Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. BP111253, Reva Goetz, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Offices of Thomas M. McIntosh and Thomas M. McIntosh for Defendant and Appellant.
Loeb & Loeb and Neal B. Jannol for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
Badri Madani (Madani), as administrator of the estate of Zahra Khiaban (Zahra), prosecutes this appeal to challenge two orders of the probate court. The first order found that Zahra failed to effectively sever the joint tenancy form of title by which she and her husband, respondent Davoud Khiaban (Davoud), held six parcels of California real property because the severance document was not recorded as required by statute. Consequently, Davoud automatically became sole owner of the properties through right of survivorship upon Zahra’s death. The second order found that Davoud was the owner of specified personal property because he was the surviving co-trustee of a revocable living trust that he and Zahra had created and funded during marriage and that had not been revoked prior to Zahra’s death. We affirm both orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Marriage
Davoud and Zahra Khiaban married in 1983.
During their marriage, the Khiabans acquired six parcels of California real estate: three apartment buildings, an avocado grove, an office building, and a 50 percent interest in a land subdivision. In each instance, they took title as “husband and wife, as joint tenants.” In addition to the real property, they acquired tangible and intangible personal property.
Davoud and Zahra also acquired two pieces of Nevada real estate, a vacation home and a rental house. Those properties are not subjects of the order under review.
On April 19, 2002, the Khiabans executed a revocable living trust, the Khiaban Family Trust (the Trust). Each was a settlor and co-trustee of the Trust. The Trust provided that after the death of the first spouse, the surviving spouse became the sole trustee, with the power to amend or revoke the Trust. The res of the trust consisted of the Khiabans’ personal property (tangible and intangible) but did not include their real estate holdings.
To fund the trust, Davoud and Zahra executed two assignments on April 19, 2002. The first assignment recites: “FOR VALUE RECEIVED, DAVOUD KHIABAN and ZAHRA KHIABAN, hereby sell, assign and transfer unto DAVOUD KHIABAN and ZAHRA KHIABAN, Co-Trustees of the KHIABAN FAMILY TRUST dated 4-19, 2002, all of the issued and outstanding shares of the common capital stock of JONES/KHIABAN ENGINEERS, INC. standing in their names on the books of said corporation, and do hereby irrevocably constitute and appoint the Secretary of the Corporation, to transfer the said stock on the books of the within-named company, with full power of substitution in the premises.” The second assignment recites: “DAVOUD KHIABAN and ZAHRA KHIABAN hereby assign all their right, title and interest in and to all of their personal property, including, but not limited to, all furniture and furnishings, fine arts, antiques and jewelry, to DAVOUD KHIABAN and ZAHRA KHIABAN as Trustees of THE KHIABAN FAMILY TRUST, EFFECTIVE 4-19, 2002.”
On the same day that the Trust was created, Davoud and Zahra each executed a formal will, bequeathing all of his or her property to the Trust. Article 2 of each will states: “It is my intention to dispose of all real and personal property which I have a right to dispose of by Will, including all my separate property, my half of community property, and the whole of any quasi-community property acquired by me.” (Italics added.) Article 3 of each will reads, in pertinent part: “I give and devise my entire estate, both real and personal and wherever situated, to the Trustee of the KHIABAN FAMILY TRUST established of even date herewith, to be added to the corpus of the Trust Estate and held, administered, and distributed in accordance with the provisions of said Trust and any amendments to it.”
In December 2006, Davoud initiated proceedings to dissolve their marriage. Both parties were represented by separate counsel throughout the proceedings.
The summons included the Standard Family Law Restraining Orders. Two of those orders are potentially relevant to this case. The first restrains both spouses from “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.” The second restrains both spouses from “creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.” (Italics added.)
2. Zahra’s Illness and Death
In 2006, Zahra was diagnosed with cancer. At some point, her condition worsened and she was hospitalized. Very shortly before her death and while in the hospital, Zahra, in her handwriting, executed a document reading: “I Zahra Khiaban, after me, leave everything I own or have any interest in to Firouzeh Tehranchi [my sister], appoint Badri Madani [my aunt] Administrator of my estate. I want nothing to go to Davoud Khiaban [my husband], Nima Khiaban [my son] and Nahal Aghahee [my daughter] and sever all joint tenancy. 5-22-2008. Zahra Khiaban.” (Italics added.) Three witnesses signed the document and a notary attested that Zahra had written the document. Zahra executed the document at approximately 11 a.m. on May 22, 2008; she died 14 hours later at 1:10 a.m. on May 23.
