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					                       JOINT TENANCY NOMINEE AGREEMENTS

                                Creative Uses for an Old Concept


                                 MICHAEL PATIKY MILLER
                                 WEINBERG, ZIFF & MILLER
                                     Palo Alto, California

        Experienced estate planners often hold joint tenancy in low esteem. This lack of regard
is often justified by true-life experiences of numerous clients. Typical problems with joint
tenancy have included:

       • An elderly parent adds the name of a child to her major savings account, “for
convenience,” so the child can pay for normal bills and expenses. The child goes to the bank,
withdraws all of the funds, and runs off to the Bahamas with a new girlfriend.

        • A married couple goes to an attorney for estate planning. A complex series of wills
and trusts is drafted and executed. Ten years later, when the first of the spouses passes away, it
is discovered that all of the couple’s property is held in joint tenancy, and there is nothing with
which to fund the trusts contemplated by the estate plan.

       • An elderly widow places the name of her son on her joint bank account. The son owes
back taxes to the Internal Revenue Service, which levies on the account and takes all of the
widow’s funds.

        • An elderly person asks her next-door neighbor if she would help her with the payment
of household expenses. The neighbor agrees, so the elderly person transfers her funds into a
joint bank account with the helpful neighbor. At a later time, the neighbor and her husband go
through bitter divorce proceedings, and the husband makes a claim for a portion of the bank
account proceeds.

        • Two sisters have lived together for a number of years. One is a highly compensated
professional, the other remains at home to take care of the domestic duties. The sisters place all
of their funds and other property in both of their names in joint tenancy form. The stay at home
sister dies first, and the Internal Revenue Service then asserts a claim that her estate includes all
of the jointly held assets, which have a net value in excess of the applicable exclusion amount for
federal estate tax.

        • A widower has three adult children, only one of whom lives nearby. The father places
this child’s name in joint tenancy with the father on a $100,000 bank account. When the father
dies, his last will & testament is filed, showing an equal division of all assets among the three
children. However, the child whose name is on the joint account collects it for herself, and
refuses to share the proceeds with her siblings.

        Experienced estate planners will recognize some, if not all of the above examples, from
their own files. All of the above problems occurred because property owners did not understand
the legal ramifications behind ownership of property in joint tenancy. Joint tenancy, sometimes
called joint tenancy with right of survivorship, is frequently used in the wrong circumstances,
and/or for the wrong reasons. On the other hand, when used properly, joint tenancy can often
solve many problems, and it can provide an economical alternative to other estate planning
and/or probate techniques such as revocable living trusts or conservatorships.

         As one can tell from the various examples, the placing of more than one name in the title
of a bank account, parcel of real property, or some other form of asset is more than the creation
of an agency relationship. Yet many of the problems which have occurred through the use of the
joint tenancy form of ownership have been caused by a desire for an easy solution to the problem
of having someone handle the financial affairs of the owner. All too often, well meaning bank
tellers, stock brokers, real estate sales persons, and others involved in day to day consumer
financial transactions suggest the joint tenancy form of holding title to people who want
someone else to assist them with their personal financial affairs. A well known national
authority on retirement plans, Betty Orvell, Esq. of Oakland, California, once stated in a lecture
in Sacramento, California: “More estate planning is done by high school graduates who hold
jobs as bank clerks and secretaries in title companies than by all of the attorneys in California.”

        In other cases it will be the property owners’ decisions to change title from their own
name to a joint tenancy, because of a desire “to avoid probate” or because they believe
(incorrectly, of course) that somehow this will avoid estate taxes in the future. Rarely will these
owners seek the advice of a qualified estate planning or tax attorney before changing the title
designation on their assets.

       Joint tenancy evolved from common law concepts of title to real and personal property.
The common law required that in order to have a joint tenancy, there had to be “four unities:”
Time, Title, Interest, and Possession.1 This meant that two or more persons had to be vested with
equal interests (i.e. shares) at the same time from a common grantor. This led to the curious
custom of using a “strawman” when someone wanted to add another in title. A (the original
grantor) had to convey title in Blackacre to B; B in turn would then convey the property to A and
to C (the desired co-tenant) “as joint tenants with right of survivorship, and not as tenants in
common.” Over the years, the need to establish a joint tenancy through such a rigid formality
became lessened, either through judicial interpretations or statutory reforms.2

