Filed 12/23/19 (unmodified opinion attached)

                                CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                           DIVISION THREE


 STEPHANIE A. PLACENCIA,
 as Cotrustee, etc.,
                                                       G055631
     Plaintiff, Defendant and Respondent,
                                                       (Super. Ct. No. 30-2010-00356226)
         v.
                                                       ORDER MODYIFING OPINION
 LISA M. STRAZICICH, as Cotrustee,                     AND DENYING PETITION FOR
 etc.,                                                 REHEARING; NO CHANGE IN
                                                       JUDGMENT
     Plaintiff, Defendant and Appellant.


                 It is hereby ordered that the opinion filed on November 26, 2019, be
modified as follows:
                 On page 3, second full paragraph, delete the last three words at the end of
the last sentence, “is Ralph’s estate” and insert the following in their place, “was Ralph at
the time of his death, and thus the funds became part of his estate.”
                 On page 3, last paragraph, the second sentence beginning with “First, the
funds in the bank” is modified to read as follows:
                 “First, the funds in the bank account were part of Ralph’s estate, to be
distributed pursuant to his will, which has not been subject to a probate proceeding.”
                 On page 10, first full paragraph, second sentence beginning with “The
financial institution may pay the” is modified to read as follows:
              “The financial institution may pay the surviving party according to the
terms of the account, but the funds are part of the decedent’s estate, and thus the
surviving party holds the funds in constructive trust in favor of decedent’s heirs and must
account for the funds to the administrator of decedent’s estate.”
              On page 10, at the end of the last sentence of the first full paragraph delete
the phrase after the word “survivorship,” beginning with the words “but Ralph’s estate”
and replace it with the following:
              “but Lisa held the funds in constructive trust in favor of Ralph’s heirs.”
              On page 12, remove the italics from the subheading “A Will May Furnish
Evidence of Intent.”
              In the disposition on page 19, the first sentence beginning with “The
judgment is reversed” is modified as follows:
              “The judgment is reversed as to the ownership of the Franklin Fund account
(item 1 of the Final Judgment and Order on Petitions), and the court is instructed to enter
a new order declaring that the account became part of Ralph’s personal estate at the time
of his death, and thus Lisa holds the funds in constructive trust in favor of Ralph’s heirs,
which are to be determined in a probate proceeding.”
              There is no change in the judgment.
              The petition for rehearing is DENIED.



                                                  IKOLA, J.

WE CONCUR:


O’LEARY, P. J.


ARONSON, J.


                                              2
Filed 11/26/19 (unmodified opinion)




                                CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                          DIVISION THREE


 STEPHANIE A. PLACENCIA,
 as Cotrustee, etc.,
                                                     G055631
     Plaintiff, Defendant and Respondent,
                                                     (Super. Ct. No. 30-2010-00356226)
         v.
                                                     OPINION
 LISA M. STRAZICICH, as Cotrustee,
 etc.,

     Plaintiff, Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, David L.
Belz, Judge. Affirmed in part, reversed in part and remanded with directions.
                 Bradley R. Kirk & Associates and Bradley R. Kirk for Plaintiff, Defendant
and Appellant.
                 Bidna & Keys, Richard D. Keys and Howard M. Bidna for Plaintiff,
Defendant and Respondent.


                                      *         *          *
               Ralph Placencia died, leaving behind, among other things, a will, a trust,
and a joint bank account with an express right of survivorship in favor of one of his
daughters, appellant Lisa Strazicich. Prior to his death in 2009, Ralph left clear
statements in his will that he did not want Lisa to have the right of survivorship; he
wanted the proceeds of the account to go to his trust so it could benefit all three of his
           1
daughters. After his death, Lisa refused to relinquish the funds, and both she and
respondent Stephanie Placencia, another of Ralph’s daughters, both of whom were
cotrustees of Ralph’s trust, filed petitions in the probate court in their capacity as trustees
to determine the parties’ respective rights. The court determined that Ralph’s intent
should prevail and ordered Lisa to account for the funds to the trust. Lisa appealed.
               This appeal turns on a close reading of Probate Code sections 5302 and
5303, part of the California Multiple-Party Accounts Law (Prob. Code, § 5100 et seq.;
                                                                       2
CAMPAL), which governs rights of survivorship in joint accounts. Section 5302,
subdivision (a), provides that a joint account entails a right of survivorship “unless there
is clear and convincing evidence of a different intent.” The commentary to that section
makes clear that “the intention to negate survivorship may be shown to have existed after
the time of creation of the account.” (Cal. Law Revision Com. com., 53 West’s Ann.
Prob. Code (2009 ed.) foll. § 5302, p. 61, italics added.) On the other hand, section 5303
provides that “rights of survivorship are determined by the form of the account at the
death of a party.” (Id., subd. (a), italics added.) “Once established, the terms of a multi-
party account” including joint tenancies, “can be changed only by one of the following
methods” (id., subd. (b), italics added), which generally require a party to file paperwork
with the financial institution. (id., subd. (b)(2).) This case presents a difficult question:


