Estate of Levine

Opinion

HASTINGS, J.

This case illustrates one of the pitfalls of “how to avoid probate.” The appeal concerns a family residence held in joint tenancy although one of the spouses, secretly as it turned out, considered it community property. The court held the property to be joint tenancy and this appeal followed.

Phillip and Estelle Levine were married on January 1, 1974. They had been neighbors for 20 years on Saturn Avenue in Los Angeles, and their respective spouses had predeceased them by several years. Both had children from their prior marriages, all of whom were adults at the time Phillip and Estelle married.

In April of 1975, Phillip and Estelle purchased a home on Lindbrook Avenue in Los Angeles (the Lindbrook home), taking title as joint tenants.

Phillip died on November 26, 1977. His will named as coexecutors his attorney, Samuel Leemon, and his son Murray Levine. Murray filed a petition in the probate court seeking to have the Lindbrook home declared to be community property of Phillip and Estelle. After hearing testimony, the court determined that the home was joint tenancy property, and denied the petition.

At the hearing, Attorney Leemon testified in support of the petition.

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His testimony was as follows: He and Phillip were cousins and lifelong acquaintances, and he had handled Phillip’s legal affairs in recent years. Shortly after he married Estelle in January of 1974, Phillip came to Leemon and asked him to prepare a will. Since Phillip planned to sell his home on Saturn Avenue and purchase a new home with the pro

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ceeds, he wanted his will to reflect his intention with respect to the character of the property: the new home was to be considered community property, but would be held in joint tenancy for convenience only. The reason for this was twofold. First, Phillip wanted to be able to devise his one-half of the house to his children, Murray and Iris, which he would be able to do if the home were community property. However, if Estelle predeceased him he also wanted to prevent Estelle from devising her one-half of their community property to her children and wanted to avoid a lengthy probate administration, both of which he could accomplish by holding the property in joint tenancy. Phillip’s banker advised him that he could achieve what he wanted by holding the new home in joint tenancy but calling it community property. Leemon advised against this, and told Phillip that unless he had some agreement with Estelle that the home was to be community property, it would be considered joint tenancy property and would pass to Estelle if Phillip predeceased her. Phillip was. adamant, however, and said there was no problem because he and Estelle had such an agreement. Accordingly, the will was drafted with the following language: