Law:Division 5. Nonprobate Transfers (California)

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Contents

Part 1. Provisions Relating To Effect Of Death

Chapter 1. General Provisions

Ca Codes (prob:5000-5003) Probate Code Section 5000-5003



5000. (a) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument. (b) Included within subdivision (a) are the following: (1) A written provision that money or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later. (2) A written provision that money due or to become due under the instrument shall cease to be payable in event of the death of the promisee or the promisor before payment or demand. (3) A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later. (c) Nothing in this section limits the rights of creditors under any other law.

5002. Notwithstanding any other provision of this part, a holder of property under an instrument of a type described in Section 5000 is not required to receive, hold, or transfer the property in compliance with a provision for a nonprobate transfer on death executed by a person who has an interest in the property if either (1) the person is not authorized by the terms of the instrument to execute a provision for transfer of the property, or (2) the provision for transfer of the property does not otherwise satisfy the terms of the instrument.

5003. (a) A holder of property under an instrument of a type described in Section 5000 may transfer the property in compliance with a provision for a nonprobate transfer on death that satisfies the terms of the instrument, whether or not the transfer is consistent with the beneficial ownership of the property as between the person who executed the provision for transfer of the property and other persons having an interest in the property or their successors, and whether or not the transfer is consistent with the rights of the person named as beneficiary. (b) Except as provided in this subdivision, no notice or other information shown to have been available to the holder of the property affects the right of the holder to the protection provided by subdivision (a). The protection provided by subdivision (a) does not extend to a transfer made after either of the following events: (1) The holder of the property has been served with a contrary court order. (2) The holder of the property has been served with a written notice of a person claiming an adverse interest in the property. However, this paragraph does not apply to a pension plan to the extent the transfer is a periodic payment pursuant to the plan. (c) The protection provided by this section does not affect the rights of the person who executed the provision for transfer of the property and other persons having an interest in the property or their successors in disputes among themselves concerning the beneficial ownership of the property. (d) The protection provided by this section is not exclusive of any protection provided the holder of the property by any other provision of law. (e) A person shall not serve notice under paragraph (2) of subdivision (b) in bad faith. If the court in an action or proceeding relating to the rights of the parties determines that a person has served notice under paragraph (2) of subdivision (b) in bad faith, the court shall award against the person the cost of the action or proceeding, including a reasonable attorney's fee, and the damages caused by the service.


Chapter 2. Nonprobate Transfers Of Community Property

Article 1. General Provisions

Ca Codes (prob:5010-5015) Probate Code Section 5010-5015



5010. As used in this chapter, "written consent" to a provision for a nonprobate transfer of community property on death includes a written joinder in such a provision.


5011. Notwithstanding any other provision of this part, the rights of the parties in a nonprobate transfer of community property on death are subject to all of the following: (a) The terms of the instrument under which the nonprobate transfer is made. (b) A contrary state statute specifically applicable to the instrument under which the nonprobate transfer is made. (c) A written expression of intent of a party in the provision for transfer of the property or in a written consent to the provision.


5012. A provision of this chapter concerning rights between a married person and the person's spouse in community property is relevant only to controversies between the person and spouse and their successors and does not affect the obligation of a holder of community property under an instrument of a type described in Section 5000 to hold, receive, or transfer the property in compliance with a provision for a nonprobate transfer on death, or the protection provided the holder by Section 5003.


5013. Nothing in this chapter limits the effect of a surviving spouse's waiver of rights in community property under Chapter 1 (commencing with Section 140) of Part 3 of Division 2 or other instrument or agreement that affects a married person's interest in community property.


5014. (a) Except as provided in subdivision (b), this chapter applies to a provision for a nonprobate transfer of community property on the death of a married person, regardless of whether the provision for transfer of the property was executed by the person, or written consent to the provision for transfer of the property was given by the person's spouse, before, on, or after January 1, 1993. (b) Subdivision (c) of Section 5030 does not apply, and the applicable law in effect on the date of death does apply, to revocation of a written consent given by a spouse who died before January 1, 1993.