1
             For purposes of clarity, we use first names because some of the individuals
involved share the same last name. No disrespect is intended.
2
               All statutory references are to the Probate Code.

                                               2
Ralph clearly expressed the intent to negate survivorship, but the form of the account
included a right of survivorship, and Ralph did not employ one of the methods listed in
section 5303 to change the terms of the account.
              We harmonize the two statutes by recognizing the explicit distinction
drawn in CAMPAL between the actual ownership of the beneficial interests in the
account, and the express terms of the account. The distinction allows the court to honor
the clear intent of the person who established the account while at the same time offering
protection to the financial institution which holds the depository account.
              The express terms of the account bear particular importance for the
financial institution that holds the account: CAMPAL contains a safe harbor that
immunizes a financial institution for payments it makes in compliance with the express
terms of the account. Nonetheless, CAMPAL recognizes that the beneficial interests in
the funds may differ from its express terms. Section 5302 concerns the rules to determine
the beneficial interests in the account; section 5303 concerns the express terms of the
account. Thus, we hold that the financial institution was correct to pay the funds to Lisa
pursuant to the express terms of the account, but the beneficial owner of those funds is
Ralph’s estate.
              We also conclude the court properly relied on Ralph’s will as evidence of
his intent, notwithstanding section 5302, subdivision (e), which provides that a right of
survivorship “cannot be changed by will.” That provision merely preserves the
nonprobate quality of survivorship rights. The court may still look to the will as an
expression of intent to negate survivorship.
              However, we reverse on two issues. First, the funds in the bank account
belong to Ralph’s estate, which has not been subject to a probate proceeding. It was error
for the court to award those funds directly to the trust in the absence of a probate
proceeding. Second, in light of that reversal, we remand for the trial court to reassess
Stephanie’s attorney fees.

                                               3
                                          FACTS


              In 1985, Ralph opened what the parties refer to as the Franklin Fund
account with an initial deposit of $140,000. Lisa was listed as a co-owner. Lisa’s
counsel states the paperwork submitted to open the account specifies that it is a joint
account with right of survivorship, though the copy in the record is almost entirely
illegible. Regardless, Stephanie stipulated that the account was opened as a joint tenancy
with right of survivorship. Moreover, an account statement from 2009 addressed to
Ralph and Lisa bore the acronym “JT WROS,” which appears to stand for joint tenants
with right of survivorship.
              Lisa, who was 23 years old at the time, had no involvement in opening the
fund. Ralph told Lisa that he put her on the Franklin Fund, but never had any other
discussion with her about it. Lisa never deposited money into the account, all of which,
to Lisa’s knowledge, came from Ralph. Lisa never withdrew money from the account
during Ralph’s lifetime. The account paid dividends, which Ralph took during his
lifetime.
              Ralph passed away in December 2009. In the months leading up to his
death, Ralph had a number of conversations with Henry Rivera, his brother-in-law, which
resulted in Henry assisting Ralph to prepare a will and trust, which Ralph executed
approximately 11 days before his death. His will left specific directions as to the
Franklin Fund account: “Remove Lisa Strazicich as sole beneficiary of my Franklin
Fund. I want the beneficiaries to be Lisa Strazicich, Stephanie A. Placencia and Tina R.
Placencia, my three daughters. [¶] I want the Franklin Fund to be placed into my trust
fund and then be used to pay off the mortgage of my home in Huntington Beach, CA.”
Henry confirmed that Ralph specifically made these requests in their conversations.