        Under the common law definition of a joint tenancy, the creation of the tenancy gave
each joint tenant a vested, undivided interest in the property. In other words, this meant that a
completed gift occurred. Again, statutory and/or judicial interpretations altered this concept for
various items of property. It is generally the case that the mere creation of a joint tenancy in a
bank account will not create a vested gift. Only if the non-donor joint tenant takes a portion of
the funds for his or her own purposes will a gift occur.3 This approach is used for federal gift tax
purposes as well, unless state law requires a different result.4 However, this approach of a
contingent ownership does not apply to the majority of potential assets which can be re-titled
into joint tenancy. For example, the creation of a joint tenancy in a security held in certificate
form normally creates a vested, completed gift of the proportional share of such security.5
However, an exception from the gift tax exists for securities held in a "street name" by a broker.6
By extension, this should also apply to money market funds, since the underlying securities in
these funds (bankers acceptances, government bonds, and the like) are held for the benefit of
fund depositors in “street name” nominee accounts.

        The creation of a joint tenancy in real property normally is a completed, taxable gift,
since the donee joint tenant can terminate the joint tenancy, and thereafter hold his or her interest
as a tenant in common. Creation of such a joint tenancy often results in an unintended, and
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unknown to the original owner, of a gift tax liability. Further, since federal law taxes the entire
joint tenancy on the death of the first tenant, less any portion which can be proved to have arisen
from consideration provided by the survivor(s), the joint tenancy will be taxed again upon the
donor's death.7 A person who transfer title of real property to themselves and others in a joint
tenancy will normally loss the benefits of depreciation on the portions thus conveyed away.
Further, the new joint tenants will take their donor's tax basis and depreciation schedule. 8 On the
other hand, if the prospective donor waits until death, and the property passes via a testamentary
device, such as a will or living trust, the property will then receive a step up in basis, as property
received from a decedent.9 Such inclusion, however, will not discharge any delinquent tax
liabilities caused by the creation of the joint tenancy in a prior year.

        Federal gift and estate laws have been liberalized over the past ten years for joint
tenancies between spouses. Joint tenancy, or the substantially equivalent in non-community
property jurisdictions for assets held by a husband and wife, such as tenancy by the entirety, is a
common form of property ownership between spouses. Federal law now recognizes the concept
of a qualified joint tenancy, which holds that each spouse has contributed an equal share to the
property. This law avoids the former problem of the joint tenancy being taxed in the estate of
the spouse who stayed home to attend to domestic duties.10 However, the concept of a qualified
joint tenancy applies only to married couples, so the prior death of the donee joint tenant can still
result in the property being taxed in that person's estate, unless there is evidence which is
sufficient to convince the Internal Revenue Service of the source of the consideration for the
property. The sample agreement set forth in this article should satisfy inquiries of the tax
authorities as to the source for the joint tenancy property.

        When one considers all of the problems mentioned with joint tenancy, a prudent estate
planner might wonder if it has any place at all in today's environment? The answer is that one
must bear in mind the fact that joint tenancy is a readily acceptable form of ownership with the
public at large, financial institutions, title companies, and the like. The key is to use the joint
tenancy form of ownership in an intelligent and creative manner. One such approach is the
Conditional Joint Tenancy. As is obvious from the examples at the outset of this article, one of
the major problems with joint tenancy is the fact that a person who is intended by the owner of
the property to be a de facto agent (such as the son who name is added by his father to a joint
account so bills can be paid) actually becomes an owner of an undivided share of the property in
the eyes of the law, tax authorities, creditors, etc. However, if there is an agreement between the
owner of the property and the intended “agent,” who actually is a “nominee” for the original
owner, then many of the problems associated with joint tenancy can be avoided. A key element
of such an agreement should be the reservation in the original owner of the right to demand
termination of the joint tenancy at any time, and as an extra bit of caution, to direct the
disposition of such owner’s interest in the joint tenancy (usually 100%) through a testamentary
disposition of the property. Because of such an agreement, the joint tenancy would not be
viewed by the Internal Revenue Service as a completed gift until the date of death of the owner,
the nominal donee [i.e. the new joint tenant] would have no vested property rights in the asset
until the owner’s death. While this would require the inclusion of the property in the original
owner’s taxable estate, this is what the law requires anyway, [IRC §2040(a)] and the entire asset
would qualify for a step up in basis pursuant to Internal Revenue Code Sec. 1014 [assuming this
will statute still be in existence after 2009 based upon the estate and gift tax laws as these stand
at the end of 2003].

        Since the owner usually wants the joint tenant to receive the property upon the owner's
death, and to avoid probate, the agreement should provide that if no specific devisee [or legatee
                                                  3
or equivalent title] of the joint tenancy property is named in the owner's will, then the named
joint tenant is the owner by operation by law. The agreement should specify that a general
residue clause is not a specific disposition of the joint tenancy asset, and that absent such a
specific devise, the property passes to the surviving joint tenant. On the other hand, if the
property is so specifically devised, the surviving joint tenant should be required by the
agreement to convey the property to the designated beneficiaries. One can either make this a
right enforceable by the executor, in which case the asset will become part of the probate estate,
or make the transfer of the asset a personal duty of the surviving joint tenant. In the former case,
making the asset subject to probate jurisdiction will likely make the property subject to creditor
claims in states where joint tenancies are normally not so liable [cf. infra.] and may increase
probate fees where attorney and executor compensation is based upon a percentage of the assets
under administration. In the latter case, a beneficiary could bring an action for enforcement of a
constructive trust if the surviving joint tenant refuses to honor his or her previous written
obligation. The agreement should provide for the award of attorney fees and costs to the
prevailing party in order to put “teeth” into the duty.

        Of course, as with any form of nominee agreement, or any other form of a fiduciary
relationship, one should select an agent in whom the principal has the utmost confidence. The
provisions regarding transfer to designated beneficiaries are first and foremost, to allow the joint
tenancy to be treated as a conditional transfer which takes place only on the death of the
grantor.11 Nevertheless, the agreement should provide for “teeth,” such as an attorney fees
clause and provisions for venue in a jurisdiction convenient to the donor, just in case the
agent/joint tenant decides to become greedy at some future date.

         The Uniform Probate Code, Article VI [Multiple Party Accounts], enacted in some form
in many states, applies to a wide variety of financial institutions.12 However, because of the
slight changes in the format adopted by each Legislature, one needs to see the scope to which
such law applies in a particular jurisdiction. For example, in California the term “financial
institution is defined under general definitions whereas in Montana the Multiple Party Accounts
portion of the Uniform Probate Code gives a somewhat broader definition.13 However, under
either statute the term “financial institutions” seems to exclude a wide range of modern financial
organizations such as mutual funds, money market funds, tax-deferred annuities, and a wide
range of other financial arrangements, unaffected.

       The various formats derived from the Uniform Probate Code on Multiple Party Accounts
which is consistent with many common law decisions, recognize that the parties can have their
own intent regarding their respective rights to a joint account; this intent must be demonstrated
by “clear and convincing evidence.” 14

         This author has used a variation of the form of agreement at the end of this article on a
number of occasions. The suggested form of the agreement should come within the scope of the
various forms of the Multiple-Party Accounts Law, as well as the general provisions in the other
statutes and common law case decisions which govern joint tenancies other than in financial
institutions.15 Of course, one should adapt the language to the specific situation. However, the
use of the commonly accepted joint tenancy form of ownership, coupled with the legal and tax
protections encompassed by the draft agreement, can prove to be a useful implement in an estate
planning practice. The co-owner stands in a fiduciary relationship to the original owner, but also
may owe a duty to the owner’s designated beneficiaries. For example, a widow in an Eastern city
may name her daughter, who lives nearby, as the joint tenant yet provide in the agreement that


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upon the mother’s death the daughter will share the proceeds of the joint account with her
brother who lives on the West Coast.

        The effectiveness of the agreement as against the rights of creditors, including the tax
authorities, to property held in joint tenancy form will depend upon the particular state. Even the
Internal Revenue Service is bound by state law on this issue. Almost every state, whether
specifically noted in the Multiple-Party Accounts Law or in the state’s law on fraudulent
transfers, such as the Uniform Fraudulent Transfer Act (or its earlier version, the Uniform
Fraudulent Conveyance Act) which uniform acts have been adopted in most states, makes
transfers in fraud of creditors or when the transferor is insolvent ineffective, However, under
most state laws, the test of insolvency is determined when the transfer is made. Normally, if a
joint tenancy is created when the transferor is solvent, a subsequent insolvency will not
invalidate the joint tenancy nor make it subject to the owner’s creditors at his or her death.. In
those states which hold that the classic laws of joint tenancy mean that the death of the original
contributor is not a transfer upon his or her death, but merely a termination of the right to
withdraw, creditors will have no recourse.[15] In such states, the claim of a creditor, even the
IRS, will evaporate if the debtor joint tenant dies before a levy is placed upon the asset.16

