*931Opinion
COLOGNE, Acting P. J.Petitioner Alice L. Kohler brought a proceeding under Probate Code section 851.5 to determine title to funds totaling over $26,500 on deposit at Home Federal Savings and Loan Association (Home Federal) in an account standing in the name James Linwood Collins. Kohler appeals the court’s order denying the petition and decreeing the funds are an asset of Collins’ probate estate.
The hearing on the petition was conducted on stipulated facts. Collins went to the Central Federal Savings and Loan Association (Central Federal) office in Carlsbad on October 11, 1976, and signed an application for individual trustee savings deposit account naming himself as trustee and Kohler as beneficiaiy of the funds remaining in the account at his death. Collins also signed and delivered to Central Federal a sight draft directing Home Federal to pay the balance of his account No. 019-034153-7, $26,597.62 plus accrued interest, to Central Federal for credit to the trustee savings account. At the same time Collins also delivered to Central Federal his passbook which evidenced his ownership of the Home Federal account. Collins had no funds on deposit at Central Federal at that time and made no deposits. Central Federal prepared a passbook but made no entry for any balance in the account.
Central Federal forwarded the sight draft and evidence of account ownership to Home Federal. On October 15, Home Federal wrote Central Federal demanding Collins’ signature on the sight draft be notarized.
Collins died intestate October 15 and the Home Federal account was inventoried in his estate by the administrator, James L. Kintz. Kohler is one of three persons entitled to succeed to Collins’ property.
In reaching its conclusion the court found Collins intended to create a trust of the Home Federal account balance for the benefit of Kohler, but found no such trust was in fact created.
Kohler asserts a Totten trust was created without a transfer of the funds, claiming Collins made a declaration of trust and adequately designated the trustees and beneficiaiy simply leaving to be done a ministerial transfer of funds to the designated depositaiy which is only coincidental to the trust creation. We analyze the case before us keeping *932in mind the trial court’s specific finding Collins intended to create a trust. The facts clearly support such a finding.
The doctrine of “tentative trusts” created by the deposit of funds in trust for some person other than the depositor is accepted law in this state (Brucks v. Home Federal S. & L. Assn., 36 Cal.2d 845, 849 [228 P.2d 545]; Kuck v. Raftery, 117 Cal.App. 755, 757-759 [4 P.2d 552]; Evinger v. MacDougall, 28 Cal.App.2d 175, 179 [82 P.2d 194]; Estate of Alberts, 38 Cal.App.2d 42, 47-48 [100 P.2d 538]; Hyman v. Tarplee, 64 Cal.App.2d 805, 812-813 [149 P.2d 453]; Kosloskye v. Cis, 70 Cal.App.2d 174, 177-180 [160 P.2d 565]; Katz v. Greeninger, 96 Cal.App.2d 245, 247-248 [215 P.2d 121]; and see Fin. Code, § 8531). California has, in this regard, followed the rule set out in the case of In re Totten, 179 N.Y. 112 [71 N.E. 748, 752]: “A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.”
The issue here is whether there was in fact a deposit in trust for some person other than the depositor, an essential ingredient to the creation of a “tentative” or “Totten” trust (see Brucks v. Home Federal S. & L. Assn., supra, 36 Cal.2d 845, 849-850; and see 1 Scott on Trusts, § 58 et seq., p. 519 et seq.).
In a real sense a tentative or Totten trust is not a trust at all but is a recognized exception to the law of testamentary disposition and as such obviates the necessity for compliance with the requisite statutory elements of executing a will. “The doctrine is an anomalous fiction evolved by the courts to enable persons to dispose of small sums of money without testamentary formalities and expense.” (Note (1940) 28 Cal.L. *933Rev. 202; see also Annot., Trust in Individual Bank Deposit, 38 A.L.R.2d 1243, 1283.) “It is clear that a similar trust of property other than savings bank deposits would be invalid.” (Scott, Trusts & the Statute of Wills, 43 Harv.L.Rev. 521, 543.) Under these circumstances we are compelled to confine its application to the limited area where its application is authorized.
