BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 1624|
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                                    CONSENT


          Bill No:  AB 1624
          Author:   Gatto (D)
          Amended:  7/6/12 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  4-0, 7/3/12
          AYES:  Evans, Blakeslee, Corbett, Leno
          NO VOTE RECORDED:  Harman
           
          ASSEMBLY FLOOR  :  69-0, 3/22/12 - See last page for vote


           SUBJECT  :    Multiple-party accounts

           SOURCE  :     Author


           DIGEST  :    This bill provides that funds in a 
          multiple-party account belong to each party to the account 
          in proportion to the net contributions of each party, and 
          any right of survivorship to the funds is eliminated with 
          respect to the funds withdrawn to the extent of the 
          withdrawing party's net contribution to the account.  This 
          bill also clarifies the ownership interest of parties in 
          withdrawals made in excess of a withdrawing party's net 
          contribution.  This bill provides that, when a withdrawing 
          party uses the funds for the benefit of another party, and 
          that party, or his/her conservator, guardian, or agent, 
          seeks to recover the amount withdrawn in excess of the 
          withdrawing party's contribution, a court can, at its 
          discretion and in the interest of justice, reduce the other 
          party's ownership interest in the amount withdrawn.
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           ANALYSIS  :    Existing law, the California Multiple-Party 
          Accounts Law (CAM-PAL), establishes provisions governing 
          the ownership of a multiple-party account in a financial 
          institution, rights of creditors to the funds on account, 
          and provides simplified procedures for transferring funds 
          following the death of a depositor.  (Probate Code (PROB) 
          Section 5100 et seq.) 

          Existing law provides that a "multiple-party account" means 
          a joint account, a pay on death (P.O.D.) account, or a 
          Totten trust account.  (PROB Section 5132)

          Existing law defines "joint account" to mean an account 
          payable on request to one or more of two or more parties 
          whether or not mention is made of any right of 
          survivorship.  (PROB Section 5130)

          Existing law defines "P.O.D. account" to mean (1) an 
          account payable on request to one person during the 
          person's lifetime and on the person's death to one or more 
          P.O.D. payees; or (2) an account payable on request to one 
          or more persons during their lifetimes and on the death of 
          all of them to one or more P.O.D. payees.  (PROB Section 
          5140)

          Existing law defines "Totten trust account" to mean an 
          account in the name of one or more parties as trustee for 
          one or more beneficiaries where the relationship is 
          established by the form of the account and the deposit 
          agreement with the financial institution and there is no 
          subject of the trust other than the sums on deposit in the 
          account.  (PROB Section 80)

          Existing law provides that the "net contribution" of a 
          party to an account at any given time is the sum of all of 
          the following:

          1. All deposits thereto made by or for the party, less all 
             withdrawals made by or for the party that have not been 
             paid to or applied to the use of any other party;

          2. A pro rata share of any interest or dividends earned, 
             whether or not included in the current balance; and







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          3. Any proceeds of deposit life insurance added to the 
             account by reason of the death of the party whose net 
             contribution is in question.  (PROB Section 5134(a))

          Existing law provides that, in the absence of proof 
          otherwise, only parties who have a present right of 
          withdrawal shall be considered as having a net 
          contribution, and the net contribution of each of the 
          parties having a present right of withdrawal is deemed to 
          be an equal amount.  (PROB Section 5134(b))

          Existing law provides that a multiple party account 
          belongs, during the lifetime of all parties, to the parties 
          in proportion to the net contributions by each to the sums 
          on deposit, unless there is clear and convincing evidence 
          of a different intent.  Existing law provides that, for a 
          P.O.D. account, the P.O.D. payee has no rights to the sums 
          on deposit during the lifetime of any party, unless there 
          is clear and convincing evidence of a different intent.  
          Existing law also provides that, for a Totten trust 
          account, the beneficiary has no rights to the sums on 
          deposit during the lifetime of any party, unless there is 
          clear and convincing evidence of a different intent.  If 
          there is an irrevocable trust, the account belongs 
          beneficially to the beneficiary.  (PROB Section 5301)

          This bill provides that a multiple party 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.