At 9:30 a.m. on May 23 (approximately eight hours after Zahra’s death), Maziar Mafi (Zahra’s personal attorney who had witnessed execution of the handwritten instrument) sent a FAX to Davoud’s divorce attorney informing counsel of Zahra’s death. In addition, the FAX read: “Please, be notified and respectfully notify your client, Mr. Davoud Khiaban, that she [Zahra] has left a Will and Severed all joint tenancies. As such it is requested that no action be taken regarding her properties or any property that she may have had and any interest in.”
At some point after Zahra’s death, the marital dissolution proceeding was dismissed. No judgment of dissolution had been entered.
3. Probate Court Proceedings
On June 20, 2008, Davoud filed a petition to probate Zahra’s April 2002 will. As indicated above, the will, executed concurrently with creation of the Trust, had a pour-over provision transferring all of Zahra’s property over which she had testamentary power to the Trust. The petition averred that Zahra’s estate included no real property but consisted of personal property valued at $320,000.
On June 23, 2008, Madani, as administrator of Zahra’s estate, filed a petition to probate Zahra’s May 22 handwritten instrument. The petition averred that Zahra’s estate was valued at approximately $4.7 million, including real property with a fair market value of approximately $4.1 million. The petition’s implicit premise was that Zahra had testamentary power over a one-half interest in the real property she and Davoud had acquired.
Each party objected to the other’s petition for probate. The trial court did not admit either document to probate.
4. Petition to Determine Title to the California Real Estate
In June and July of 2008, Davoud recorded an Affidavit--Death of Joint Tenant in regard to each of the six parcels of California realty he and Zahra had owned.
In October 2008, Davoud filed a petition for an order determining title to those six parcels. (Prob. Code, § 850, subd. (a)(2)(C).) He urged that as the surviving joint tenant, he was now the sole owner of the realty. He claimed that Zahra’s May 22 handwritten document was ineffective to sever the joint tenancies before her death. Madani opposed Davoud’s petition, primarily arguing that Zahra’s deathbed writing had effectively severed the joint tenancies. In the alternative, Madani claimed that the realty was, in fact, community property so that Zahra could dispose of one-half of it by will.
The trial court granted Davoud’s petition. Its minute order states, in pertinent part: “[T]he will of the decedent [Zahra] dated 5/22/08 was not effective to sever any joint tenancy in which the decedent had an interest.” The court therefore ruled that Davoud, “as a single man, is the rightful owner of the [six] parcels of real property.”
5. Petition to Determine Ownership of Personal Property in the Trust
In March 2009, Davoud filed a petition for an order to establish title to the Trust property. (Prob. Code, § 850, subd. (a)(2)(D).) Davoud contended that the stock and personal property he and Zahra had transferred to the Trust through the two assignments executed on April 19, 2002 were Trust property and, that as the sole trustee, he was now the rightful owner of all of it. According to Davoud, the May 22, 2008 document, even if valid, did not control disposition of that property because there had been no revocation of the Trust prior to Zahra’s death. Davoud’s petition specified the personal property that he alleged had been transferred to the Trust.
Madani opposed the petition, urging that the May 22 document revoked both the Trust and the April 2002 will so that Zahra could make a valid testamentary disposition of her interest in the personal property.
The trial court found that Davoud, as trustee of the Trust, was the rightful owner of all the tangible and intangible property transferred to the Trust.
6. Madani Appeals
Madani has appealed from the trial court’s orders granting Davoud’s two petitions. Apparently, proceedings are pending in the trial court regarding probate of Zahra’s will.
In the course of litigating the issue of title to the real property, Davoud reiterated his position that the May 22, 2008 document executed by Zahra was “not valid” and that the April 19, 2002 will should be admitted to probate.
DISCUSSSION
A. THE REAL PROPERTY
1. Zahra’s May 22 Declaration of Severance Did Not Sever the Joint Tenancies
A joint tenancy estate consists of four unities: interest, time, title and possession. “The requirement of four unities reflects the basic concept that there is but one estate, which is taken jointly.” (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155.) “‘A distinctive feature of joint tenancy, as opposed to other interests in land, is the right of survivorship. This means that when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s).’” (Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1385.) A joint tenancy is designed primarily to allow two (or more) persons who jointly own property to avoid probate on the death of one of the joint tenants. (Estate of England (1991) 233 Cal.App.3d 1, 4.)
“The severance of a joint tenancy transforms it into a tenancy in common by extinguishing the right of survivorship.” (Estate of Mitchell, supra, 76 Cal.App.4th at p. 1385.) “In a tenancy in common, each tenant has a separate but undivided interest in the property which can be conveyed by deed or will.” (Estate of England, supra, 233 Cal.App.3d at p. 4, fn. 2.) In contrast, an interest in a joint tenancy cannot be devised in a will. (Id. at p. 4.) This is because “[n]othing ‘passes’ from the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by which the joint tenancy was created. [Citations.]” (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.)
The common law rule was that a joint tenant could sever a joint tenancy without giving any notice to the other joint tenant(s). (Estate of Propst (1990) 50 Cal.3d 448, 456.) Civil Code section 683.2 (section 683.2) modifies that rule by setting forth precise procedures that must be followed if an individual intends to unilaterally sever a joint tenancy. Insofar as is relevant to this case, a document purporting to unilaterally sever a joint tenancy either (1) must be recorded prior to the severing joint tenant’s death (§ 683.2, subd. (c)(1)) or (2) must be recorded within seven days after the severing joint tenant’s death if it was notarized within three days before the individual’s death (§ 683.2, subd. (c)(2)).
Section 683.2 provides, in relevant part:
Because it is uncontested that the May 22 document by which Zahra sought to sever the joint tenancies was never recorded, it is clear that there was no compliance with the section 683.2’s requirement of recordation. The document therefore did not sever the joint tenancies. Our conclusion is supported by two cases involving fact patterns similar to this matter.
The first is Estate of England, supra, 233 Cal.App.3d 1. There, the husband and wife held real property in joint tenancy. The husband died, having executed a holographic will 12 days earlier in which he purported to “terminate my joint tenancy interest” in the property and devise it to his son. (Id. at p. 3.) The issue was whether the will was effective to sever the joint tenancy and thereby prevent the wife from taking the property through the right of survivorship. The appellate court concluded that the “will could not be effective to sever the joint tenancy in the property because it was neither notarized nor recorded as required by subdivision (c) [of section 683.2].” (Id. at p. 5.) The wife therefore owned the entire property.
The second case is Dorn v. Solomon (1997) 57 Cal.App.4th 650. There, a married couple took title to their family home as “‘husband and wife, as joint tenants.’” (Id. at p. 651.) The wife subsequently moved out. While in the hospital dying from cancer, the wife executed a deed conveying the home to an irrevocable trust. The wife’s purpose in so doing was to enable her to transfer her interest in the home to her daughter from a prior marriage. The wife died the day after executing the deed. Over a month later, the deed was recorded. (Id. at p. 652.) Section 683.2 permits unilateral severance of a joint tenancy if a deed conveying legal title of the joint tenant’s interest to a third party is recorded within seven days of the death of the severing joint tenant. (§ 683.2, subd. (a)(1) and (c)(2).) But because the wife’s deed was not recorded within that time period, “it was invalid under [section 683.2]” and thus did not sever the joint tenancy. (Id. at p. 653.) Consequently, title to the home passed to the husband by right of survivorship.
Given these two cases’ unqualified application of the statutory requirement of (timely) recordation to render a severance effective, we conclude that Zahra’s May 22 non-recorded declaration was insufficient to sever the joint tenancies. Consequently, Davoud, upon Zahra’s death, succeeded to the six parcels of real property by right of survivorship.
Davoud also argues that the May 22 document violated the standard family law restraining orders. (See fn. 2, ante.) In response, Madani notes that Estate of Mitchell, supra, 76 Cal.App.4th 1378 held that “when one spouse severs a joint tenancy with the other spouse by executing and recording a declaration of severance, there is neither a ‘transfer’ nor a ‘disposition’ of any ‘property.’ Such a severance therefore does not violate an injunctive order entered” pursuant to statute in a dissolution proceeding. (Id. at p. 1395.) However, Madani overlooks two salient facts. The first is that the restraining order in Estate of Mitchell was much more limited that those imposed in this case. There, only the first of the two orders imposed in this case (see fn. 2, ante) was in effect. (Id. at p. 1387.) Further, after the opinion in Estate of Mitchell, the Legislature enacted Family Code section 2040, subdivision (b) to provide: “Nothing in this section [requiring the placement of temporary restraining orders in a summons issued in a marital dissolution proceeding] restrains any of the following: [¶]... [¶] (3) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the changes takes effect.” (Italics added.) Here, of course, the notice of change was not filed and served on Davoud in a timely manner because the failure to record meant that the severance never took effect.
To avoid that conclusion, Madani relies upon the fact that approximately eight hours after Zahra’s death, Zahra’s attorney sent a FAX to Davoud’s attorney informing him that Zahra had died, leaving a will that had severed the joint tenancies. Madani argues that because (1) the purpose of recordation is “to give the public Constructive Notice of certain facts and events involving certain transactions” and (2) subdivision (c)(2) of section 683.2 permits recordation within seven days of death, the giving of actual notice to Davoud’s attorney less than a day after Zahra’s death “is sufficient to satisfy the statutory requirement of recording.” (Italics in originals.) Building upon the premise that an effective severance occurred, Madani argues that the properties were then held as tenancies in common so that Zahra could make a testamentary disposition of her one-half interest in them. We are not persuaded.
The Law Revision Commission Comment to section 683.2 explains, in relevant part: “[I]n the case of a recorded real property joint tenancy, severance by written declaration or by other instrument must be recorded as required by subdivision (c) to be effective to terminate the right of survivorship of the other joint tenants.... [¶] If the instrument effecting the severance is not recorded as required by subdivision (c), that subdivision provides that the severance of the joint tenancy is not effective to terminate the survivorship right of the nonsevering joint tenant.... [¶] The practical consequences for the parties of failure to record the conveyance of a joint tenant as required by subdivision (c) depends upon the order of their death.... If the severing joint tenant is first to die, the nonsevering joint tenant takes the interest of the transferee because the non-severing joint tenant’s right of survivorship continues, the severing instrument not having been recorded as required.” (18 Cal.L.Rev.Comm. Reports (1985) 249, 359, italics added.)
Given the clear language of section 683.2 and its legislative purpose, we must reject Madani’s argument. Essentially, she asks us to re-write the statute to provide that recordation is required unless actual notice is given to the other joint tenant(s). We decline to do so. In interpreting a statute, we “‘“examin[e] the statute’s words, giving them a plain and commonsense meaning. [Citation.]”’ [Citations.] If possible, ‘“‘significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.’ [Citation.]”’” (People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 422.) “Where the language of the statute is unambiguous, the Legislature is presumed to have meant what it said and the plain meaning of the statute governs.” (Tucker Land Co. v. State of California (2001) 94 Cal.App.4th 1191, 1198.)
In this case, the language of the statute is clear and unambiguous: a unilateral declaration of severance of a joint tenancy does not terminate the right of survivorship of the other joint tenant(s) unless the declaration is recorded. The statute contains no exception for non-recordation if actual notice is given to the other joint tenant(s). Here, the declaration (the May 22 document) was never recorded. It therefore did not terminate Davoud’s right of survivorship, notwithstanding the notice given to Davoud’s attorney.
To a certain extent, Madani argues that to apply section 683.2’s requirement of recordation to this case leads to an unfair result: Davoud, who had actual notice of Zahra’s action, ends up the sole owner of the properties even though it was Zahra’s intent to disinherit him and leave her property to her sister. To paraphrase our recent decision in Brandon S. v. State of California ex rel. Foster Family Home etc. Ins. Fund (2009) 174 Cal.App.4th 815: “The argument, however, is more appropriately directed to the Legislature. Although legitimate policy questions are raised by [Madani’s argument], we decline to rewrite the statutory language [requiring recordation] and depart from governing principles of statutory construction to reach the result [Madani] seeks [by importing an exception for non-recordation if actual notice to the other joint tenant is given]. That is a task for the Legislature.” (Id. at p. 830; see also Masry v. Masry (2008) 166 Cal.App.4th 738, 743 [It is the Legislature’s role to amend a statute if its implementation violates an overriding public policy].)
2. Madani Did Not Establish that the Real Property Was Community Property
Madani next contends: “The community property nature of the real properties as agreed by both parties freed each spouse to dispose his or her interest by will, whether or not severance of the joint tenancy has been recorded.” (Capitalization and boldface omitted.) Madani relies upon the principle that “[i]f the joint tenancy is held by husband and wife, the property may actually be community property notwithstanding the joint tenancy form of title. [Citations.] If it is established that the apparent joint tenancy is actually community property, each spouse may dispose of his or her interest in the property by will, whether or not a severance of the apparent joint tenancy has been recorded as required by subdivision (c) [of section 683.2 ]. [Citations.]” (18 Cal.L.Rev.Comm. Reports, supra, 249, 359, italics added.) We find that Madani failed to establish the predicate to application of that principle: the community property nature of the realty.
In California, a married couple can hold real property as community property or joint tenancy (Fam. Code, § 750) but not as both community property and joint tenancy at the same time because the two forms of ownership are mutually exclusive: a spouse’s interest in a joint tenancy is considered separate property. (Estate of Mitchell, supra, 76 Cal.App.4th at p. 1385.)
Family Code section 2581 provides, in relevant part, that “[f]or the purpose of division of property on dissolution of marriage[, ]... property acquired by the parties during marriage in joint form, including property held in... joint tenancy... is presumed to be community property.” (Italics added.) However, when, as here, “one spouse dies during a dissolution proceeding but before there is a judgment of dissolution, this community property presumption does not apply.” (Estate of Mitchell, supra, 76 Cal.App.4th at p. 1386.) Instead, upon the death of one spouse, there is a presumption “‘that the property is as described in the deed and the burden is on the party who seeks to rebut the presumption.’” (Estate of Blair (1988) 199 Cal.App.3d 161, 167, construing former Civ. Code, § 4800.1, the predecessor to Fam. Code, § 2581; see also Dorn v. Solomon, supra, 57 Cal.App.4th at p. 652 and Estate of Petersen (1994) 28 Cal.App.4th 1742, 1747.)