A “depositor” is one who pays money into a bank in the usual course of business, to be placed to his credit (Merchants Nat. Bk. v. Continental Nat. Bk. 98 Cal.App. 523, 530 [277 P. 354]). The relation of the bank and the depositor is that of debtor and creditor and is founded on contract (Allen v. Bank of America, 58 Cal.App.2d 124, 127 [136 P.2d 345]). The agreement between the parties relative to the “deposit” is thus significant. Generally speaking, a deposit is complete when money or negotiable instruments are delivered into the possession of the bank (9 C.J.S., Banks and Banking, § 269, p. 549). Whether any particular transaction constitutes a deposit in the accepted sense of that term will depend on the intent of the parties as ascertained from the facts and circumstances disclosed (9 C.J.S., Banks and Banking, § 269, at pp. 549-550; see Fourth Nat. Bank v. Wilson, 110 Kan. 380 [204 P. 715, 719-720]; and see First Nat. Bank v. Hirning, 48 S.D. 417 [204 N.W. 901, 904]).
The parties here stipulated there was no “deposit” into the Central Federal savings account and the court made a finding no trust was created in favor of Kohler. Substantial evidence supports that position. We note the passbook to the savings account and the executed sight draft were handed to Central Federal for the purpose of opening an account in Collins’ name as trustee. No credit was made to the new account at that time and while the actual entry of a credit may not be essential to the creation of a “deposit” (see Duggan v. Hopkins, 147 Cal.App.2d 67, 70-71 [304 P.2d 823]), the absence of a credit does evidence the agreement of the parties no deposit was intended at that time. Presentation of the passbook and acceptance of the sight draft by Home Federal were necessary to complete the collection process and to effect the deposit. It was apparent Central Federal was unwilling to acknowledge a deposit at the time Collins handed over the signed documents, or to assume the debtor-creditor relationship with Collins until the collection was complete; similarly, Collins was well informed by reason of the zero balance in his new passbook no “deposit” had yet been effected. There was no deposit.
*934It has been suggested that by doing everything necessary to create the deposit Collins made a symbolic delivery to Central Federal and effectively created a tentative or Totten trust. Symbolic delivery has been used as a manner of consummating a gift where the donor desires to transfer to the donee, trustee or beneficiary the present power of dominion and control. (White v. Bank of America, 53 Cal.App.2d 831, 833 [128 P.2d 600]; Gordon v. Barr, 13 Cal.2d 596 [91 P.2d 101] [gift causa mortis]; Klindera v. Smith, 15 Cal.App.2d 115, 118 [59 P.2d 156] [joint tenancy bank account]; Lawson v. Lowengart, 251 Cal.App.2d 98 [59 Cal.Rptr. 186] [inter vivos trust].) In the tentative or Totten trust, however, the owner intends no such transfer. Nor was there an assignment in the usual sense.2
The formalities which the law imposes for making a testamentary disposition of property are often burdensome but are founded on good reason and a long line of historical precedent. Until that concept is altered by the Legislature we are compelled to uphold the principle that mere attempts to meet those requirements are not sufficient even when accompanied by the proper intent. Here Collins simply attempted to alter his own method of holding title to accomplish this method of testamentary disposition. His efforts were as legally unproductive as those of the individual who has his attorney prepare a will expressing his wishes but fails to sign it or signs it out of the presence of his witnesses, or the individual who writes a holographic will and fails to date it. There was no trust account here, only an application to open one. Collins certainly declared his intent to make such a deposit at Central Federal and did everything required of him to effect that intent. There was no “balance on hand at the death of the depositor.” (In re Totten, supra, 71 N.E. 748, at p. 752.) The fact remains, however, no deposit was made. Under these circumstances there was no compliance with the requirement of a deposit necessary for the creation of a tentative or Totten trust. Reaching the same result on similar facts is Linder v. Richmond Hill Savings Bank, 30 Misc.2d 839 [219 N.Y.S.2d 562].
*935Kohler argues Collins’ actions created a trust for her benefit as to the funds on deposit at Home Federal.
Essential to the creation of such a trust is the matter of intent, and this is a question of fact for 'the trier of facts (Brucks v. Home Federal S. & L. Assn., supra, 36 Cal.2d 845, 850; Kosloskye v. Cis, supra, 70 Cal.App.2d 174, 180-181). The issue was resolved by the trial court’s finding such intent was present.
