Legislature(2011 - 2012)BARNES 124
02/29/2012 03:15 PM House LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| HB292 | |
| HB266 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 292 | TELECONFERENCED | |
| += | HB 266 | TELECONFERENCED | |
HB 292-PRINCIP.& INC/PROBATE/UTMA/RETIREMT/ETC.
4:05:28 PM
CHAIR OLSON announced that the first order of business would be
HOUSE BILL NO. 292, "An Act relating to property exemptions for
retirement plans; relating to pleadings, orders, liability, and
notices under the Uniform Probate Code; relating to the Alaska
Principal and Income Act; relating to the Alaska Uniform
Transfers to Minors Act; relating to the disposition of human
remains; relating to insurable interests for life insurance
policies; relating to transfers of individual retirement plans;
relating to the community property of married persons; and
amending Rule 301(a), Alaska Rules of Evidence."
4:05:58 PM
JANE PIERSON, Staff, Representative Steve Thompson, Alaska State
Legislature, on behalf of the bill's sponsor, Representative
Thompson, stated that HB 292 is a trust bill and she then read
the title of the bill. She indicated that Dave Shaftel would
walk the committee through the bill.
4:07:28 PM
DAVE SHAFTEL, Attorney, Shaftel Law Offices, LLC, stated that he
is an attorney in private practice who works in the area of
estate and estate and trust administration. He related he is
also a member of an informal group of lawyers and trust officers
who have worked with the legislature for approximately 14 years
on estate law to make recommendations to improve this area of
Alaska's law. He highlighted that Alaska is considered a leader
in estate law, such that many states have copied Alaska's laws.
He characterized this area of law as a dynamic one across the
U.S. Estates affect nearly everyone so improving estate laws
will help all Alaskans. This is a particularly good and
thorough bill that covers a number of "bread and butter"
subjects, which are the types of things that affect many
families.
4:09:17 PM
MR. SHAFTEL provided a section by section analysis of the bill.
He stated that Section 1 pertains to asset protection for
inherited retirement plans. He explained that retirement plans
are protected from an employee's creditors by federal and state
law. Under federal law, the bankruptcy courts have extended
this protection to the beneficiaries of a retirement plan. He
related a scenario in which in which a husband has an individual
retirement account (IRA) or retirement interest and passes away
and names his wife as beneficiary. Thus the wife's interest in
the plan would be protected from her creditors.
MR. SHAFTEL stated that this represents the majority rule in
bankruptcy courts. There are 12 jurisdictions which have
enacted this type of protection under their bankruptcy codes,
including Arizona, Florida, and Texas.
4:11:04 PM
MR. SHAFTEL turned to proposed Section 2, which is a conforming
amendment for Section 28, while Section 3 offers definitional
changes relating to the provision just described. The changes
in Section 4 pertain to settlement agreements and representation
for settlement agreements. He explained that practical problems
arise in reaching settlement agreements in non-judicial
settlement proceedings or in court. He characterized Alaska's
statute as a good statute. This would allow someone with
similar interests, such as a parent, to represent his/her minor
children in a settlement agreement. The problem was that while
it is clear it pertains to judicial proceedings, questions arose
as to whether the provision pertained to out of court
settlements.
4:12:05 PM
REPRESENTATIVE SADDLER referred back to the example for Section
1, which outlines that the surviving spouse's interest in an
Individual Retirement Account (IRA) would be protected. He
asked for clarification on how this provision would affect
children who were partial beneficiaries of an IRA. He pointed
out this is the case for his wife and children.
MR. SHAFTEL answered that the protection would apply to each
beneficiary.
4:13:08 PM
MR. SHAFTEL turned again to settlement agreements. He stated
that Section 4 and Section 5 will make it clear that this type
of representation would apply to settlement agreements made
outside a judicial setting. He gave an example in which a
trustee renders an accounting, noting in such instances the
mother can approve the accounting for herself and her minor
children. He explained that this provision is binding on the
minor children since the interest of children is same as the
mother's interest. He pointed out that this provision is a
clarification provision of AS 13.06.120.
4:13:59 PM
REPRESENTATIVE SADDLER asked for further clarification on same
interest or equivalent monetary interest.
MR. SHAFTEL answered that the interest does not need to be the
same monetary interest. He referred to the same scenario, but
related in this instance, 50 percent of the IRA was designated
for the surviving spouse, and 10 percent to the surviving five
children, three of whom are minors. If the will was challenged,
the spouse could agree to it for herself and for the three minor
children. He related that the children would essentially have
the same interest as the mother. Thus the mother would protect
her share as well as the children's' shares.
REPRESENTATIVE SADDLER related his understanding that it would
be the same class of interest as a creditor.
4:15:57 PM
MR. SHAFTEL stated that proposed Sections 6-8 pertains to a type
of trust modification referred to as decanting, which has
developed nationwide in order modify an irrevocable trust to
correct errors and to adjust for changed circumstances and new
laws. In 1998, Alaska enacted its decanting statute under AS
13.36.157. At that time, Alaska was the third state to enact
that type of law, which was modeled after New York's statute.