       However, the Uniform Probate Code does impose a liability on joint tenancy assets.
Montana has adopted the Code almost verbatim and its version of the Code. §72-6-215 states:
Rights of creditors and others.
       (1) If other assets of the estate are insufficient, a transfer resulting from a right of
       survivorship or POD designation under this part is not effective against the estate of a
       deceased party to the extent needed to pay claims against the estate and statutory
       allowances to the surviving spouse and children.
       (2) A surviving party or beneficiary who receives payment from an account after the
       death of a party is liable to account to the personal representative of the decedent for a
       proportionate share of the amount received to which the decedent, immediately before
       death, was beneficially entitled under 72-6-211, to the extent necessary to discharge the
       claims and allowances described in subsection (1) remaining unpaid after application of
       the decedent's estate. A proceeding to assert the liability may not be commenced unless
       the personal representative has received a written demand by the surviving spouse, a
       creditor, a child, or a person acting for a child of the decedent. The proceeding must be
       commenced within 1 year after death of the decedent.
       (3) A surviving party or beneficiary against whom a proceeding to account is brought
       may join as a party to the proceeding a surviving party or beneficiary of any other
       account of the decedent.
       (4) Sums recovered by the personal representative must be administered as part of the
       decedent's estate. This section does not affect the protection from claims of the personal
       representative or estate of a deceased party provided in 72-6-226 for a financial
       institution that makes payment in accordance with the terms of the account.

        Therefore, practitioners when utilizing the following sample format, should be alert to the
special requirements of their particular locality as to the issues of the right to have an agreement
which can express the clear intentions of the parties who enter into a joint tenancy as well as the
potential for recovery by creditors following the death of the original owner.




                                                 5
SAMPLE JOINT TENANCY ACCOUNT NOMINEE AGREEMENT

This Agreement is between [Parent] a resident of [COUNTY & STATE], the Owner of various
accounts (hereinafter referred to as the "OWNER") and [Child or other nominee] a resident of
[COUNTY & STATE] as his/her NOMINEE and Nominee on said accounts (hereinafter
referred to as the "NOMINEE"). NOMINEE is the [son/daughter/other relationship] of
OWNER, and OWNER wishes that NOMINEE act as OWNER's nominee on his/her various
investments. To this end, NOMINEE is now, or will be, listed as a joint tenant on various bank
accounts, certificates of deposit, securities, brokerage accounts, real estate deeds, and all other
such holdings, titles, and properties. Such listing of NOMINEE is solely for the convenience of
OWNER, and is done to permit NOMINEE to succeed to such property under operation of law,
subject to the terms of this Agreement. NOMINEE is willing to so act, and to do so without
compensation, except for reimbursement of actual and necessary expenses. To this end the
parties agree as follows:

1. OWNER hereby consents to NOMINEE being listed as one of two joint tenants (the other
being himself/herself) on all of his/her investment accounts and/or those items of property so
identified and listed in Schedule A, which is attached hereto and incorporated herein by
reference. [MODIFY ABOVE CLAUSE IF THERE WILL BE MORE THAN TWO JOINT
TENANTS]

2. NOMINEE recognizes that OWNER is the sole owner of all of these accounts and/or other
items of property, and that no gift or transfer of equitable ownership is made by any such
transfer. The same status applies to any existing accounts in which NOMINEE is now listed as
a joint tenant. OWNER's taxpayer identification number shall be used for all such accounts.

3. NOMINEE agrees not to divert, spend, or use any of the funds for NOMINEE's own
purposes or needs. NOMINEE recognizes and agrees that NOMINEE is a joint tenant solely for
the convenience of OWNER. NOMINEE shall account to OWNER for all of NOMINEE's
activities with respect to such accounts.

4. OWNER may terminate this arrangement at any time by written notice to NOMINEE.
NOMINEE agrees to reconvey all property held in such accounts to OWNER upon such
demand.
[OPTIONAL CLAUSE - DEPENDING UPON LOCAL STATE LAW]
 OWNER may designate in writing, either by a separate document or by a specific clause in
OWNER'S will or trust referring to a particular account or other item of property, who shall
receive such asset upon OWNER's death. However, a general residuary clause in OWNER'S
will or trust shall not be deemed such a direction. In the absence of any such explicit
testamentary directions, the various joint tenancy accounts and other assets shall belong to
NOMINEE as the surviving joint tenant by operation of law.