5015. Nothing in this chapter limits the application of principles of fraud, undue influence, duress, mistake, or other invalidating cause to a written consent to a provision for a nonprobate transfer of community property on death.


Article 2. Consent To Nonprobate Transfer

Ca Codes (prob:5020-5023) Probate Code Section 5020-5023



5020. A provision for a nonprobate transfer of community property on death executed by a married person without the written consent of the person's spouse (1) is not effective as to the nonconsenting spouse's interest in the property and (2) does not affect the nonconsenting spouse's disposition on death of the nonconsenting spouse's interest in the community property by will, intestate succession, or nonprobate transfer.


5021. (a) In a proceeding to set aside a nonprobate transfer of community property on death made pursuant to a provision for transfer of the property executed by a married person without the written consent of the person's spouse, the court shall set aside the transfer as to the nonconsenting spouse's interest in the property, subject to terms and conditions or other remedies that appear equitable under the circumstances of the case, taking into account the rights of all interested persons. (b) Nothing in subdivision (a) affects any additional remedy the nonconsenting spouse may have against the person's estate for a nonprobate transfer of community property on death without the spouse' s written consent.

5022. (a) Except as provided in subdivision (b), a spouse's written consent to a provision for a nonprobate transfer of community property on death is not a transmutation of the consenting spouse's interest in the property. (b) This chapter does not apply to a spouse's written consent to a provision for a nonprobate transfer of community property on death that satisfies Section 852 of the Family Code. Such a consent is a transmutation and is governed by the law applicable to transmutations.


5023. (a) As used in this section "modification" means revocation of a provision for a nonprobate transfer on death in whole or part, designation of a different beneficiary, or election of a different benefit or payment option. As used in this section, "modification" does not mean, and this section does not apply to, the exercise of a power of appointment under a trust. (b) If a married person executes a provision for a nonprobate transfer of community property on death with the written consent of the person's spouse and thereafter executes a modification of the provision for transfer of the property without written consent of the spouse, the modification is effective as to the person's interest in the community property and has the following effect on the spouse's interest in the community property: (1) If the person executes the modification during the spouse's lifetime, the modification revokes the spouse's previous written consent to the provision for transfer of the property. (2) If the person executes the modification after the spouse's death, the modification does not affect the spouse's previous written consent to the provision for transfer of the property, and the spouse's interest in the community property is subject to the nonprobate transfer on death as consented to by the spouse. (3) If a written expression of intent of a party in the provision for transfer of the property or in the written consent to the provision for transfer of the property authorizes the person to execute a modification after the spouse's death, the spouse's interest in the community property is deemed transferred to the married person on the spouse's death, and the modification is effective as to both the person's and the spouse's interests in the community property.


Article 3. Revocation Of Consent

Ca Codes (prob:5030-5032) Probate Code Section 5030-5032



5030. (a) A spouse's written consent to a provision for a nonprobate transfer of community property on death is revocable during the marriage. (b) On termination of the marriage by dissolution or on legal separation, the written consent is revocable and the community property is subject to division under Division 7 (commencing with Section 2500) of the Family Code or other disposition on order within the jurisdiction of the court. (c) On the death of either spouse, the written consent is irrevocable.


5031. (a) If a married person executes a provision for a nonprobate transfer of community property on death with the written consent of the person's spouse, the consenting spouse may revoke the consent by a writing, including a will, that identifies the provision for transfer of the property being revoked, and that is served on the married person before the married person's death. (b) Revocation of a spouse's written consent to a provision for a nonprobate transfer of community property on death does not affect the authority of the holder of the property to transfer the property in compliance with the provision for transfer of the property to the extent provided in Section 5003.


5032. On revocation of a spouse's written consent to a nonprobate transfer of community property on death, the property passes in the same manner as if the consent had not been given.


