Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. LP013505 James A. Steele, Judge.
Scott Gailen for Objector and Appellant.
Mullen & Henzell, Kirk R. Wilson for Petitioner and Respondent.
BOREN, P.J.
Carole J. Stevens appeals from the corrected order directing her to pay $65,721.29, plus interest, as her prorated share of the federal estate tax owed by the Estate of Vernon Earl Simpson (Decedent).
The notice of appeal indicates Stevens also purports to appeal from the original order filed September 28, 2009, which was superseded by this order filed October 6, 2009, correcting and amending that order. The appeal lies only from the corrected order.
Stevens contends the trial court erred and abused its discretion in ordering her to pay estate taxes. She claims Decedent clearly intended that she take the subject real property upon his death, as the surviving joint tenant, without any obligation to pay such taxes and that, alternatively, any obligation she had regarding federal estate tax should have been discharged through the $443,393 residue of the estate.
We note that it appears undisputed in the record and in the arguments of counsel that Decedent did intend that Stevens (and others who received property through the procedure of a joint tenancy with the right of survivorship) not be required to pay taxes under federal estate law. Unfortunately, Decedent’s testamentary actions did not achieve such a consequence.
We affirm the appealed order. The value of the real property, in its entirety, is subject to federal estate tax, because Stevens failed to meet her burden to establish Decedent transferred the property into joint tenancy in exchange for adequate and full consideration. The record also reflects Stevens obtained her joint tenancy interest as a gift from Decedent. The clear terms of Decedent’s trust and his will refute Stevens’s position she is not obligated to pay any estate taxes.
BACKGROUND
On May 12, 2006, Decedent executed a will (Will). In his Will, Decedent “‘pour[ed] over’” his probate estate to respondent Mark Simpson, as the successor trustee of the Vernon E. Simpson Revocable Trust dated June 9, 1998 (Trust), which was executed on that date, “amended on June 18, 1998, and March 18, 2004, ” and “restated in its entirety on May 12, 2006.” Respondent also is the executor of Decedent’s Will.
Stevens, a friend of Decedent, was listed as a beneficiary under the Trust. Paragraph H. of Section 5.3.1, entitled “Specific Distributions, ” provides: “The Trustee shall distribute the condominium commonly known as 5412 Lindley Avenue, #207, Encino, Los Angeles County, California [Lindley Condo]... to Carol Stevens.”
All references to “Section” are to those in the Trust unless otherwise indicated.
On February 12, 2008, Decedent died in Los Angeles County, California. At that time, he held title to certain parcels of California real property in joint tenancy with various other persons. One was the Lindley Condo, which he held with Stevens as joint tenants with rights of survivorship.
Decedent originally acquired this property in his sole name by deed recorded on January 26, 1998. Subsequently, he deeded the property to himself as trustee of his Trust. “By Grant Deed recorded on August 14, 2006, Decedent, as trustee of his [revocable, ] living trust... conveyed title to the Lindley [Condo] to ‘Vernon E. Simpson, an unmarried man, and Carole Stevens, an unmarried woman, as joint tenants.’” On its face, this grant deed recites “‘This is a bonafide gift and the grantor received nothing in return.’”
DISCUSSION
I. Stevens’s Joint Tenancy Interest Is a Gift
Under federal estate law, “[t]he value of the gross estate shall include the value of all property to the extent of the interest therein held as joint tenants with right of survivorship by the decedent and any other person... except such part thereof as may be shown to have originally belonged to such other person and never to have been received or acquired by the latter from the decedent for less than an adequate and full consideration in money or money’s worth.” (26 U.S.C. § 2040(a), italics added.)
Stevens contends the entirety of her ownership interest in the subject property must be excluded from Decedent’s federal estate tax obligation pursuant to the exception set forth in 26 United Stated Code section 2040(a). In this regard, Stevens raises the issue of whether Decedent transferred the subject real property to himself and her as joint tenants in exchange for adequate and full consideration. She argues that Decedent, as the owner of Montclair College Preparatory School, “had the authority to provide [Stevens] with compensation in lieu of her receiving a retirement program” and that he “had given the subject property to [Stevens] in lieu of the retirement she had never received.”
In her declaration, Stevens stated Decedent told her that he had placed her on title as a joint tenant to the Lindley Avenue condominium “as compensation for the retirement program [she] had not received during [her] employment with Montclair Schools, Inc., ” in Van Nuys where she had worked for about 26 years. She also stated that she believed Decedent was the school’s owner based on “everything” he had told her. At trial, Decedent’s ownership interest was not resolved. Tom Collings stated in his declaration that Stevens told him in February 2008 that Decedent gave her the property “as her retirement package.” In his declaration, Dan Tepper stated Decedent told him that he placed Stevens “on title as a ‘joint tenant’ to his property... so that upon his death... [she] would have that property free and clear without her having to pay anything including inheritance tax.” Astrid Finkelstein made a similar statement in her declaration. Connie C. West, Decedent’s sister and “a member of Montclair College Preparatory School Board, ” stated in her declaration that Decedent told her “he placed [Stevens] on title to his property as a ‘joint tenant’ so when he died [she] would receive the entire property free and clear without having to pay any estate tax or other payments... as compensation for her retirement for the many years she had worked for him.”