5. [OPTIONAL CLAUSE] As part of this agreement, OWNER shall execute a Durable
General Power of Attorney, naming NOMINEE as the OWNER'S Attorney-in-Fact. [SEE
FOOTNOTE 17]

6. This Agreement shall be construed and controlled by the laws of the State of ____________.



                                                6
The place of venue for any action shall be in the County of OWNER's domicile during the
lifetime of OWNER. [OPTIONAL - PROVIDE FOR A CONVENIENT VENUE FOR THE HEIRS, IF
PERMITTED UNDER LOCAL LAW]

7. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof and merges all prior and contemporaneous communications. It shall not
be modified except by a written agreement dated even herewith or subsequent hereto signed on
behalf of each of the parties.

8. If either judicial or non-judicial action (including arbitration or mediation) is necessary to
protect a party's rights under this Agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs of the proceeding.

9. This Agreement will inure to the benefit of and be binding upon the parties, their successors,
administrators, heirs, devisees, personal representatives, and assignees.

IN WITNESS WHEREOF, the parties have executed this Agreement                  effective as of the
_____________ day of _____________, 2____.


___________________________ _________________________
OWNER                               NOMINEE

NOTE
[THE SIGNATURES OF BOTH THE OWNER AND THE NOMINEE SHOULD BE
ACKNOWLEDGED BEFORE A NOTARY PUBLIC IN ACCORDANCE WITH
APPLICABLE STATE LAW]

                             ******************************
                           NOTES ON USE OF THE AGREEMENT

       A. As noted in the form, it may be useful to also have the Owner execute a Durable
General Power of Attorney, which may or may not have a "springing clause", so that it will not
become effective unless the Principal actually becomes incapacitated. 17 An attorney-in-fact
under such a power of attorney owes a fiduciary duty to the principal, which is consistent with
the duty owed by the Nominee to the Owner under the Conditional Joint Tenancy Agreement.

       B. The attorney must give careful thought to whether the Conditional Joint Tenancy
Agreement should be recorded. Unless the document is actually recorded in the counties where
real property is located, there will be no constructive notice to third parties. On the other hand,
the lack of recordation may make it simpler for the surviving joint tenant to deal with the
property following the owner's death. In theory, recordation might protect the property from
claims of the Nominee's creditors. However, on the practical side, it is rare that the Owner (who
is usually a single parent) will entrust his or her affairs to a Nominee who is not prudent and
solvent. Therefore, the problems of potential creditors of the apparent joint owner (i.e. the
Nominee) is generally only a theoretical issue. This author normally does not recommend
recording Conditional Joint Tenancy Agreements; however, if there are more than one child, we
recommend to the Owner that he or she authorize us to send copies of the Agreement to the
other children, who are not the named Nominee, as well as to the third party or institution who


                                                7
is named as executor in the owner's will, if such nominated executor is not already within the
above category.

        C. The right of the other beneficiaries and/or personal representatives to enforce a claim
of the Owner following the owner's death is a powerful check on the Nominee. The Conditional
Joint Tenancy Agreement should be most useful when the designated Nominee is the sole (or
principal) object of bounty of the Owner, such as an only child of a widow, widower or other
single parent. The Agreement can avoid the need for drafting a revocable living trust, at a
fraction of the cost, and without the necessity to deal with transfer agents and other
functionaries who may require a great deal of documentation involved in the funding of a trust
where a formal living trust is used. On the other hand, if there any several intended
beneficiaries, or where the estate is of considerable size, a funded, revocable living trust may be
the better solution.18

        D. The Conditional Joint Tenancy Agreement can also be used to provide for a particular
asset in lieu of including such an item in the overall will or trust. For example, if a testator owns
real property in another state, he or she could record a joint tenancy deed naming one or more
children, who would take the property upon the parent's death. The problems of an immediate
gift should be avoided if the Conditional Joint Tenancy Agreement is executed. If only one of
several children is designated as the joint tenant for a particular property, either the owner’s will
or trust can take this into account, so that the value of the property passing outside of the will is
adjusted when the decedent's entire estate (in the sense of the federal estate tax gross estate) is
divided among the various children, or the Agreement can require the surviving owner to
distribute as the Nominee.

       E. The joint tenancy designation will avoid the necessity for an ancillary probate, which
is generally a time consuming effort, with expenses frequently out of proportion to the value of
the property located outside of the owner’s domicile.

        F. As with other estate planning techniques, the Conditional Joint Tenancy Agreement
should be used only after a careful and thorough review of the client's overall situation. Estate
planners should find this device useful in many situations, especially where the overall cost to
the client is a significant factor.