Part 2. Multiple-party Accounts

Chapter 1. Short Title And Definitions

Article 1. Short Title

Ca Codes (prob:5100) Probate Code Section 5100



5100. This part may be cited as the California Multiple-Party Accounts Law.


Article 2. Definitions

Ca Codes (prob:5120-5152) Probate Code Section 5120-5152



5120. Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.


5122. (a) "Account" means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account, and other like arrangement. (b) "Account" does not include: (1) An account established for deposit of funds of a partnership, joint venture, or other association for business purposes. (2) An account controlled by one or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, or charitable or civic organization. (3) A regular fiduciary or trust account where the relationship is established other than by deposit agreement. (4) An account established for the deposit of funds of the estate of a ward, conservatee, or decedent.


5124. "Agent" means a person who has a present right, subject to request, to payment from an account as an attorney in fact under a power of attorney.

5126. "Beneficiary" means a person named in a Totten trust account as one for whom a party to the account is named as trustee.


5128. "Financial institution" includes: (a) A financial institution as defined in Section 40. (b) An industrial loan company as defined in Section 18003 of the Financial Code.


5130. "Joint account" means an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship.

5132. A "multiple-party account" is any of the following types of account: (a) A joint account. (b) A P.O.D. account. (c) A Totten trust account.

5134. (a) "Net contribution" of a party to an account as of any given time is the sum of all of the following: (1) All deposits thereto made by or for the party, less all withdrawals made by or for the party that have not been paid to or applied to the use of any other party. (2) A pro rata share of any interest or dividends earned, whether or not included in the current balance. (3) Any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question. (b) In the absence of proof otherwise: (1) Only parties who have a present right of withdrawal shall be considered as having a net contribution. (2) The net contribution of each of the parties having a present right of withdrawal is deemed to be an equal amount. (c) It is the intent of the Legislature in enacting this section to provide a definition for the purpose of determining ownership interests in an account as between the parties to the account, and not as between the parties and the financial institution.


5136. (a) "Party" means a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account other than as an agent. (b) A P.O.D. payee is a party, by reason of being a P.O.D. payee, only after the account becomes payable to the payee by reason of surviving all persons named as original payees. (c) A beneficiary of a Totten trust account is a party, by reason of being a beneficiary, only after the account becomes payable to the beneficiary by reason of surviving all persons named as trustees.


5138. "Payment" of sums on deposit includes all of the following: (a) A withdrawal, including payment on check or other directive of a party. (b) A pledge of sums of deposit. (c) A setoff, reduction, or other disposition of all or part of an account pursuant to a pledge.


5139. "P.O.D." means pay on death.


5140. "P.O.D. account" means any of the following: (a) An account payable on request to one person during the person' s lifetime and on the person's death to one or more P.O.D. payees. (b) An account payable on request to one or more persons during their lifetimes and on the death of all of them to one or more P.O.D. payees.


5142. "P.O.D. payee" means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one or more persons.

5144. "Proof of death" includes any of the following: (a) An original or attested or certified copy of a death certificate. (b) A record or report that is prima facie evidence of death under Section 103550 of the Health and Safety Code, Sections 1530 to 1532, inclusive, of the Evidence Code, or another statute of this state.


5146. Except to the extent the terms of the account or deposit agreement expressly provide otherwise, a financial institution "receives" an order or notice under this part when it is received by the particular office or branch office of the financial instutition where the account is carried.


5148. "Request" means a proper request for withdrawal, including a check or order for payment, that complies with all conditions of the account (including special requirements concerning necessary signatures) and regulations of the financial institution; but, if the financial institution conditions withdrawal or payment on advance notice, for purposes of this part the request for withdrawal or payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for withdrawal.


5150. "Sums on deposit" means both of the following: (a) The balance payable on an account, including interest and dividends earned, whether or not included in the current balance. (b) Any life insurance proceeds added to the account by reason of the death of a party.


5152. "Withdrawal" includes payment to a third person pursuant to a check or other directive of a party or an agent.