“If, however, a spouse dies after there has been a judgment of dissolution but before there is a final judgment dividing the community property, the community property presumption does apply. Property held in joint tenancy will be divided equally between the surviving spouse and the estate of the deceased spouse. The surviving spouse will have not right of survivorship. [Citations.] [¶] This presents what has been called ‘the Hilke/Allen/Blair’ conundrum....’ [Citation.] Ordinarily, holding community property in joint tenancy form is mutually advantageous, during marriage as well as after dissolution. Once a dissolution proceeding is pending, however, ‘it is illogical that [the] parties... would envision or desire the operation of survivorship. An untimely death results in a windfall to the surviving spouse, a result neither party presumably intends or anticipates.’ [Citation.] Continuing to hold property in joint tenancy in effect forces each spouse to make the ‘macabre gamble’ that the other will die during the dissolution. [Citation.] [¶] In 1994, the Legislature amended Family Code section 2040 so as to add a requirement that the summons must also contain a form warning about ‘[this] conundrum’. [Citation.]” (Estate of Mitchell, supra, 76 Cal.App.4th at p. 1386.)
In light of the above rules of law, it was Madani’s burden, as administrator of Zahra’s estate, to rebut the presumption that the six parcels were held in joint tenancy. If Madani met that burden and established that the property was community property, Zahra had testamentary disposition over one-half of it. (Prob. Code, § 100, subd. (a).) If not, the entire interest in the realty passed automatically to Davoud by right of survivorship. (See In re Marriage of Hilke (1992) 4 Cal.4th 215, 220 [absent evidence of a transmutation, joint tenancy form of title found in deed controls so that surviving spouse succeeds to the property by right of survivorship].)
The statute provides: “Upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent.”
As indicated earlier, Madani’s opposition to Davoud’s petition had argued that even though the deeds described the realty as joint tenancy, Davoud and Zahra had, in fact, subsequently changed the character of the properties to community property. To that end, Madani offered documents from the dissolution proceeding in an attempt to overcome the presumption that the parties held the realty in joint tenancy.
Transmutation of marital property is governed by Family Code section 852. It provides, in relevant part: “A transmutation of real... property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” (Fam. Code, § 852, subd. (a).) “A transmutation is an interspousal transaction or agreement that works a change in the character of the property.” (In re Marriage of Campbell (1999) 74 Cal.App.4th 1058, 1062.)
The statute overruled decisional law permitting oral transmutations of martial property (Estate of Blair, supra, 199 Cal.App.3d at p. 167) or permitting a transmutation to be inferred from the conduct or oral declarations of the parties (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1107-1108).
In granting Davoud’s petition, the trial court implicitly rejected Madani’s argument that the evidence established that Davoud and Zahra had “transmuted” the joint tenancy (separate property) into community property. In reviewing that decision “we interpret the written instruments [offered to support Madani’s claim] independently, without resort to extrinsic evidence. [Citations.] Under the circumstances, we are not bound by the interpretation given to the written instruments by the trial court. [Citation.] We exercise our independent judgment [to decide whether a transmutation occurred].” (In re Marriage of Starkman (2005) 129 Cal.App.4th 659, 664.)
Madani offered multiple documents from the abated dissolution proceeding to support the claim that the six parcels were actually community property. Only three of the documents are signed by Davoud, the party “adversely affected” by the transmutation. (Fam. Code, § 852, subd. (a).) The first is an August 2007 “Stipulation Regarding the Community Assets” signed by Davoud and Zahra which values five of the six parcels. The second is a March 13, 2007 order filed in the superior court in which Davoud and Zahra agreed, among other things, that “during the pendency of this [dissolution] action” Zahra would have “primary management and control of the businesses consisting” of four of the six parcels (the three apartment houses and the avocado grove). Davoud and Zahra and their respective attorneys signed the order. The third is a June 25, 2007 declaration from Davoud in which he refers to the March 13, 2007 order as a stipulation giving Zahra “control and management of the community property assets and accounts.” In addition, Madani produced correspondence from Davoud’s attorney to counsel for Zahra in which all of the realty is referred to as community property. Lastly, Madani included a June 2007 “Schedule of Assets and Debts, ” signed under penalty of perjury by Zahra (but not Davoud), which lists the realty as community property.
The parties’ briefs proceed upon the assumption that the stipulation places a value on each of the six parcels of realty. That assumption is incorrect. Although the type-written stipulation originally included the 50 percent interest in the land subdivision (the Nurmi Street property) with a valuation of $365,000, that notation was subsequently obliterated.