                                                 8
This Article is a revision of an article that originally was written for Case & Comment.
However, that nationally distributed journal cease to operate before publication appeared so the
first version of this article appeared in The Docket [San Mateo County Bar Assoc.] entitled:
“Joint Tenancy Agency Agreements” (Nov. 1990 edition). Revised by the author in 1998 for
publication at http://www.taxattorney.com/ and in 2003 for publication in E-STATE, an
electronic publication of the American Bar Association. Original Copyright by Michael Patiky
Miller




                                               9
                                          FOOTNOTES

1.     2 Blackstone Commentaries *180

2.     See Calif. Civil Code §683.2; Cf. also NY EPTL §6-2.2; See Riddle v. Harmon, 102
       CA3d 524, 162 Cal. Reptr. 530 (1980), which set forth the principal that a joint tenancy
       can be broken by just one of the joint tenants, without the use of a "strawman."

3.    Uniform Probate Code, Article VI [Multiple Party Accounts] This has been enacted in
       numerous states, e.g., Calif. Probate Code §5100 et seq.

4.     IRS Reg. §1.2511-1

5.     Ibid.

6.     Rev. Rul. 69-148

7.     I.R.C. §2040 (a)

8.     I.R.C. §1015

9.     I.R.C. §1014

10.    I.R.C. §2040 (b)

11.    I.R.C. §§2037,2038

12.    Uniform Probate Code, Article VI [Multiple Party Accounts

13     California Probate Code Sec. 40. defines a "Financial institution" as a state or national
       bank, state or federal savings and loan association or credit union, or like Montana’s
       version [adopted from the Uniform Probate Code (see Stats. 72-6-201 (4)] defines
       "Financial institution" as “an organization authorized to do business under state or
       federal laws relating to financial institutions and includes a bank, trust company, savings
       bank, building and loan association, savings and loan company or association, and credit
       union.” .

14.    Calif. Probate Code §5302 (a). However, the Uniform Probate Code, in its original form,
       appears to be more restrictive. Sec. 6-213. Alteration of rights.
       (1) Rights at death under 6-212 are determined by the terms of the account at the death of
       a party.
       (2) Except as provided in subsection (3) and unless otherwise agreed in writing between
       the parties to the account, the terms of an account may be altered by written notice given
       by a party to the financial institution to change the terms of account or to stop or vary
       payment under the terms of the account. The notice must be signed by a party and
       received by the financial institution during the party's lifetime.
       (3) A financial institution may, in its discretion, refuse to honor a request for alteration of
       rights that would change:
       a) the financial institution's obligations or rights under the contract of deposit; or
                                                 10
      b) the parties to a multiple-party account if the request is not signed by all of the parties
      to the account.
      (4) A right of survivorship arising from the express terms of the account, from 6-212, or
      from a POD designation may not be altered by will. *

*     The concept of the nominee agreement should not violate the Uniform Probate Code’s
      prohibition of an alteration by will; rather, the agreement authorizes treats a specific
      devise as a sort of power of appointment which obligates the surviving joint tenant to
      make the transfer pursuant to such agreement. The transferor is not making a gift but
      rather is following a previously entered into contract. In all likelihood the original
      owner of what becomes the joint tenancy asset will not make a disposition by will, but
      the right to do so, coupled with the right to revoke, makes the joint tenancy an incomplete
      gift for tax purposes.

15.   Citizens Action League v. Kizer, (1989) 887 F.2d 1003 (9th Cir.) While this case’s
      holding on the immunity of joint accounts from Med-caid claims (called Medi-Cal in
      Calif.) was changed by federal law in 1993, this case still is a leading exponent of the
      Common Law’s majority rule on the immunity of joint tenancies from the claims of
      creditors following death.

16.   For example, see Rev. Rul. 78-299, 1978-2 CB 304 which held that unpaid income taxes
      owed by a decedent who had filed no returns for several years were not the personal
      liability of the decedent's spouse who had no income for those years. Nor was the spouse
      liable for such taxes as transferee of jointly-owned assets that passed outside the probate
      estate directly to the spouse and that, under applicable state law, were not subject to the
      claims of decedent's creditors. No lien can be imposed on account of unpaid taxes for
      which no assessments were made prior to decedent's death. (IRC Secs. 6013, 6322,
      6901; IRS Regs. §§301.6901-1,. 1.6013-4 )

17.   Uniform Durable Powers Act; Calif. Civil Code §2400; cf. N.Y.Gen. Oblig. Law §5-1601

18. Miller, Update on Whether to Consider Using a Funded Living Trust to Avoid Probate,
     16 Estate Planning 140 (May/June 1989)




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