Chapter 2. General Provisions

Ca Codes (prob:5201-5205) Probate Code Section 5201-5205



5201. (a) The provisions of Chapter 3 (commencing with Section 5301) concerning beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. (b) The provisions of Chapter 4 (commencing with Section 5401) govern the liability of financial institutions who make payments pursuant to that chapter.


5202. Nothing in this part affects the law relating to transfers in fraud of creditors.


5203. (a) Words in substantially the following form in a signature card, passbook, contract, or instrument evidencing an account, or words to the same effect, executed before, on, or after July 1, 1990, create the following accounts: (1) Joint account: "This account or certificate is owned by the named parties. Upon the death of any of them, ownership passes to the survivor(s)." (2) P.O.D. account with single party: "This account or certificate is owned by the named party. Upon the death of that party, ownership passes to the named pay-on-death payee(s)." (3) P.O.D. account with multiple parties: "This account or certificate is owned by the named parties. Upon the death of any of them, ownership passes to the survivor(s). Upon the death of all of them, ownership passes to the named pay-on-death payee(s)." (4) Joint account of husband and wife with right of survivorship: "This account or certificate is owned by the named parties, who are husband and wife, and is presumed to be their community property. Upon the death of either of them, ownership passes to the survivor." (5) Community property account of husband and wife: "This account or certificate is the community property of the named parties who are husband and wife. The ownership during lifetime and after the death of a spouse is determined by the law applicable to community property generally and may be affected by a will." (6) Tenancy in common account: "This account or certificate is owned by the named parties as tenants in common. Upon the death of any party, the ownership interest of that party passes to the named pay-on-death payee(s) of that party or, if none, to the estate of that party." (b) Use of the form language provided in this section is not necessary to create an account that is governed by this part. If the contract of deposit creates substantially the same relationsip between the parties as an account created using the form language provided in this section, this part applies to the same extent as if the form language had been used.


5204. (a) In addition to a power of attorney otherwise authorized by law, a special power of attorney is authorized under this section to apply to one or more accounts at a financial institution or to one or more contracts with a financial institution concerning safe deposit services. For the purposes of this section, "account" includes checking accounts, savings accounts, certificates of deposit, savings certificates, and any other depository relationship with the financial institution. (b) The special power of attorney under this section shall: (1) Be in writing. (2) Be signed by the person or persons giving the power of attorney. (3) Explicitly identify the attorney-in-fact or attorneys-in-fact, the financial institution, and the accounts or contracts subject to the power. (c) The special power of attorney shall contain language in substantially the following form: "WARNING TO PERSON EXECUTING THIS DOCUMENT: This is an important legal document. It creates a power of attorney that provides the person you designate as your attorney-in-fact with the broad powers it sets forth. You have the right to terminate this power of attorney. If there is anything about this form that you do not understand, you should ask a lawyer to explain it to you." (d) In addition to the language required by subdivision (c), special powers of attorney that are or may be durable shall also contain substantially the following language: "These powers of attorney shall continue even if you later become disabled or incapacitated." (e) The power of attorney granted under this section shall endure as between the grantor and grantee of the power until the earliest of the following occurs: (1) Revocation by the grantor of the power. (2) Termination of the account. (3) Death of the grantor of the power. (4) In the case of a nondurable power of attorney, appointment of a guardian or conservator of the estate of the grantor of the power. (f) A financial institution may rely in good faith upon the validity of the power of attorney granted under this section and is not liable to the principal or any other person for doing so if (1) the power of attorney is on file with the financial institution and the transaction is made by the attorney-in-fact named in the power of attorney, (2) the power of attorney appears on its face to be valid, and (3) the financial institution has convincing evidence of the identity of the person signing the power of attorney as principal. (g) For the purposes of subdivision (f), "convincing evidence" requires both of the following: (1) Reasonable reliance on a document that satisfies the requirement of Section 4751. (2) The absence of any information, evidence, or other circumstances that would lead a reasonable person to believe that the person signing the power of attorney as principal is not the individual he or she claims to be. (h) The protection provided by subdivision (f) does not extend to payments made after written notice is received by the financial institution as to any of the events of termination of the power under subdivision (e) if the financial institution has had a reasonable time to act on the notice. No other notice or any other information shown to have been available to the financial institution shall affect its right to the protection provided by this subdivision. (i) The attorney-in-fact acting under the power of attorney granted under this section shall maintain books or records to permit an accounting of the acts of the attorney-in-fact if an accounting is requested by a legal representative of the grantor of the power. (j) The attorney-in-fact acting under a power of attorney granted under this section is liable for any disbursement other than a disbursement to or for the benefit of the grantor of the power, unless the grantor has authorized the disbursement in writing. (k) Nothing in this section limits the use or effect of any other form of power of attorney for transactions with a financial institution. Nothing in this section creates an implication that a financial institution is liable for acting in reliance upon a power of attorney under circumstances where the requirements of subdivision (f) are not satisfied. Nothing in this section affects any immunity that may otherwise exist apart from this section. (l) Nothing in this section prevents the attorney-in-fact from also being designated as a P.O.D. payee. (m) Except as otherwise provided in this section, the Power of Attorney Law, Division 4.5 (commencing with Section 4000) shall not apply to a special power of attorney under this section. Section 4130 and Part 5 (commencing with Section 4900) of Division 4.5 shall apply to a special power of attorney under this section.