As a threshold prerequisite, Stevens is required to state and provide record references and authority to show Decedent legally was obligated to provide her with a retirement program and that the value of her joint tenancy interest was the equivalent of what he legally was required to provide as retirement benefits. Stevens has not done so. She therefore has abandoned this issue by failing to make this specific argument supported by applicable authority and record references. “This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record. [Citations.]” (MST Farms v. C.G. 1464 (1988) 204 Cal.App.3d 304, 306; see also Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650 [challenge to presumption of correctness requires pertinent “argument and legal authority on each point raised, ” not just “bare assertion of error”]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [waiver where failure to cite record references].)
Moreover, Stevens’s claim of contribution, adequate and full or otherwise, is refuted by the express and unambiguous recital on the face of the grant deed creating the joint tenancy: “‘This is a bonafide gift and the grantor received nothing in return.’”
II. Payment by Stevens of Prorated Estate Taxes Is Required
“The federal government concerns itself only with having the tax paid; state law governs the distribution of the estate and the ultimate impact of the tax. (Riggs v. Del Drago (1942) 317 U.S. 95, 98.)” (Estate of Dehgani-Fard (2006) 141 Cal.App.4th 797, 801.) In California, “[t]he Legislature has enacted specific rules for determining the source of payment for estate taxes, interest and penalties. (See [Probate Code] § 20100 et seq.) These provisions seek to accomplish “‘the equitable allocation of the burden of the tax among those actually affected by that burden.’” [Citation.] This state has a “‘strong policy’” favoring the statutory apportionment rules. [Citation.] [¶] The general rule, set forth in [Probate Code] sections 20110 and 20111, is that the burden of estate taxes should be borne by each beneficiary to the extent the beneficiary’s share of the property has contributed to the tax. [Citations.] This general rule ‘“was designed to prevent the consumption of the residue by taxes where the testator made specific bequests to others.’” [Citation.]” (Simpson v. White (1997) 57 Cal.App.4th 814, 820, fn. omitted.)
Under California law, “any estate tax shall be equitably prorated among the persons interested in the estate in the manner prescribed in this article.” (Prob. Code, § 20110, subd. (a).) “The proration required by this article shall be made in the proportion that the value of the property received by each person interested in the estate bears to the total value of all property received by all persons interested in the estate, subject to the provisions of this article.” (Prob. Code, § 20111.) “‘Person interested in the estate’ means any person... entitled to receive, or who has received, from a decedent while alive or by reason of the death of the decedent any property or interest therein.” (Prob. Code, § 20100, subd. (b).) “‘Property’ means property included in the gross estate for federal estate tax purposes.” (Prob. Code, § 20100, subd. (d).)
An exception exists “[t]o the extent the decedent in a written inter vivos or testamentary instrument disposing of property specifically directs that the property be applied to the satisfaction of an estate tax or that an estate tax be prorated to the property in the manner provided in the instrument. As used in this paragraph, an ‘instrument disposing of property’ includes an instrument that creates an interest in property or an amendment to an instrument that disposes of property or creates an interest in property.” (Prob. Code, § 20110, subd. (b)(1).)
Stevens contends Decedent’s clear intent that the general proration rule should not apply to her ownership of the Lindley Condo is established through the language of his Trust and Will. We disagree.
Where the language of a written instrument is itself clear, extrinsic evidence is not admissible to vary or contradict its meaning. (See, e.g., In re Kellogg (1940) 41 Cal.App.2d 833, 840 [Absent “fraud, lack of consideration or other infirmity which vitiates the entire document, extrinsic evidence is not admissible to vary the terms of a written deed or other instrument”].)
In this situation, we determine the intent of the maker from the language of the instrument itself, giving the words their ordinary sense unless a technical or other meaning is clearly intended. (See, e.g., Estate of Simoncini (1991) 229 Cal.App.3d 881, 888-889.) Further, any ambiguities are to be resolved in favor of proration. (Estate of Malpas (1992) 7 Cal.App.4th 1901, 1906.) In view of the “‘strong policy in favor of statutory apportionment, ’” the maker’s intent controls only when it is “‘clear and unambiguous.’” (Ibid.; see Estate of Armstrong (1961) 56 Cal.2d 796, 802 [apportionment is “the general rule to which exception is to be made only when there is a clear and unambiguous direction to the contrary”].)
Section 5.2.2, entitled “Settlor’s Death Taxes, ” provides: “Upon the death of the Settlor, the Trustee, in the Trustee’s discretion, may pay out of the Trust estate the federal or state estate, excise and inheritance taxes (‘Death Taxes’), including interest and penalties, attributable to the Trust estate and any property which might be subject to probate administration, arising because of the Settlor’s death.” (Italics added.) The trustee thus has no discretion to “pay out of the Trust estate the federal... estate... taxes” charged to Stevens’s ownership of the Lindley Condo, because such taxes are not attributable to the “Trust estate” or to “property which might be subject to probate administration.”