          This bill provides that, if a party makes an excess 
          withdrawal from an account, the other parties to the 
          account shall have an ownership interest in the excess 
          withdrawal in proportion to the net contributions of each 
          to the amount on deposit in the account immediately 
          following the excess withdrawal, unless there is clear and 
          convincing evidence of a contrary agreement between the 
          parties.  This bill defines "excess withdrawal" as the 
          amount of a party's withdrawal that exceeds that party's 
          net contribution on deposit in the account immediately 
          preceding the withdrawal.








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          This bill provides that only a living party, or a 
          conservator, guardian, or agent acting on behalf of a 
          living party, shall be permitted to make a claim to recover 
          the living party's ownership interest in an excess 
          withdrawal.  This bill authorizes a court, at its 
          discretion, and in the interest of justice, to reduce any 
          recovery from an excess withdrawal to reflect funds 
          withdrawn and applied solely for the benefit of the 
          claiming party.

          Existing law provides that 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.  If there are two or more surviving 
          parties, their respective ownerships during lifetime are in 
          proportion to their previous ownership interests augmented 
          by an equal share for each survivor of any interest the 
          decedent may have owned in the account immediately before 
          the decedent's death; and the right of survivorship 
          continues between the surviving parties.  (PROB Section 
          5302(a).)  Existing law provides additional provisions on 
          right rights to sums remaining on deposit for P.O.D. 
          accounts and Totten trust accounts.  (PROB Section 5302(b), 
          (c))

          Existing law provides that, during the lifetime of a party, 
          the terms of the account may be changed to eliminate or to 
          add rights of survivorship.   Withdrawal of funds from the 
          account by a party with a present right of withdrawal 
          during the lifetime of a party also eliminates rights of 
          survivorship upon the death of that party with respect to 
          the funds withdrawn.  (PROB Section 5303(c))

          This bill provides that withdrawal of funds from the 
          account by a party would eliminate rights of survivorship 
          with respect to the funds withdrawn to the extent of the 
          withdrawing party's net contribution to the account.

          Existing law provides that, with respect to multiple-party 
          accounts, a financial institution is not required to do any 
          of the following:

           inquire as to the source of funds received for deposit to 







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            a multiple-party account, or inquire as to the proposed 
            application of any sum withdrawn from an account, for 
            purposes of establishing net contributions;

           determine any party's net contribution; or

           limit withdrawals or any other use of an account based on 
            the net contribution of any party, whether or not the 
            financial institution has actual knowledge of each 
            party's contribution.  (PROB Section 5401(c))

          This bill provides clarifying cross-references to this 
          provision.

           Background
           
          In 1983, the California Law Revision Commission (CLRC) 
          recommended the adoption of certain provisions of the 
          Uniform Probate Code regarding interests of multiple 
          parties to funds held in one bank account.  (Recommendation 
          Relating to Nonprobate Transfers, 16 Cal. Law Revision Com. 
          Rep. (1982) p. 126.)  CLRC's recommendation was enacted, 
          which created the California Multiple-Party Accounts Law 
          (CAM-PAL) and applied to interests of multiple parties in 
          funds held in credit union and industrial loan company 
          accounts.  In 1989, CLRC recommended amendments to CAM-PAL, 
          among other things, to extend its application to banks and 
          savings and loan associations and to clarify survivorship 
          rights of the parties to a multiple-party account.  
          (Recommendation Relating to Multiple-Party Accounts in 
          Financial Institutions (Feb. 1989) 20 Cal. Law Revision 
          Com. Rep. (1990) p. 95.)  The Legislature enacted the 
          CLRC's proposal under SB 985 (Beverly, Chapter 397, 
          Statutes of 1989), which was subsequently recast under AB 
          759 (Friedman, Chapter 79, Statutes of 1990) when the 
          Probate Code was revised.