5205. This part applies to accounts in existence on July 1, 1990, and accounts thereafter established.


Chapter 3. Ownership Between Parties And Their Creditors And Successors

Ca Codes (prob:5301-5307) Probate Code Section 5301-5307



5301. (a) An account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent. (b) In the case of a P.O.D. account, the P.O.D. payee has no rights to the sums on deposit during the lifetime of any party, unless there is clear and convincing evidence of a different intent. (c) In the case of a Totten trust account, the beneficiary has no rights to the sums on deposit during the lifetime of any party, unless there is clear and convincing evidence of a different intent. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.

5302. Subject to Section 5600: (a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedent's death; and the right of survivorship continues between the surviving parties. (b) If the account is a P.O.D. account: (1) On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a). (2) On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them. (c) If the account is a Totten trust account: (1) On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a). (2) On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them. (d) In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedent's estate. (e) A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.


5303. (a) The provisions of Section 5302 as to rights of survivorship are determined by the form of the account at the death of a party. (b) Once established, the terms of a multiple-party account can be changed only by any of the following methods: (1) Closing the account and reopening it under different terms. (2) Presenting to the financial institution a modification agreement that is signed by all parties with a present right of withdrawal. If the financial institution has a form for this purpose, it may require use of the form. (3) If the provisions of the terms of the account or deposit agreement provide a method of modification of the terms of the account, complying with those provisions. (4) As provided in subdivision (c) of Section 5405. (c) During the lifetime of a party, the terms of the account may be changed as provided in subdivision (b) to eliminate or to add rights of survivorship. Withdrawal of funds from the account by a party with a present right of withdrawal during the lifetime of a party also eliminates rights of survivorship upon the death of that party with respect to the funds withdrawn.


5304. Any transfers resulting from the application of Section 5302 are effective by reason of the account contracts involved and this part and are not to be considered as testamentary. The right under this part of a surviving party to a joint account, or of a beneficiary, or of a P.O.D. payee, to the sums on deposit on the death of a party to a multiple-party account shall not be denied, abridged, or affected because such right has not been created by a writing executed in accordance with the laws of this state prescribing the requirements to effect a valid testamentary disposition of property.