                                             4
              The trust specified that the res would be distributed evenly between Ralph’s
three daughters, Lisa, Stephanie, and Tina. It specifically disinherited his two sons (one
of whom passed away). The trust named Lisa and Stephanie as successor cotrustees after
Ralph’s death but specified that most important decisions would need Tina’s consent as
well. At the time of Ralph’s death, the trust contained three properties located in
California: a residence in Huntington Beach, raw land in Brea, and a residence in Long
Beach. Collectively they were valued at approximately $2,215,000.
              In January 2010, about a month after Ralph passed away, Lisa transferred
the assets of the Franklin Fund account to an account in her name.
              In March 2010, Mark Zavala, one of Ralph’s sons, filed a petition seeking
to invalidate the trust. Ultimately that petition was denied and the validity of the trust
confirmed.
              Meanwhile, the sisters’ relationship grew contentious; they could not reach
a consensus on the proper disposition of the trust assets. Lisa was performing most of the
work administering the trust. Stephanie testified that she had not performed any role as
trustee for the first four years after her father passed away. However, she was consulting
with Lisa and Tina on major decisions related to the trust.
              In September 2014, Stephanie filed the first of the underlying petitions in
her capacity as cotrustee of the trust. She sought an accounting, damages for breach of
fiduciary duty, and to remove Lisa as trustee. In December 2014, Lisa filed a petition in
her capacity as cotrustee, seeking, among other things, to remove Stephanie as cotrustee,
to recover various costs and fees associated with her work administering the trust, and
declaratory relief as to the status of the Franklin Fund account. By the time the petitions
were filed, most of the property in the trust had been sold and the funds distributed. Only
the Long Beach residence and a small bank account were still held in trust.




                                              5
              The court ultimately trifurcated the trial into three phases. The first phase
concerned most of the issues on the merits, including the Franklin Fund issue. The
second phase dealt with requests for trustee fees, attorney fees, and other litigation costs.
The third phase concerned an accounting of the Franklin Fund account.
              In the first phase the court concluded Ralph’s will, as confirmed by Henry’s
conversations with Ralph, amounted to clear and convincing evidence that Ralph
intended to revoke Lisa’s right of survivorship in the Franklin Fund account at the time of
his death. Consequently, the court ordered Lisa to account for the proceeds of the
Franklin Fund account, with Lisa’s share in the trust to be reduced by the amount she
owes the trust from the Franklin Fund account.
              Also in the first phase, the court rejected several of Stephanie’s claims for
relief, including: her request to remove Lisa as trustee, her claim that Lisa breached her
fiduciary duty by failing to rent the Long Beach residence, her claim for double damages
under section 859 for Lisa’s refusal to turn over the Franklin Fund account, and her claim
that Lisa violated other fiduciary duties.
              As to Lisa’s other claims, the court granted her request to sell the Long
Beach property and distribute the proceeds, granted her request to remove Stephanie as
trustee, and rejected her claim of malfeasance against Stephanie.
              In the second phase, the court first concluded that Stephanie was entitled to
attorney fees. In reaching that conclusion, the court found that Stephanie was acting on
behalf of the trust as a trustee, that she prevailed on the Franklin Fund issue, and that the
fees she incurred were expended for the benefit of the trust. After reducing what the
court found to be excessive hours spent, the court awarded Stephanie $138,580 in fees,
and $19,236.46 in costs.




                                              6
              Lisa also sought attorney fees, which the court granted in part and denied in
part. The court denied Lisa fees to the extent they were incurred in connection with the
Franklin Fund issue, but granted her fees in connection with her successful efforts to
remove Stephanie as trustee and to sell the Long Beach property. This resulted in a fee
award of $95,284 to Lisa, which she does not challenge on appeal.
              However, Lisa does challenge the amount of trustee fees the court awarded
her. The court awarded her $38,850 for the period of 2009-2017. We discuss the court’s
ruling in more detail below.
              In the third phase, the accounting of the Franklin Fund account, the court
found Lisa held a total of $221,006.44 traceable to the Franklin Fund. Lisa appealed
from the final judgment that incorporated the court’s rulings from all three phases.