          Later, the First District Court of Appeal ruled, in Lee v. 
          Yang (2003) 111 Cal.App.4th 481, that funds in a 
          multiple-party account can be withdrawn by any party to the 
          account, regardless of which party deposited the funds.  
          The CLRC recommended clarification of CAM-PAL "to make 
          clear that ownership of funds withdrawn from a joint 
          account is determined by the net contributions of the 







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          parties to the account, thereby reversing the rule of Lee 
          v. Yang."  (Recommendation:  Ownership of Amounts Withdrawn 
          from Joint Account (June 2004) 34 Cal. Law Revision Com. 
          Rep. (2004) p. 203)

          This bill is similar to AB 69 (Harman, 2005) and SB 273 
          (Harman, 2011), both of which would have adopted the CLRC's 
          2004 recommendations to overturn Lee v. Yang, but both 
          bills died in the Senate Judiciary Committee without 
          hearing.  Unlike the prior bills, this bill would clarify 
          the ownership interest of parties in another party's excess 
          withdrawals and provide protection for a party who 
          withdraws money on behalf of another party to the account.

          This bill returns California law to its original intent 
          prior to the holding in Lee v. Yang (2003) 111 Cal.App.4th 
          481 that money in a multiple-party account belonged to each 
          party in proportion to the net contributions by each party 
          to the sums on deposit.  Essentially, this bill provides 
          that, when non-married individuals have a joint account, 
          each party owns the amount he or she has deposited into the 
          account, unless otherwise agreed by the parties.  The 
          author argues that the Lee v. Yang decision created a "race 
          to the bank," where if one party falls out of favor with 
          another party, the first party could withdraw all funds in 
          the account, even though they did not deposit anything.

          In Lee v. Yang, plaintiff Holden Lee sued his ex-fiancé, 
          defendant Janet Yang, for recovery of his money that she 
          withdrew from their multiple-party account.  During Yang's 
          engagement to Lee, Yang discovered Lee had been involved in 
          same-sex relationships.  The engagement was broken off, and 
          Yang withdrew over $340,000 of comingled funds from the 
          multiple-party account and closed out the account.  The 
          court held there was no agreement between the parties 
          restricting Yang or the amount she could withdraw from the 
          account, and "Ýt]he inescapable inference is that likewise 
          there was no restriction on the use of the withdrawn funds 
          and hence no legal obligation to account for or return 
          them.  By virtue of ÝYang's] unrestricted right to withdraw 
          and apply funds to her own benefit, the ownership of the 
          funds passed to her by way of gift. ?"  (Lee v. Yang (2003) 
          111 Cal.App.4th at p. 493; emphasis in original.)  The 
          dissent argued that the legislative history of 







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          multiple-party account ownership showed that the intent of 
          CAM-PAL was for parties to retain their ownership interests 
          in their deposited funds, according to their net 
          contribution, and the majority's opinion, by creating a 
          presumption that a party was not entitled to recoup any of 
          his or her own funds, thwarted the basic purpose of 
          CAM-PAL.  (Id. at p. 496.)

          Following the Lee v. Yang decision, the CLRC issued a 
          recommendation that CAM-PAL be clarified to provide that 
          ownership of funds withdrawn from a multiple-party account 
          is based upon the proportionate contributions of the 
          parties to the account.  (Recommendation:  Ownership of 
          Amounts Withdrawn from Joint Account (June 2004) 34 Cal. 
          Law Revision Com. Rep. (2004) p. 203.)  The CLRC argued 
          that "Lee v. Yang was incorrectly decided.  The effect of 
          the decision is the opposite of that intended by the law.  
          Under prior law, the depositor was presumed to own an equal 
          share of funds withdrawn from a joint account.  The 
          Multiple-Party Accounts law presumes the depositor owns 
          funds withdrawn based on the depositor's net contributions. 
           Lee v. Yang, however, presumes the depositor owns none of 
          the funds withdrawn."  (Recommendation:  Ownership of 
          Amounts Withdrawn from Joint Account (June 2004) 34 Cal. 
          Law Revision Com. Rep. (2004) p. 208)  

          The CLRC notes that the majority opinion in Lee v. Yang 
          based the decision on a misconstruction of the federal gift 
          tax rule, but "Ýa]s the dissent in Lee v. Yang rightly 
          points out, the court's reliance on federal estate tax law 
          for its answer to the state property law issue begs the 
          question. ? When confronted with the issue of 
          overwithdrawal by a party to a joint account, the courts of 
          other states that have enacted the uniform act have 
          invariably concluded that the withdrawing party's ownership 
          right must be limited to the party's net contribution."  
          (Id. at pp. 208-209.)  This bill adopts the CLRC's 
          recommendation and clarify that a multiple-party account 
          belongs, during the lifetime of all parties, to the parties 
          in proportion to the net contributions by each, instead of 
          by each to the sums on deposit.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No







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           SUPPORT  :   (Verified  7/6/12)

          AARP California
          Conference of California Bar Associations
          Executive Committee of the Trusts & Estates Section of the 
            State Bar of California
          Professional Fiduciary Association of California

           ARGUMENTS IN SUPPORT  :    The author writes:

            Lee v. Yang created a presumption that whoever withdraws 
            the money gets to keep it unless the account holder who 
            contributed the funds can prove that there was an actual 
            agreement to the contrary.  Ordinary people have no way 
            to know of the need for such an agreement.

            Lee vs. Yang particularly places the elderly at risk, 
            because elders commonly use these accounts to enable a 
            relative (often one of the depositor's children) to 
            assist with paying bills or to avoid conservatorship or 
            probate administration of their assets.  When making 
            these arrangements, the elderly generally do not expect 
            or intend that they are making a present gift of those 
            funds; however, that is exactly what Lee v. Yang holds 
            should a person added to a Multiple-Party Account to 
            assist an elderly friend or relative decide to take the 
            monies. While we all hope that family members will 
            provide honest assistance to their elderly relatives, it 
            is a reality that most elder abuse is committed by family 
            members that the elderly persons trusts. Further, due to 
            the mental problems commonly associated with aging, the 
            elderly are at a particular disadvantage when trying to 
            recover their funds once they discover that those funds 
            have been taken by a person they trusted.   

            It is also inconsistent with common sense and fairness 
            for unmarried couples using joint tenancy bank accounts 
            to allow whoever decides to terminate the relationship to 
            take and keep all of the couple's money.

            AB 1624 is needed both to restore the fair and reasonable 
            intention of the Legislature when the California 
            Multiple-Party Accounts Law was enacted and to generally 







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            comply with the intent of the parties on an account that 
            their ownership is based on their individual 
            contributions to the account rather than whoever gets to 
            the bank first.


           ASSEMBLY FLOOR  :  69-0, 3/22/12
          AYES:  Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, 
            Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, 
            Brownley, Buchanan, Butler, Campos, Carter, Cedillo, 
            Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, 
            Feuer, Fong, Fuentes, Beth Gaines, Galgiani, Garrick, 
            Gatto, Gordon, Grove, Hagman, Halderman, Hayashi, Roger 
            Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, 
            Knight, Lara, Ma, Mansoor, Mendoza, Miller, Mitchell, 
            Monning, Morrell, Nielsen, Norby, Olsen, Pan, Perea, V. 
            Manuel Pérez, Portantino, Silva, Smyth, Solorio, Swanson, 
            Torres, Wagner, Wieckowski, Williams, Yamada, John A. 
            Pérez
          NO VOTE RECORDED:  Charles Calderon, Fletcher, Furutani, 
            Gorell, Hall, Harkey, Logue, Bonnie Lowenthal, Nestande, 
            Skinner, Valadao


          RJG:m  7/6/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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