A declaration by a person he is to hold his own money in his own name “as trustee” for another creates, at most, a legal relationship which is entirely revocable at the will of the person making the declaration (see Brucks v. Home Federal S. & L. Assn., supra, 36 Cal.2d 845, 850). Where the person making that declaration reserves power not only to revoke but also to control the administration of the trust during his lifetime as he likes without restriction, the testamentary nature of the trust is most apparent (see Randall v. Bank of America, 48 Cal.App.2d 249, 252 [119 P.2d 754]). The existence of such broad reserved powers over the named property must meet the standards required of a testamentary disposition unless it is shown to be within the narrow situation of a “tentative” or “Totten” trust which we have already negated. The situation is described in this way by Scott on Trusts: “If indeed the settlor reserves power to deal with the trust property during his lifetime as he likes, the trust may be testamentary. Thus if the owner of property declares himself trustee to dispose of the property in any way he chooses as long as he lives, and provides that, if he has not .otherwise disposed of the property during his lifetime, it is to be held upon his death for a designated beneficiary, the trust is testamentary and invalid unless the requirements of the Statute of Wills are complied with.” (1 Scott on Trusts, § 57.6, p. 519.)
In this case there has been at best an ineffectual attempt to make a testamentary disposition which cannot be carried out without compliance with statutory requirements governing the making of wills (see Noble v. Learned, 153 Cal. 245, 251-252 [94 P. 1047]; see also Cohen v. Meyers, 6 Cal.App.3d 878, 880-882 [86 Cal.Rptr. 456]).
In Noble v. Learned, supra, 153 Cal. 245, the owner gave certain stock certificates to another to hold “for her.” She stated she did not want to *936put the property out of her control but wanted to be able to use or control them in whole or part as long as she lived, and on her death have them delivered to another. The trial court found the owner intended that any of the certificates not parted with in her lifetime should go to the other parties designated. She was, however, not transferring any present interest in the shares because she reserved full control. She was merely arranging a disposition which would take effect upon her death. The Supreme Court said: “Taking it all together, it justified the inference that, while [the owner] undoubtedly intended and desired that any of the certificates not parted with in her lifetime should go to the parties designated, she was not transferring any present interest in the shares, but was merely endeavoring to arrange a disposition of them which should take effect upon her death. Such disposition, being in effect testamentary, could not be made effective except by a will executed in accordance with the statutory requirements governing the making of wills.” (Noble v. Learned, supra, 153 Cal. 245, 252.)
The existence of intent to create the trust even when combined with a declaration of trust is not alone enough to create a trust under the facts of this case. Where the powers of revocation and control during the owner’s lifetime are as broad as evident here, it is apparent a testamentary disposition is intended and this cannot be effected without violating the sound policy considerations underlying the due execution requirements of formal wills (see Prob. Code, § 50; see 1 Scott on Trusts, supra, § 57.6, p. 518). Collins did not meet the requisites of a will and we must conclude there was no trust created.
In summary, we hold the type of trust Collins intended to create, a “tentative” or “Totten” trust, was not created because no deposit required by law was in fact accomplished. Moreover, viewing Collins’ intent as directed to the creation of a type of trust other than a “tentative” or “Totten” trust, it was, in view of the after-death nature of the intended transfer and the broad powers he reserved to himself during his lifetime,, an attempt to effect a testamentary disposition in violation of the statutory requirements,
Order affirmed.
Welsh, J.,* concurred.
Financial Code section 853 provides: “Whenever any deposit is made in a bank by any person which in form is in trust for another, but no other or further notice of the existence and terms of a legal and valid trust is given in writing to the bank, in the event of the death of the trustee, the deposit or any part thereof may be paid to the person for whom the deposit was made, whether or not such person is a minor.” (Italics added; see also Rest.2d Trusts, § 58.)
A check or draft does not of itself operate as an assignment of any funds in the hands of the drawee (here Home Federal) available for its payment, and the drawee is not liable on the instrument until the drawee accepts it (Cal. U. Com. Code, § 3409, subd. (1); Holbrook v. Smith, 87 Cal.App.2d 66, 73 [196 P.2d 824]; and see 2 Witkin, Summary of Cal. Law (8th ed. 1973) Negotiable Instruments, § 7, pp. 1296-1297; 10 Cal.Jur.3d, Bills and Notes, § 218, p. 225). “Assignment is a term which may comprehensively cover the transfer of title [ndt possession] to any kind of property.” (1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, § 726, italics in original. See also Commercial Discount Co. v. Cowen, 18 Cal.2d 610, 614 [116 P.2d 599]; cf. Dunlap v. Commercial Nat. Bank, 50 Cal.App. 476, 480 [195 P. 688], where there was an assignment, but of title and to a third person.)
Assigned by the Chairperson of the Judicial Council.