                                       DISCUSSION


The Franklin Fund Account Does Not Belong to Lisa
              Lisa first contends the court erred by denying her right of survivorship to
the Franklin Fund account. We disagree. In reaching the conclusion that Lisa is not
entitled to the funds, we address two aspects of the statutory scheme that, at first blush,
seem to support Lisa’s position: section 5303’s restrictions on the methods of altering the
terms of a multi-party account, and section 5302, subdivision (e)’s restriction on the use
of a will to change a right of survivorship.


              Sections 5302 and 5303
              CAMPAL provides a roadmap for joint accounts, and rights of survivorship
in particular. Section 5302, subdivision (a) provides, “Sums remaining on deposit at the
death of a party to a joint account belong to the surviving party or parties as against the
estate of the decedent unless there is clear and convincing evidence of a different intent.”

                                               7
(Italics added.) “This section is the same in substance as Section 6-104 of the Uniform
Probate Code (1987), except that section 5302 omits the UPC requirement that the intent
that there be no rights of survivorship exist at the time the account is created.” (Cal. Law
Revision Com. com., 53 Wests Ann. Prob. Code, supra, foll. § 5302, p. 61, italics added.)
Section 5302 omits the italicized language. The commentary to section 5302 draws the
logical conclusion that, “under Section 5302, the intention to negate survivorship may be
shown to have existed after the time of the creation of the account.” (Cal. Law Revision
Com. com., 53 Wests Ann. Prob. Code, supra, foll. § 5302, p. 61.)
              Section 5303, on the other hand, contains the following restrictions: “The
provisions of Section 5302 as to rights of survivorship are determined by the form of the
account at the death of a party.” (Id., subd. (a).) “Once established, the terms of a
multiple-party account can be changed only by any of the following methods: [¶] (1)
Closing the account and reopening it under different terms. [¶] (2) Presenting to the
financial institution a modification agreement that is signed by all parties with a present
right of withdrawal. If the financial institution has a form for this purpose, it may require
use of the form. [¶] (3) If the provisions of the terms of the account or deposit
agreement provide a method of modification of the terms of the account, complying with
those provisions. [¶] (4) As provided in subdivision (c) of Section 5405 [payment by
the financial institution in accordance with written instructions from a party].” (Id., subd.
(b) (1)-(4), italics added.) Section 5303, subdivision (c) further provides that withdrawal
of funds from the account eliminates rights of survivorship as to the funds withdrawn.
              The question we confront is: What happens when the form of the account
includes a right of survivorship, which was not altered by any of the methods listed in
section 5303, but the decedent expressed an intent to negate survivorship before passing?
The key to harmonizing these statutes lies in the distinction between the express terms of
the account and the beneficial interests in the account.



                                              8
               This distinction is explicitly set forth in section 5201, which provides, “(a)
The provisions of Chapter 3 (commencing with Section 5301) concerning beneficial
ownership as between parties . . . are relevant only to controversies between these
persons and their creditors and other successors, and have no bearing on the power of
withdrawal of these persons as determined by the terms of account contracts. [¶] (b) The
provisions of Chapter 4 (commencing with Section 5401) govern the liability of financial
institutions who make payments pursuant to that chapter.” (Id., italics added.) Sections
5405 and 5402, in turn, provide a safe harbor for financial institutions that pay according
to the terms of the account, irrespective of any beneficial ownership interests: “Payment
made pursuant to Section . . . 5402 . . . discharges the financial institution from all claims
for amounts so paid whether or not the payment is consistent with the beneficial
ownership of the account as between parties.” (§ 5405, subd. (a), italics added.) Section
5402 provides, “Any sums in a joint account may be paid, on request and according to its
terms, to any party . . . .”
               The distinction between the terms of an account and the ownership of
beneficial interests is key to interpreting section 5303 because the principal restriction in
section 5303 is that “the terms of a multiple-party account can be changed only by”
utilizing one of the listed methods. (Id., subd. (b), italics added.) Section 5302, by
contrast, concerns the beneficial interests as between the parties to the account: “Sums
remaining on deposit at the death of a party to a joint account belong to the surviving
party or parties as against the estate of the decedent unless there is clear and convincing
evidence of a different intent.” (Id., subd. (a), italics added.) Further evidence that
section 5302, subdivision (a), concerns beneficial interests appears a few lines down in
subdivision (d). Subdivision (a) concerns joint accounts, subdivision (b) concerns pay on
                                                         3
death accounts, subdivision (c) concerns Totten trusts, and subdivision (d) contains the
3
            “The term Totten trust describes a bank account opened by a depositor in
his own name as trustee for another person where the depositor reserves the power to

                                              9
following catchall: “In other cases, the death of any party to a multiparty account has no
effect on beneficial ownership of the account other than to transfer the rights of the
decedent as part of the decedent’s estate.” (Italics added.) The fact that the catchall is
explicitly framed in terms of the ownership of beneficial interests strongly suggests that
subdivisions (a) through (c) also concern the ownership of beneficial interests.
              The answer to the question we posed above, therefore, is this: The
financial institution may pay the surviving party according to the terms of the account,
but the decedent’s estate has a claim for the funds against the surviving party. This result
achieves the dual aims of (1) honoring the actual intent of the decedent as to the
disposition of his assets, and (2) ensuring the financial institution has an ascertainable,
objective basis upon which to pay out the funds in a manner that does not subject it to
liability. Here, it was proper for the financial institution to pay out the funds to Lisa, as
the terms of the account listed her as having a right of survivorship, but Ralph’s estate
had a valid claim for the funds against Lisa.
              The court in Araiza v. Younkin (2010) 188 Cal.App.4th 1120 (Araiza)
reached the same result. There, the decedent had established a checking and savings
account naming her stepdaughter as the beneficiary of the account (though without any
right of withdrawal during the decedent’s lifetime). (Id. at p. 1123.) Four years later, the
decedent established a living trust, expressly transferred the savings account into the
trust, and provided that the savings account was to go to someone else upon decedent’s
death. (Ibid.) Upon decedent’s death, the trial court awarded the account to the trust
beneficiary. (Id. at pp. 1123-1124.) The stepdaughter appealed, contending that the




withdraw the funds during his lifetime. If the depositor has not revoked the trust then,
upon his death, any balance left in the account is payable to the beneficiary.” (Estate of
Fisher (1988) 198 Cal.App.3d 418, 424.) A Totten trust is a type of multi-party account
governed by CAMPAL. (§ 5132.)

                                              10
account was hers because the decedent had not changed the terms of the account pursuant
to section 5303. (Araiza, at p. 1124.)
              The Court of Appeal treated the account as a Totten Trust, which is
governed by essentially the same rules as a joint account. (Araiza, supra, 188
Cal.App.4th at pp. 1124-1125; § 5302, subd. (c).) The court rejected the stepdaughter’s
argument concerning section 5303, stating, “This narrow reading of the statute, however,
fails to harmonize it with section 5302. Section 5302, subdivision (c)(2) provides that
sums remaining on deposit in a Totten trust after the death of the sole trustee belong to
the person named as beneficiary, ‘unless there is clear and convincing evidence of a
different intent . . . .’ Here, although the signature card for the savings account named
[the stepdaughter] as the beneficiary, there is clear and convincing evidence that [the
decedent] had a ‘different intent’ at the time of her death. She established a living trust
that expressly stated her intention to give the savings account to [the trust beneficiary].
The trial court properly relied on the living trust to find that [the decedent] intended to
change the beneficiary of her Totten trust from [the stepdaughter] to [the trust
beneficiary].” (Araiza, at pp. 1125-1126.)
              The result in Araiza is consistent with our analysis here. As between the
                                                          4
parties to the account, the decedent’s intent prevails.




4
               In allowing rights of survivorship to be negated after the creation of the
account, our Legislature chose to treat rights of survivorship in much the same way
Totten trusts traditionally operated, which could “‘be revoked by the depositor at any
time during his lifetime, by a manifestation of his intention to revoke the trust. No
particular formalities are necessary to manifest such an intention.’” (Brucks v. Home
Federal S. & L. Assn. (1951) 36 Cal.2d 845, 851.)

                                              11
              A Will May Furnish Evidence of Intent
              But can a will supply evidence of the intent to negate survivorship?
Section 5302, subdivision (e), states, “A right of survivorship . . . cannot be changed by
will.” According to Lisa, if a will could furnish evidence of intent, then a will could
effectively change a right of survivorship, nullifying this provision. We disagree.
              The purpose of section 5302, subdivision (e), is to preserve the nonprobate
quality of rights of survivorship, not to create a firewall between a will and a right of
survivorship. Section 5304 makes this policy explicit: “Any transfers resulting from the
application of Section 5302 are effective by reason of the account contracts involved and
this part and are not to be considered as testamentary.” (Italics added.) The California
Law Revision Commission commentary to that section explains the thinking behind this
policy: It “avoids the need for a probate proceeding to accomplish a transfer.” (Cal. Law
Revision Com. com., 53 West’s Ann. Prob. Code, supra, foll. § 5304, p. 67.) The
declaration that a right of survivorship cannot be changed by a will in section 5302,
subdivision (e), simply reflects the policy of section 5304. Survivorship rights represent
a nonprobate transfer and thus, by definition, are not determined by a will.
              But in assessing the decedent’s intent, the court should consider all
evidence, including evidence of intent expressed in connection with executing a will. To
ignore the will would generate artificial results contrary to the decedent’s actual intent.
This result would be inconsistent with the modern trend toward favoring the decedent’s
intent over formalities. In Estate of Duke (2015) 61 Cal.4th 871, for example, our high
court abolished the longstanding rule that extrinsic evidence is inadmissible to reform an
unambiguous will. (Id. at p. 875.) In reaching that result, the court relied on the principle
that “the paramount concern in construing a will is to determine the subjective intent of
the testator [citations].” (Id. at p. 890.) Courts have expressed similar sentiments in the
context of trusts. (See Morgan v. Superior Court (2018) 23 Cal.App.5th 1026, 1039
[describing the testator’s intent as “the all controlling factor”].) Here, too, our ultimate

                                              12
aim is to ascertain the Ralph’s subjective intent as to the disposition of his assets. To that
end, it would be counterproductive to blindfold the trial court to expressions of intent
found in a will.
              Although case law on this issue is sparse, we find support for our
conclusion in Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882 (Gardenhire),
which addressed an analogous situation. There, the issue was whether a will could
revoke a trust notwithstanding section 15401, subdivision (a)(2), which provides that a
revocable trust may be revoked “[b]y a writing (other than a will) signed by the settlor
and delivered to the trustee . . . .” (Gardenhire, at p. 887, italics added.) The trust
permitted revocation “by written notice signed by the Trustor and delivered to the
Trustee.” (Id. at p. 886.)
              The Gardenhire court held that, although a will could not revoke the trust
as a testamentary act, it could, nevertheless, fulfill the more mundane role of providing
written notice. The court’s colorful analysis is worth quoting in full: “[A]lthough the
dispositional provisions of a will remain inoperative until the trustor’s death, it does not
necessarily follow that the will cannot separately and effectively have a present and
immediate effect upon delivery, such as notice of intent to revoke. For example, suppose
a person writes a will and in it states that he loathes his brother and bequeaths to him a
bag of garbage. He then gives the will to his brother. Although the bequest is legally
inoperative, the will nevertheless immediately and effectively communicates the person’s
feelings to his brother. We perceive no logical reason why a will similarly cannot
provide immediate and present notice of a trustor’s intent to revoke a trust. Indeed,
where a trustor unambiguously manifests an intent to revoke, amend, or alter a trust in a
will, and where the trustor delivers it to the trustee, who reads it, we believe the trustor’s
intent must control and be given effect.” (Id. at p. 891.)




                                              13
              Likewise here, while a will cannot change a right of survivorship as a
testamentary act, it may, nonetheless, provide evidence of the account holder’s intent
during his lifetime.
              Given the evidence of Ralph’s will, it is beyond dispute that, during his life,
he intended to negate Lisa’s right of survivorship. And it does not matter that Ralph
intended to set up a joint account with right of survivorship when the account was
created. As we discussed above, section 5302 was specifically crafted to allow a party’s
intent after account creation to negate a right of survivorship. Ralph’s intent, expressed
through his will, did so here.