5305. (a) Notwithstanding Sections 5301 to 5303, inclusive, if parties to an account are married to each other, whether or not they are so described in the deposit agreement, their net contribution to the account is presumed to be and remain their community property. (b) Notwithstanding Sections 2581 and 2640 of the Family Code, the presumption established by this section is a presumption affecting the burden of proof and may be rebutted by proof of either of the following: (1) The sums on deposit that are claimed to be separate property can be traced from separate property unless it is proved that the married persons made a written agreement that expressed their clear intent that the sums be their community property. (2) The married persons made a written agreement, separate from the deposit agreement, that expressly provided that the sums on deposit, claimed not to be community property, were not to be community property. (c) Except as provided in Section 5307, a right of survivorship arising from the express terms of the account or under Section 5302, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, may not be changed by will. (d) Except as provided in subdivisions (b) and (c), a multiple-party account created with community property funds does not in any way alter community property rights.


5306. For the purposes of this chapter, if an account is expressly described in the deposit agreement as a "tenancy in common" account, no right of survivorship arises from the terms of the account or under Section 5302 unless the terms of the account or deposit agreement expressly provide for survivorship.


5307. For the purposes of this chapter, except to the extent the terms of the account or deposit agreement expressly provide otherwise, if the parties to an account are married to each other and the account is expressly described in the account agreement as a "community property" account, the ownership of the account during lifetime and after the death of a spouse is governed by the law governing community property generally.


Chapter 4. Protection Of Financial Institution

Ca Codes (prob:5401-5407) Probate Code Section 5401-5407



5401. (a) Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request and according to its terms, to any one or more of the parties or agents. (b) The terms of the account or deposit agreement may require the signatures of more than one of the parties to a multiple-party account during their lifetimes or of more than one of the survivors after the death of any one of them on any check, check endorsement, receipt, notice of withdrawal, request for withdrawal, or withdrawal order. In such case, the financial institution shall pay the sums on deposit only in accordance with such terms, but those terms do not limit the right of the sole survivor or of all of the survivors to receive the sums on deposit. (c) A financial institution is not required to do any of the following: (1) Inquire as to the source of funds received for deposit to a multiple-party account, or inquire as to the proposed application of any sum withdrawn from an account, for purposes of establishing net contributions. (2) Determine any party's net contribution. (3) Limit withdrawals or any other use of an account based on the net contribution of any party, whether or not the financial institution has actual knowledge of each party's contribution. (d) All funds in an account, unless otherwise agreed in writing by the financial institution and the parties to the account, remain subject to liens, security interests, rights of setoff, and charges, notwithstanding the determination or allocation of net contributions with respect to the parties.

5402. Any sums in a joint account may be paid, on request and according to its terms, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded; but payment may not be made to the personal representative or heirs of a deceased party unless proof of death is presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under Section 5302.

5403. Any P.O.D. account may be paid, on request and according to its terms, to any original party to the account. Payment may be made, on request, to the P. O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased original payee if proof of death is presented to the financial institution showing that the deceased original payee was the survivor of all other persons named on the account either as an original payee or as P.O.D. payee.

5404. Any Totten trust account may be paid, on request and according to its terms, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that the deceased trustee was the survivor of all other persons named on the account either as trustee or beneficiary. A Totten trust account may be paid to a beneficiary or beneficiaries or the personal representative or heirs of a beneficiary or beneficiaries if proof of death is presented to the financial institution showing that the beneficiary or beneficiaries survived all persons named as trustees.


5405. (a) Payment made pursuant to Section 5401, 5402, 5403, or 5404 discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, P.O.D. payees, or beneficiaries, or their successors. (b) The protection provided by subdivision (a) does not extend to payments made after the financial institution has been served with a court order restraining payment. No other notice or any other information shown to have been available to a financial institution shall affect its right to the protection provided by subdivision (a). (c) Unless the notice is withdrawn by a subsequent writing, after receipt of a written notice from any party that withdrawals in accordance with the terms of the account, other than a checking account, share draft account, or other similar third-party payment instrument, should not be permitted, except with the signatures of more than one of the parties during their lifetimes or of more than one of the survivors after the death of any one of the parties, the financial institution may only pay the sums on deposit in accordance with the written instructions pending determination of the rights of the parties or their successors. No liability shall attach to the financial institution for complying with the terms of any written notice provided pursuant to this subdivision. (d) The protection provided by this section has no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts and is in addition to, and not exclusive of, any protection provided the financial institution by any other provision of law.


