        THEAT-~RNEYGENERAL

                      OF-TEXAS




Honorable Robert S. Calvert          Opinion No, c-204
Comptroller of Public Accounts
Capitol Station                      Re:   Taxability for inheri-
Austin, Texas                              tance tax purposes of
                                           trust accounts which
                                           under New York law are
                                           described as Totten
 Dear Mr. Calvertr                         Trusts.
        We quote the following excerpt from your letter request-
ing the opinion of this office on the above captioned matter.
               "Emil Andrew Edwards died testate a resi-
           dent of Brazos County, Texas, on January 29,
           1962, and the proper report has been made to
           this ,Departmentas required by the law.
              "Schedule B-l of the inheritance tax
           report discloses the following informationr
               "'Three separate trusts were established
           as of April, 1958, by deposits of $10,000 in
           each of the three accounts listed below. Each
           account was In the name of Emil A. Edwards in
           trust for Teresa Vivian Graham, a niece. The
           motive was love and affection for one who had
           lived with him for 21 years. The donor was
           judged mentally incompetent on May 15, 1961,
           and remained so until his death thus losing
           all power to revoke the trusts.

              "'The accourits had balances as of Janu-
           ary 29, 1962 as~follows:
           Emigrant Industrial Savings Bank of
              New York                           - io,379.92
           Dime Savings Bank, Brooklyn, New York - 10,379.92
           Seamans Bank for Savings, New York
                                                 --I
              "We,understand that the above accounts
           under the laws of New York are described as
           Totten Trusts.

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Honorable Robert S. Calvert, Page 2 (Opinion No. C-204    )


              "The attorney for the estate ., .~.~feeJs
           that by reason of incompetency,~tMe grantor
           lost powerto revoke; and for this.reason;
           the value of.~theseaccounts Is no;part of
           the taxable estate."

        Prior to the decision by the New York Court of Appeals
in the famous case of Matter of Totten, 179 N.Y. 112, 125,
71 N.E. 748 (1904), the law with respect to the effect of a
deposit in a savings bank in the name of the depositor "in trust"
for another had gone throu h a considerable evolution. See
1 Scott on Trusts (2nd Ed.7 481, 482, Sec. 58.2 and particularly
see the decision in Beaver v. Beaver, 117 N.Y. 421, 22 N.E. 940
(18891, 137 N.Y. 59, 32 N.E. 998 t1893), in which the court was
assuming that either an irrevocable trust or no trust at all was
created. The Totten case recognized that there was a third
possibility, namely a revocable trust, and that in the absence of
evidence that an irrevocable trust was intended or that no trust
at all was Intended, the inference arising from the form of the
deposit was that the depositor intended to create a trust reserv-
ing a power during his lifetime to deal with the deposit as he
saw fit.
        A long line of authorities is cited in 1 Scott on Trusts
(2nd Ed.) 494, Sec. 58.4, in which the New York courts have held
that where the depositor of a Totten trust becomes insane, his
guardian or committee cannot revoke the trust unless he can show
that the use of the deposit was necessary for the welfare of
the depositor. Thus, the courts consider the trusts as arising
immediately and not merely on the death of the depositor. The
foregoing authorities support the conclusion that the value of
the trust accounts were no part of the decedent's testamentary
estate. However, whether said accounts were part of the dece-
dent's taxable estate presents a different question.
        Article 14.01, Chapter 14, Title 122A, 20A, ,Vernon's
Annotated Texas Statutes, expressly taxes s,uccesslonsto prop-
erty other than that owned by the decedent at the time of his
death. The tax to such successions includes (1) property pass-
ing under a general power of appointment exercised by the dece-.
dent by will; (2) certain life insurance proceeds;,(3) transfers
made or intended to take effect in possessionor enjoyment after
death of grantor or donori and (4) transfers incontemplation of
death. The validity of succession taxes upon transfers of this
nature 'iswell settled. The latest expression of the Supreme
Court recognizing the imposition of inherit,ancetaxes upon such
types of transfers is Calvert v. Fort Worth National Bank, 163
Tex. 405, 356 S.W.2d 918 (19b2).

                            -988-
-.




     Honorable Robert S. Calvert, Page 3 (Opinion No, C-204   ,)


             The leading case in Texas dealing with transfers made
     or intended to take effect in possession or enjoyment after the
     death of the grantor or donor is succinotly summarized at page
     922 of the opinion in the Fort Worth National Bank case,
                   "In Bethea v. Sheppard, Tex.Civ.App.,
                143 S.W.2d 997 (wr. ref.); Henry Henke and
                his wife, Catherine Henke, executed a joint
                will and trust agreement which provided that
                the entire community estate sho~uldpass to
                a named trustee in the event the husband
                died first. Mrs. Henke and a daughter were
                to receive specified annual payments from
                the trust during the lifetime of the former,
                and the payments to the daughter were to be
                increased and continued for eight years after
                Mrs. Henke's death. At the end'of such
                period the corpus of the trust was to be
                distributed to the daughter if living; but
                if the daughter was not living at that time,
                the property was to be held in trust for an
                additional five years and then delivered to
                the daughter's children. The husband died
                first, and inheritance tax was paid only
                on his half of the community estate. Upon
                the subsequent death of Mrs. Henke it was
                held that the right of the daughter to
                succeed to her mother's community inter-
                est,was taxable as a transfer by Mrs. Henke
                made or intended to take effect in posses-
                sion or enjoyment after death."
             In the Bethea case, the interest of the daughter in the
     trust corpus wamingent       u on (1) her surviving both the
     mother and the father, and (2P that she survive the mother for
     a period of eight years. In the case presently under consi-
     deration, the beneficiary's interest In the Totten trusts were
     contingent 'upon (1) the depositor's failure to revoke during
     the period such bank trust accounts were subject to revocation,
     and (2) that she survive him. This she did; and therefore at
     his death, the deposits In these trust accounts ripened into
     full possession and enjoyment and are subject to inheritance
     taxes under the provisions of,the statute.

                          SUMMARY
                   Funds deposited in 'Totten trusts" under the laws
                                               i.nhcr3~tanoe',
             of;;New,York are subject 4o 'l'e%as'          taxe::


                                -989-
Honorable Robert S. Calvert, Page 4 (Opinion No. C-204      )


          upon the death of the donor, a Texas resident,
          despite the fact that the donor had lost the
          power of revocation by reason of insanity prior
          to his death.
                                Yours very truly,
                                WAGGONER CARR
                                Attorney General of Texas


                                BY




APPROVED:
OPINION COMMITTEE,
W. V. Geppert, Chairman
W. E.   Allen
James   .Strock
V. F.   Taylor
Kerns   Taylor
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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