Estate of Blair, supra, 199 Cal.App.3d 161 (Blair) is instructive in determining whether Madani met her burden to rebut the presumption that the properties were held in joint tenancy. In Blair, husband and wife bought a home, taking title as joint tenants. Subsequently, they separated. The wife petitioned for separation, listing the home as “community property.” (Id. at p. 165.) The husband’s response sought confirmation of assets as separate or community but made no claim about the home. However, in a deposition, the husband testified that he “believed” the home was community property. (Ibid.) During separation, the wife executed a new will leaving her entire estate to her sister. The wife died before a trial could be conducted in the dissolution proceeding.
In a subsequent probate proceeding, the wife’s sister claimed a one-half interest in the realty. The trial court, relying upon the statutory predecessor to Family Code section 852, found that the parties had transmuted the property “‘from joint tenancy into community property as a result of an agreement or understanding between [them].’” (Blair, supra, 199 Cal.App.3d at p. 167.) It found that the agreement or understanding was “evidenced” by the wife’s declaration in her petition for separation that the home was community property and by the husband’s deposition testimony that he believed the home to be community property. (Id. at p. 168.)
The husband had sold the home so the wife’s sister sought one-half of the sale proceeds.
On appeal, the reviewing court reversed the trial court’s finding. It explained: “We believe it is significant... that the declarations of the respective parties which the court relied upon were made in their dissolution proceeding. By the time [the husband] was deposed we believe it is fair to assume that his attorney had explained to him what effect the community property presumption [now found in Fam. Code, § 2581] had on jointly held property. Thus his deposition testimony does not necessarily show the parties’ separate agreement that the jointly held property was actually community property. His testimony may only refer to the fact that he was aware that he was governed by the presumption. Because this latter interpretation is reasonably probable we conclude that in the absence of other independent or corroborating evidence there is insufficient evidence to support the court’s finding of transmutation.” (Blair, supra, 199 Cal.App.3d at p. 168.)
The evidence submitted by Madani suffers from the same infirmity as that presented in Blair. The documents signed by Davoud referring to the realty as community property (the stipulation re value and the stipulation giving Zahra temporary management and control of four of the properties) were submitted during the dissolution proceeding when he was represented by counsel. We can reasonably presume that his attorney advised him that, for purposes of the divorce, the properties were presumptively community property, subject to the equal division rule. As a result, Davoud referred to the realty as community property. But markedly absent from the documents was any “express declaration” by Davoud that by executing them, he was changing the manner in which he and Zahra held title. Further, there was no acknowledgement in the documents that title had originally been taken as joint tenants and that community property is a different species of ownership. While “[a]n ‘express declaration’ does not require use of the term[] ‘transmutation’... or a particular locution... [it, nonetheless, ] must unambiguously indicate a change in character or ownership of property. [Citation.] A party does not ‘slip into a transmutation by accident.’” (In re Marriage of Starkman, supra, 129 Cal.App.4th at p. 664, italics added.) There must be “a clear demonstration of a change in ownership or characterization of the property at issue.” (In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 593.) The terse references to community property in the stipulated order re temporary management and control and the stipulation of value do not constitute a clear demonstration that Davoud was changing the realty’s character.
Further, the additional documents Madani offered do not support a claim of transmutation. The correspondence from Davoud’s attorney was, of course, not signed by Davoud. Similarly, Davoud had not signed the Schedule of Assets and Debts executed by Zahra. Even were we to conclude that by later executing the stipulation re valuation of community assets Davoud had, within the meaning of Family Code section 852, subdivision (a), “consented to, or accepted” the documents’ characterization of the properties as community property, that was still done in the context of the dissolution proceeding and the community property presumption found in Family Code section 2581. Consequently, these documents do not establish a transmutation.
In sum, in light of Madani’s failure to offer any “independent or corroborating evidence” (Blair, supra, 199 Cal.App.3d at p. 168) to that generated by the dissolution proceeding to demonstrate Davoud’s express intent to change the nature of the ownership interest in the realty, we conclude that Madani failed to rebut the presumption that Davoud and Zahra held the six pieces of property as joint tenants. (See also Dorn v. Solomon, supra, 57 Cal.App.4th at pp. 652-653 [a marital settlement agreement stating that a family home held as joint tenancy was community property was insufficient to demonstrate a triable issue of fact about the property’s status because although the agreement had been prepared by the husband’s attorney, the husband had not signed it].)