The Franklin Fund Account is Subject to a Probate Proceeding
              Having negated Lisa’s right of survivorship, the question then becomes:
What happens to Ralph’s interest in the account? The court essentially ordered Lisa to
transfer funds directly to the trust. That disposition of the account funds, however, is
principally found in Ralph’s will, which was never admitted to probate. And in a multi-
party account with no right of survivorship, “the death of any party to a multiparty
account has no effect on beneficial ownership of the account other than to transfer the
rights of the decedent as part of the decedent’s estate.” (§ 5302, subd. (d).) As the
commentary to section 5302 explains, “The rule stated in subdivision (d) applies to an
account where there is clear and convincing evidence of an intent not to have a right of
survivorship . . . .” (Cal. Law Revision Com. com., 53 West’s Ann. Prob. Code, supra,
foll. § 5302, p. 62.) Arguably, therefore, upon Ralph’s death, his interest in the Franklin
                                                                                        5
Fund account became part of his personal estate, which would need to be probated.

5
               Ralph’s interest consisted of the entire account because all of the money in
the account came from him during his lifetime. Probate Code section 5301, subdivision
(a) provides, “An account belongs, during the lifetime of all parties, to the parties in
proportion to the net contributions by each, unless there is clear and convincing evidence
of a different intent.” The California Law Revision Commission commentary explains

                                             14
              Given this possibility, we invited the parties to provide supplemental letter
briefs on the following question: “Assuming for purposes of your analysis that the court
correctly determined that the will provided clear and convincing evidence that the
decedent intended to revoke Lisa M. Strazicich’s right of survivorship in the Franklin
Fund account: Did the court err in ordering distribution of the account directly to the
trust, instead of through a probate of the decedent’s estate, to be thereafter distributed
either by will or by intestacy? (See Prob. Code, § 5302(d), subd. (d).)” Lisa and
Stephanie both submitted letter briefs. Lisa contends that if the funds are not to go to her
by way of survivorship, then probate is the only other possibility.
              Stephanie, however, contends that Ralph’s oral statements and written
intent in his will operated to transfer ownership of the Franklin Fund account to his trust
prior to his death. Her argument begins with the language of the trust, which allows
property to be added without the need for a writing: “Additional property may be added
to the trust estate at any time by the Trustor . . . by inter vivos or testamentary transfer.
Such additions and title to any property so added may be, but need not be, evidenced
by . . . writings transferring the property to the Trustee.” (Italics added.) Moreover, by
statute, oral trusts are permitted, provided the oral trust is corroborated and proven by
clear and convincing evidence: “(a) The existence and terms of an oral trust of personal
property may be established only by clear and convincing evidence. [¶] (b) The oral
declaration of the settlor, standing alone, is not sufficient evidence of the creation of a
trust of personal property.” (§ 15207, subds. (a), (b).) The California Law Revision


this is a change from the usual joint tenancy laws: “The presumption under subdivision
(a) that an account belongs to the parties during their lifetimes in proportion to the net
contributions by each changed the rule under former law. Under former law, if the joint
account provided for rights of survivorship, the account was presumed to be a joint
tenancy and each joint tenant was presumed to have an equal interest in the
account.” (Cal. Law Revision Com. com., 53 West’s Prob. Code, supra, foll. § 5301,
p. 58.) There is nothing in the record that evidences an intent contrary to the rule that,
during Ralph’s lifetime, ownership was determined by net contribution.

                                              15
Commission commentary to section 15207 states: “Under subdivision (b), a delivery of
personal property to another person accompanied by an oral declaration by the transferor
that the transferee holds it in trust for a beneficiary creates a valid oral trust. Constructive
delivery, such as by earmarking property or recording it in the name of the transferee, is
also sufficient to comply with subdivision (b).” (Cal. Law Revision Com. com., 54
West’s Ann. Prob. Code (1991 ed.) foll. § 15207, p. 542.)
              The problem is, Ralph never did any of that. Indeed, there is not even a
mention of an oral trust in our record, or an oral transfer to the trustee, much less
corroborating evidence such as physical delivery or earmarking. Instead, in a will, in a
section entitled “I hereby make the following specific bequests” (italics added), Ralph
                                           6
simply bequeathed the funds to his trust. In the absence of any transfer to Ralph’s trust
prior to his death, the Franklin Fund became part of Ralph’s estate (§ 5302, subd. (d)) and
is, therefore, subject to probate administration (§ 7001).
              And there may well be live issues in any probate proceeding. We note that
Lisa’s petition originally contained a cause of action to invalidate the will, which she
abandoned before trial, but which raises the specter of a will contest. Also, one of
Ralph’s sons was disinherited, so he clearly has an incentive to invalidate the will.
Accordingly, it would be premature for the court to distribute Ralph’s personal estate at
this time. (See Estate of Hart (1957) 151 Cal.App.2d 271, 280-281 [where title vests
subject to the administration of the estate, the right to possession is deferred until the
distribution of the estate and is contingent upon the will not being set aside by a contest
after probate].) In doing so, the court erred.