5406. The provisions of this chapter that apply to the payment of a Totten trust account apply to an account in the name of one or more parties as trustee for one or more other persons if the financial institution has no other or further notice in writing that the account is not a Totten trust account as defined in Section 80.


5407. If a financial institution is required or permitted to make payment pursuant to this chapter to a person who is a minor: (a) If the minor is a party to a multiple-party account, payment may be made to the minor or to the minor's order, and payment so made is a valid release and discharge of the financial institution, but this subdivision does not apply if the account is to be paid to the minor because the minor was designated as a P.O. D. payee or as a beneficiary of a Totten trust account. (b) In cases where subdivision (a) does not apply, payment shall be made pursuant to the California Uniform Transfers to Minors Act (Part 9 (commencing with Section 3900) of Division 4), or as provided in Chapter 2 (commencing with Section 3400) of Part 8 of Division 4.


Part 3. Uniform Tod Security Registration Act

Ca Codes (prob:5500-5512) Probate Code Section 5500-5512



5500. (a) This part shall be known as and may be cited as the Uniform TOD Security Registration Act. (b) This part shall be liberally construed and applied to promote its underlying purposes and policy. (c) The underlying purposes and policy of this act are to (1) encourage development of a title form for use by individuals that is effective, without probate and estate administration, for transferring property at death in accordance with directions of a deceased owner of a security as included in the title form in which the security is held and (2) protect issuers offering and implementing the new title form. (d) Unless displaced by the particular provisions of this part, the principles of law and equity supplement its provisions.


5501. For purposes of this part: (a) "Beneficiary form" means a registration of a security that indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner. (b) "Register," including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities. (c) "Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities. (d) "Security" means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account. (e) (1) "Security account" means any of the following: (A) A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death. (B) An investment management or custody account with a trust company or a trust department of a bank with trust powers, including the securities in the account, the cash balance in the account, and cash equivalents, and interest, earnings, or dividends earned or declared on a security in the account, whether or not credited to the account before the owner's death. (C) A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death. (2) For the purposes of this subdivision, "cash equivalent" means an investment that is easily converted into cash, including, treasury bills, treasury notes, money market funds, savings bonds, short-term instruments, and short-term obligations. (f) This section may not be construed to govern cash equivalents in multiple-party accounts that are governed by the California Multiple-Party Accounts Law, Part 2 (commencing with Section 5100).


5502. Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more individuals with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.


5503. A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which this or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.


5504. A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.


5505. Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the name of the registered owner and before the name of a beneficiary.


5506. The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.


5507. On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survive the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.


5508. (a) A registering entity is not required to offer or to accept requests for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this part. (b) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented as provided in this part. (c) A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with Section 5507 and does so in good faith reliance (1) on the registration, (2) on this part, and (3) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or the surviving beneficiary's representatives, or other information available to the registering entity. The protections of this part do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity shall affect its right to protection under this part. (d) The protection provided by this part to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.


5509. (a) Any transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this part and is not testamentary. (b) This part does not limit the rights of a surviving spouse or creditors of security owners against beneficiaries and other transferees under other laws of this state.


5510. (a) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests for (1) registrations in beneficiary form, and (2) implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. (b) The terms and conditions established pursuant to subdivision (a) may provide for (1) proving death, (2) avoiding or resolving any problems concerning fractional shares, (3) designating primary and contingent beneficiaries, and (4) substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for "lineal descendants per stirpes." This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions. (c) The following are illustrations of registrations in beneficiary form that a registering entity may authorize: (1) Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S. Brown, Jr. (2) Multiple owners-sole beneficiary: John S. Brown Mary B. Brown, JT TEN TOD John S. Brown, Jr. (3) Multiple owners-primary and secondary (substituted) beneficiaries: John S. Brown Mary B. Brown, JT TEN TOD John S. Brown, Jr. SUB BENE Peter Q. Brown , or John S. Brown Mary B. Brown JT TEN TOD John S. Brown Jr. LDPS.