3. The Pour-Over Wills Did Not Sever The Joint Tenancies
As indicated earlier, in 2002 Davoud and Zahra concurrently created a revocable living trust and executed formal wills, bequeathing their personal and real property to the Trust. Madani concedes that none of the six parcels of realty was ever transferred into the Trust but nonetheless argues: “The execution of the pour-over Wills themselves by both parties caused the joint tenancies to lose their character even though they did not transfer title to the properties to the trust. In effect, the parties said there is a different way than right of survivorship by which we want to dispose of our properties and signed an agreement to that effect, in the manner authorized by subdivision (d) of Civil Code section 683.2 itself, even though they did not complete their action by deeding titles to the trust.” Subdivision (d) provides: “Nothing in subdivision (c) [requiring recordation] limits the manner or effect of: [¶] (1) A written instrument executed by all the joint tenants that severs the joint tenancy. [¶] (2) A severance made by or pursuant to a written agreement of all the joint tenants.” (Civ. Code, § 683.2, subd. (d).)
Madani’s reliance upon Estate of Powell (2000) 83 Cal.App.4th 1434 to support this argument is misplaced and, in fact, supports a contrary conclusion. There, the husband and wife held the family residence in joint tenancy. They executed a living trust, funded by specific assets, including the home. Each signed the document creating the trust. The reviewing court found that by transferring the home into the trust, the parties had “eliminated the right of survivorship central to a joint tenancy.” (Id. at p. 1442.) The court further rejected the claim that recordation of either the trust or a deed from the joint-tenants to the trust was necessary to terminate the joint tenancy. It reasoned: “The [home] is expressly listed as an asset of the trust on schedule A, attached to the trust document. A declaration by the trustors that they hold property in trust for another is sufficient to transfer real property to a trust. [Citations.] ‘[T]here is no requirement that the settlor/trustee execute a separate writing conveying the property to the trust.’ [Citation.]” (Id. at p. 1443.)
In contrast, Davoud and Zahra never transferred any of the six parcels into the Trust. In other words, they took no action that would have caused the properties to lose their character as joint tenancies or, to paraphrase subdivision (d) of section 683.2, they never executed a written instrument severing the joint tenancies.
B. THE PERSONAL PROPERTY
Madani launches multiple attacks on the trial court’s order confirming Davoud’s ownership of the personal property by virtue of his status as the sole remaining trustee of the Trust.
First, Madani claims that “no assets were ever transferred to the trust.... The trust remained a hollow shell without assets except for two assignments drafted and included in the trust in 2002 that essentially acted in the same manner as the pour-over will, i.e., to catch assets the Trustors failed to fund or transfer into the trust.” This claim mischaracterizes the nature of the two assignments. The assignments constituted present transfers by Davoud and Zahra to themselves as co-trustees of the Trust by which they conveyed all stock in Jones/Khiaban Engineers, Inc. and title to all of their personal property. These assignments were sufficient to transfer the properties into the Trust. (Prob. Code, § 15200, subd. (b); Estate of Heggstad (1993) 16 Cal.App.4th 943, 948-949.) Because the property had been transferred to the Trust, it was not part of Zahra’s estate unless the Trust had been revoked prior to her death. (Estate of Heigho (1960) 186 Cal.App.2d 360, 364-365.)
Madani next argues: “The [May 22, 2008] document by its language revoked all prior wills and trusts, and specifically revoked the Will created in 2002 which was drafted and designed to pour assets into the trust. By revoking and abrogating the will of 2002, any properties not funded in the trust should be probated according to the terms of the 2008 Will.”
Contrary to Madani’s claim, Zahra’s May 22 writing did not expressly revoke the Trust. In fact, it made no reference to the Trust. At most, it could be interpreted as constituting an implicit revocation of the 2002 will containing the pour-over provision to the Trust because of its disposition of Zahra’s property: none to Davoud, all to her sister. (See Prob. Code, § 6120, subd. (a).) We need not decide that point because, even assuming that the May 22 document constituted an attempt to revoke the Trust, it failed in that regard.
Probate Code section 15401, subdivision (a) provides:
“(A) A trust that is revocable by the settlor may be revoked in whole or in part by any of the following methods:
“(1) By compliance with any method of revocation provided in the trust instrument.
“(2) By a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor. If the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph.”
The Trust set forth a specific procedure for its revocation during the Khiabans’ lifetimes. Article 2.2 of the Trust is entitled Revocation During Settlors’ Joint Lifetime and provides: “During the lifetimes of both Settlors, the Trust, as to community property, may be revoked in whole or in part by either Settlor, and any separate property may be revoked in whole or in part by the Settlor who contributed such separate property. The power of revocation shall be exercised by written notice delivered to the Trustee and to the other Settlor if the revocation applies to community property. In the event of such revocation, the community property or the revoked portion shall revert to both Settlors as their community property and the separate property, if any, shall revert to the Settlor who contributed it.” (Italics added.)
The Trust provided that it could be amended during both settlors’ lifetimes by written agreement. The Khiabans amended the Trust in April 2003 but the amendment does not impact any of the issues raised in this appeal.
Zahra failed to revoke the Trust because she did not comply either with the method set forth in the Trust or in the governing statute.