6
                There is some ambiguity as to whether the funds were bequeathed directly
to the daughters or to the trust. We express no opinion on the matter. The parties are free
to litigate that issue in any future proceeding.

                                               16
Fees and Costs
              Lisa assigns two errors concerning fees and costs: that she was entitled to
more trustee fees than the court awarded, and that Stephanie was not entitled to attorney
fees paid by the trust.


              Trustee Fees
              Section 15680 provides that where, as here, the trust provides for a trustee’s
compensation, “the trustee is entitled to be compensated in accordance with the trust
instrument.” (Id., subd. (a).) And where, as here, “the trust instrument does not specify
the trustee’s compensation, the trustee is entitled to reasonable compensation under the
circumstances.” (§ 15681.) “‘Allowance of compensation rests in the sound discretion
of the trial court, whose ruling will not be disturbed on appeal in absence of a manifest
showing of abuse.’” (Estate of Gump (1991) 1 Cal.App.4th 582, 597.)
              Lisa sought trustee fees of $186,900, which was calculated as 1,068 hours
spent between 2010 and 2017 at a rate of $175 per hour. The court determined her
reasonable rate was $75 per hour, that the amount of hours she claimed was excessive,
and that her time sheets were too vague to demonstrate how the time she invested
benefited the trust. In its statement of decision, the court awarded Lisa $40,893.75 “for
the period of 2009 to 2017.” For reasons that are not clear in the record, in the final
judgment the court reduced that amount to $38,850.
              Lisa contends the court abused its discretion by awarding her zero fees
from 2015 to 2017. The court never explicitly denied her fees for the period of 2015 to
2017, but she infers the court did so by noting that she claimed exactly $40,893.75 for the
time period of December 2009 through November 2014. And since that is the exact
number the court awarded (initially), the court must have only been compensating Lisa
through November 2014.



                                             17
              But that is not what the court’s statement of decision says. It says the court
awarded $40,893.75 “for the period of 2009 to 2017.” We will not infer from the amount
the court chose that it was awarding fees for a period less than what it said. We draw all
presumptions in favor of the court’s ruling, not against it. The court apparently believed
that the amount Lisa claimed for a lesser period was a reasonable amount for the entire
period. Lisa has not challenged that ruling as an abuse of discretion.


              Stephanie’s Attorney Fees
              In awarding Stephanie her fees, the court first rendered three predicate
findings: that Stephanie was acting in her capacity as trustee, that Stephanie prevailed on
the Franklin Fund claim (and no other), and that the fees pursuing the Franklin Fund issue
were expended for the benefit of the trust. Lisa challenges all three predicates.
              Rather than resolve this issue, we deem it prudent to remand the matter to
the trial court for another hearing on Stephanie’s attorney fees. Her prevailing on the
Franklin Fund issue was an essential predicate for awarding her fees. At the time the
court made that order, Stephanie had clearly prevailed: the trust was being enriched by
over $200,000. Our ruling here, however, potentially undermines that conclusion. It is
less clear that the trust will ultimately get that amount. On the other hand, Stephanie was
correct in asserting that Lisa did not have a right of survivorship. In view of these
circumstances, the court should have an opportunity to exercise its discretion in the first
instance as to whether, and in what amount, Stephanie is entitled to fees. We express no
opinion on the matter.




                                             18
                                      DISPOSITION


              The judgment is reversed as to the ownership of the Franklin Fund account
(item 1 of the Final Judgment and Order on Petitions), and the court is instructed to enter
a new order declaring Ralph’s personal estate to be the beneficial owner of the proceeds
of the Franklin Fund account. The judgment is also reversed as to Stephanie’s attorney
fees (item 4 of the Final Judgment and Order on Petitions). The matter is remanded on
those issues for further proceedings consistent with this opinion. In all other respects, the
judgment is affirmed. Stephanie shall recover costs incurred on appeal.



                                                  IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




                                             19