5511. Nothing in this part alters the community character of community property or community rights in community property. This part is subject to Chapter 2 (commencing with Section 5010) of Part 1 of Division 5.

5512. This part applies to registrations of securities in beneficiary form made before, on, or after January 1, 1999, by decedents dying on or after January 1, 1999.


Part 4. Nonprobate Transfer To Former Spouse

Ca Codes (prob:5600-5604) Probate Code Section 5600-5604



5600. (a) Except as provided in subdivision (b), a nonprobate transfer to the transferor's former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferor's death, the former spouse is not the transferor's surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section. (b) Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases: (1) The nonprobate transfer is not subject to revocation by the transferor at the time of the transferor's death. (2) There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse. (3) A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferor's death. (c) Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor. (d) Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section. (e) As used in this section, "nonprobate transfer" means a provision, other than a provision of a life insurance policy, of either of the following types: (1) A provision of a type described in Section 5000. (2) A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.


5601. (a) Except as provided in subdivision (b), a joint tenancy between the decedent and the decedent's former spouse, created before or during the marriage, is severed as to the decedent's interest if, at the time of the decedent's death, the former spouse is not the decedent's surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section. (b) Subdivision (a) does not sever a joint tenancy in either of the following cases: (1) The joint tenancy is not subject to severance by the decedent at the time of the decedent's death. (2) There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse. (c) Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section. (d) For purposes of this section, property held in "joint tenancy" includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.


5602. (a) Nothing in this part affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following: (1) The name of the decedent. (2) The date and place of the decedent's death. (3) A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship. (4) Either of the following, as appropriate: (A) The affiant or declarant is the surviving spouse of the decedent. (B) The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5600 or 5601. (b) A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration. (c) An affidavit or declaration made pursuant to subdivision (a) may be recorded.

5603. Nothing in this part is intended to limit the court's authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this part, or to preserve a joint tenancy in favor of the former spouse.


5604. (a) This part is operative on January 1, 2002. (b) Except as provided in subdivision (c), this part applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this part. (c) Sections 5600 and 5601 do not apply, and the applicable law in effect before the operative date of this part applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances: (1) The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this part. (2) The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this part.


Part 5. Gifts In View Of Impending Death

Ca Codes (prob:5700-5705) Probate Code Section 5700-5705



5700. As used in this part, "gift" means a transfer of personal property made voluntarily and without consideration.


5701. Except as provided in this part, a gift in view of impending death is subject to the general law relating to gifts of personal property.

5702. (a) A gift in view of impending death is one which is made in contemplation, fear, or peril of impending death, whether from illness or other cause, and with intent that it shall be revoked if the giver recovers from the illness or escapes from the peril. (b) A reference in a statute to a gift in view of death means a gift in view of impending death.


5703. A gift made during the last illness of the giver, or under circumstances which would naturally impress the giver with an expectation of speedy death, is presumed to be a gift in view of impending death.

5704. (a) A gift in view of impending death is revoked by: (1) The giver's recovery from the illness, or escape from the peril, under the presence of which it was made. (2) The death of the donee before the death of the giver. (b) A gift in view of impending death may be revoked by: (1) The giver at any time. (2) The giver's will if the will expresses an intention to revoke the gift. (c) A gift in view of impending death is not affected by a previous will of the giver. (d) Notwithstanding subdivisions (a) and (b), when the gift has been delivered to the donee, the rights of a purchaser or encumbrancer, acting before the revocation in good faith, for a valuable consideration, and without knowledge of the conditional nature of the gift, are not affected by the revocation.


5705. A gift in view of impending death is subject to Section 9653.


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