As set forth above, the Trust provided that Zahra could revoke it during their joint lifetimes by delivering a written notice to Davoud. Here, no written notice was delivered to Davoud during Zahra’s life. The May 22 document was not sent by FAX to Davoud’s attorney until approximately eight hours after Zahra died.
Madani’s reliance upon Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882 (Gardenhire) to support a contrary result is misplaced. In that case, an individual created a trust of which she was the sole trustor, trustee, and beneficiary during her lifetime. The trust provided that it could be revoked at any time during the trustor’s lifetime “‘by written notice signed by the Trustor and delivered to the Trustee.’” (Id. at p. 886.) Thereafter, the trustor executed a will stating that it was her intent “‘to dispose of all real and personal property which I have the right to dispose of by Will.’” (Ibid.) The will made no mention of the trust. (Ibid.)
In a writ proceeding, the issue was whether the will constituted a revocation of the trust. The appellate court concluded that it did. It found that the execution and delivery of the will complied with the trust’s method of revocation because it was executed by the settlor and delivered to herself as trustee. Further, the reviewing court found that the will qualified as “written notice” because the settlor “did not limit or qualify the term ‘written notice, ’ she authorized revocation via any writing that unambiguously manifested her intent to revoke, including a will.” (Gardenhire, supra, 127 Cal.App.4th at p. 888.)
The court explained: “We find significant support for such broad latitude in the fact that she named herself the trustee. The trust allowed [her] to revoke simply by giving herself written notice of her intent to do so. Since she could not be mistaken about her own intent no matter how she chose to manifest it in writing, the broad, unqualified language of the trust reasonably implies that she did not intend to restrict the form of written notice or the nature of the documents used to provide it. Rather, any writing that unambiguously manifested her intent would do.” (Gardenhire v. Superior Court, supra, 127 Cal.App.4th at p. 888.)
Gardenhire does not support Madani’s position. In that case, there was no requirement that a third party (in this case Davoud) receive the notice of revocation during the settlor’s lifetime. It was sufficient for the settlor to execute and deliver to herself a will revoking the trust. In that limited circumstance, revocation of trust by will was proper because the settlor and trustee were the same individual. But here the Trust requires delivery of a writing to the co-trustee during the revoking trustee’s lifetime. That event did not occur. Hence, no revocation occurred.
Without citation to any authority, Madani argues that because the May 22 document was delivered to Davoud “through his attorney, at the first possible opportunity, ” the delivery should not be considered “invalid due to circumstance beyond the control of the deceased.” (Boldface and capitalization omitted.) We disagree. The Trust explicitly set forth the procedure to revoke its provisions. Zahra failed to comply with that procedure.
Lastly, assuming arguendo that the Trust did not set forth the exclusive method of revocation, Zahra’s action did not comply with the revocation method provided by statute. In that regard, she was required to deliver a signed writing other than a will to the trustee for the revocation to be effective. Even assuming that the statute does not also require delivery to a co-trustee (here, Davoud) during the revoking settlor’s lifetime for the revocation to be effective (see Masry v. Masry, supra, 166 Cal.App.4th at p. 743), the revoking document must not be a will. Here, it is clear (and it has always been Madani’s position) that Zahra intended the May 22 writing to act as a will because it was an effort to make a testamentary disposition of her property. It therefore could not qualify as a proper method of revocation pursuant to Probate Code section 15401, subdivision (a)(2).
We express no opinion whether the May 22, 2008 document constitutes a valid will.
DISPOSITION
The orders under review are affirmed. Respondent Davoud Khiaban shall recover costs on appeal.
We concur: EPSTEIN, P. J.SUZUKAWA, J.
“(a) Subject to the limitations and requirements of this section, in addition to any other means by which a joint tenancy may be severed, a joint tenant may sever a joint tenancy in real property as to the joint tenant’s interest without the joinder or consent of the other joint tenants by any of the following means: [¶]...
“(2) Execution of a written instrument that evidences the intent to sever the joint tenancy... or of a written declaration that, as to the interest of the joint tenant, the joint tenancy is severed. [¶]...
“(c) Severance of a joint tenancy of record by... written declaration, or other written instrument pursuant to subdivision (a) is not effective to terminate the right of survivorship of the other joint tenants as to the severing joint tenant’s interest unless one of the following requirements is satisfied:
“(1) Before the death of the severing joint tenant, the... written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.
“(2) The... written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.” (Italics added.)
The summons served on Zahra included the required admonition. It read: “WARNING: California law provides that, for purposes of division of property upon dissolution of a marriage or domestic partnership or upon legal separation, property acquired by the parties during marriage or domestic partnership in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language in the deed that characterizes how title is held (i.e., joint tenancy, tenants in common, or community property) will be controlling, and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.”