Section 5.2.3, entitled “Payments from Trust Residue, ” provides: “All such... Death Taxes shall be paid by the Trustee out of the residue of the Trust estate distributed below, and shall not be charged against or collected from any beneficiary of the Trust estate receiving a specific distribution hereunder. However, if the residue of the Trust is insufficient to pay all such... Death Taxes, then the unpaid portion thereof attributable to the probate estate (if any) of the Settlor, to any transfer of property hereunder, or to any property or transfer of property outside the probate estate of a Settlor, shall be charged to and collected from the persons sharing in the taxable estate of the Settlor, in accordance with the provisions of the California Probate Code [section] 20100 et seq.” (Italics added.)
Stevens argues “[t]his paragraph clarified any possible ambiguity as to the required use of the residue of the trust estate with regard to property inside as well as outside the trust estate and demonstrates Decedent’s intent that all death taxes for any property shall first be paid from the residue of the estate.”
One fatal flaw in Stevens’s position is that it does not recognize the significance in Section 5.2.3 of the phrases “such... Death Taxes” and “beneficiary of the Trust estate receiving a specific distribution hereunder.” The first phrase refers to the language in the preceding Section 5.2.2 defining the subject “Death Taxes” only as those attributable to the “Trust estate” or to “property which might be subject to probate administration.” The second phrase identifies the category of persons not subject to proration of estate taxes. Stevens does not fall within either description. The record establishes that she did not receive her interest in the subject property through the Trust, or under the Will. Rather, her joint tenancy interest in the property was created by the grant deed executed by Decedent, and she became the sole owner of the property upon the death of Decedent by operation of law. (See, e.g., Cole v. Cole (1956) 139 Cal.App.2d 691, 695 [“The principal and distinguishing incident of joint tenancy is the right of survivorship”]; Grothe v. Cortlandt Corp., supra, 11 Cal.App.4th at p. 1317 [upon death of one joint tenant, “the entire estate belongs automatically to the surviving joint tenant(s)”]; Estate of Zaring (1949) 93 Cal.App.2d 577, 579-580 [unless joint tenancy “terminated before the death of a joint tenant, the executor of the decedent has no interest in the property”].) Decedent’s intent that the trustee pay estate taxes out of the residue of the trust thus does not extend to Stevens.
“Nothing ‘passes’ from the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by which the joint tenancy was created.” (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.)
The directive under paragraph H. of Section 5.3.1 that the Trustee distribute the Lindley Condo to Stevens is a nullity for the reason that this property was no longer a trust asset, albeit still listed as one.
Stevens also misapprehends the significance of the requirement that “the unpaid portion [of Death Taxes]... attributable... to any property or transfer of property outside the probate estate of a Settlor, shall be charged to and collected from the persons sharing in the taxable estate of the Settlor, in accordance with the provisions of the California Probate Code [section] 20100 et seq.” (Italics added.) Seizing on the phrase “property outside the probate estate, ” Stevens contends Decedent intended that such property, i.e., the Lindley Condo, be exempt from proration of estate taxes. She is mistaken. When viewed in context, as we must (Prob. Code, § 21121), the true significance of “property outside the probate estate” becomes apparent: Decedent intended that anyone to whom he gave or transferred property outside of his probate estate, for example, Stevens, would pay a prorated share of estate taxes pursuant to Probate Code sections 20110 and 20111.
Similarly, Stevens is foreclosed from relying on Article 6 of the Will, entitled “TAXES PAID FROM TRUST, ” which provides: “I direct that all inheritance, estate, or other death taxes that may by reason of my death be attributable to my probate estate or any portion of it, shall be paid by the Trustee... from the Trust estate... and shall not be charged against or collected from any beneficiary of my probate estate.” (Italics added.) This provision is inapplicable, because Stevens is not a “beneficiary of [Decedent’s] probate estate” and her share of the estate taxes is not “attributable to [his] probate estate or any portion of it.”
Stevens claims a conflict of interest exists regarding disposition of the trust residue, because respondent is the trustee of the estate and “undoubtedly the Trustee of the “Simpson Foundation Charitable Trust.” Under Section 5.3.1, “the ultimate determination as to all charitable trust distributions shall be made by the Trustee... [who shall] be entitled to reasonable compensation for his services.” She argues this gives respondent incentive to increase his “reasonable compensation” by distributing the estate assets and residue to the charity rather than first using these funds to pay “Death Taxes.” We reject her claim as irrelevant and sheer speculation.
Stevens’s reliance is misplaced also on Section 5.3.2, entitled “Residue to Foundation, ” which provides: “The Trustee shall distribute the residue of the estate, after the payment of the Death Taxes payable by reason of the Settlor’s death, to the Simpson Foundation for Religion and Education (Foundation).” She argues this section “makes it clearer that the residue of the trust estate shall be distributed to the... Foundation only after the residue has first been used to pay the debts, costs and taxes.” As discussed, Stevens did not obtain her property ownership interest through the Trust. She therefore lacks standing to challenge the trustee’s authority to distribute the $443,392 trust residue to the Foundation.
DISPOSITION
The corrected order is affirmed. Respondent shall recover costs on appeal.
We concur: ASHMANN-GERST, J. CHAVEZ, J.