the UTMA, which indicates that the creation
of a custodianship must invoke the law of a particular state. The purpose was to resolve
uncertainties and conflicts-of-laws questions arising under UGMA because of nonuniformity
in various states, which could also arise under the UTMA.
There are no published court decisions interpreting California Probate Code Section
3902. However, the California Law Revision Commission's Comment is persuasive authority
that the transfer attempted here is invalid. Further, California Probate Code Section
3911, respecting the validity and effect of California UTMA transfers, makes no exception
for failure to comply with section 3902.
Note that there appear to be other defects in the documents submitted to SSA which
could also affect the validity of the transfer. Section 3910 of the California Probate
Code provides that:
A transfer may be made only for one minor, and only one person may be the custodian.
All custodial property held under this part by the same custodian for the benefit
of the same minor constitutes a single custodianship.
Here, the Quitclaim Deed purportedly transferred the transferor's interest in real
property in question to the custodian for both of the children. However, there are
no published court decisions respecting California Probate Code Section 3910. Further,
the Comment by the California Law Revision Commission respecting this provision of
the California UTMA, and the Comment accompanying the annotated edition of the UTMA,
merely emphasize the importance of a single custodian (rather than multiple custodians)
for a single minor.
For the reasons stated above, it is our opinion that the attempted transfer is invalid
because of failure to comply with the requirements of California Probate Code Sections
3902(a) and 3909(a)(5).
Because the attempted transfer is invalid, your questions about use of the words "nunc
pro tunc" and age of majority are moot. However, you may wish to consider the following:
California Evidence Code Section 640 provides that a writing is presumed to have been
truly dated. The phrase "nunc pro tunc" (lit., "now for then") is used in reference
to an act to show that it has retroactive legal effect. Courts have inherent power
to enter judgments and orders "nunc pro tunc." See, e.g., In
re Estate of Pillsbury, 175 Cal. 454, 463, 166 P. 11 (1917). The use of the words "nunc pro tunc" has no
legal effect absent an order by a court of competent jurisdiction.
Finally, California Probate Code Section 3920 provides that:
The custodian shall transfer in an appropriate manner the custodial property to the
minor or to the minor's estate upon the earlier of the following:
(a) The minor's attainment of 18 years of age unless the time of transfer of the custodial
property to the minor is delayed under Section 3920.5 to a time after the time the
minor attains the age of 18 years.
(b) The time specified in the transfer pursuant to Section 3909 if the time of transfer
of the custodial property to the minor is delayed under Section 3920.5 to a time after
the time the minor attains the age of 18 years.
(c) The minor's death.
In this case, there was no indication that transfer was to be delayed until after
each minor child's attainment of age 18. If the transfer were valid, the first child
to attain age 18 could claim the entire property.
The attempted transfer is invalid because of failure to comply with the requirements
of California Probate Code Sections 3902(a) and 3909(a)(5). If the transfers were
valid, the first child to attain age 18 could claim the entire property. The use of
the words "nunc pro tunc" has no legal effect absent an order by a court of competent