Since that time, then 13 other states have enacted decanting
statutes and three others have pending changes. This has become
a popular way to handle irrevocable trusts. In 2011, New York
substantially revised its law. The proposed changes in HB 292
amendment closely tracks the New York provisions with certain
procedural changes to accommodate references to our law.
4:17:46 PM
MR. SHAFTEL referred to the proposed Sections 9-25, which
pertain to the Uniform Alaska Principal and Interest Act
(UAPIA). He provided a brief history, noting that in 2003,
Alaska updated their UAPIA act. One of the main changes made
was to create a unitrust approach for determining the income of
the trust. Often, many trusts provide for income to be paid to
the spouse and after his/her death, will pay the remainder of
the estate to surviving children in equal shares. This approach
has created a tension between the surviving spouse and the
children since the surviving spouse often is interested in
investing the estate's assets to produce income, while the
children prefer to have assets invested to produce equity
growth. Therefore, while the spouse would often want to invest
in bonds, the children would prefer to invest in stocks. The
unitrust concept was developed to alleviate that tension. Under
a unitrust, instead of paying income the trust would require
payment of a percentage of assets, such as four percent of the
assets that exists at the beginning of the year. Thus if stocks
provided the best investment, the family could invest in
equities and sell four percent of them each year. After the
unitrust concept was enacted, over time the IRS has enacted
regulations related to the unitrust. The unitrust concept is
one that has been used nationwide. He said a Philadelphia
attorney who is a specialist in this area of estate law, has
recommended changes to update Alaska's unitrust laws. The
changes would allow a trustee to choose a unitrust rate without
going to court. The unitrust rate does not have to be set at
four percent, but is flexible and could range from three to five
percent. These changes provide a better definition of income
and an ordering of income among the types of income and
principal, such as capital gains, ordinary income, and return of
principal. Additionally, this also provides a smoothing period
of up to five years for determining the amount of assets. This
helps avoid fluctuations by using a five-year average of the
value of the assets in the trust and applies that percentage to
the average. This provision would also clarify the unitrust
method can apply to retirement benefits, as well. He offered
his belief that these changes will facilitate the use of the
unitrust concept for Alaska's residents.
4:21:34 PM
REPRESENTATIVE HOLMES asked whether it is fair to say that this
would make the trust law a little more like how foundations are
run, which is a percent of market value calculation to be used.
MR. SHAFTEL answered yes.
4:22:01 PM
REPRESENTATIVE SADDLER questioned whether this would resolve the
growth versus income issue just raised. He pointed out that the
children may still want long-term growth investments and the
spouse may want bonds for short-term return on investment.
MR. SHAFTEL offered to clarify this aspect more fully. He
explained that in 2003, Alaska's law was changed to address the
growth versus income aspects. He agreed the changes he just
described did not focus on this issue. He offered to illustrate
the basic changes by relating a scenario in which an existing
trust would distribute income to his wife. After she dies, the
trust would pay the remainder of the assets to his three
children. He highlighted that this trust could be converted to
a unitrust. Thus, instead of having the tension between
investing for income or equity growth, the trustee would be
given direction, for example, to pay five percent each year of
the value of assets to his spouse. Thus, the changes would
allow the trustee to invest to maximize the best total return,
which is also called a total return unitrust. He offered his
belief his spouse will be satisfied so long as she receives the
five percent annually. Of course, she would hope the trust
funds will be invested to maximize the best total return.
4:24:17 PM
REPRESENTATIVE SADDLER clarified the three to five percent
election is based on the corpus and not the proceeds.
MR. SHAFTEL agreed.
4:24:31 PM
MR. SHAFTEL turned to proposed Sections 26-28, which he said was
initially suggested by a legislator and relates to the Uniform
Transfer to Minors Act (UTMA). He pointed out that every state
has an UTMA. He described a UTMA as an informal method of
creating a trust. A person could go to bank or brokerage firm
to create an account and make gifts to the account. Over time,
the UTMA can build up and become substantial assets. The law
dictated that if the deposits were gifts, when the child reaches
age 21, he/she is entitled to the fund, but up until then a
custodian is named to the account. The custodian may be the
person who contributed to the UTMA or it may be someone else.
The custodian can also spend the money on behalf of the child.
He pointed out that problems have developed since some of these
accounts represent very substantial assets. When a child
reaches the age of 21, he/she may not be ready for the assets
due to maturity problems or the child may not have the
experience to handle substantial funds since it may derail
him/her from attending college or developing a career.
Additionally, a drug or alcohol problem may exist that would
only be exacerbated if he/she receives substantial funds.
4:26:51 PM
MR. SHAFTEL explained that this issue has arisen nationwide.
Under the IRS code, the child must be given the right to compel
for distribution at age 21; however, if the child agrees, and
often that is the case, under existing law the age can be
extended to age 25. He pointed out there isn't any reason the
age cannot be extended beyond 21 or 25. This statute allows the
custodian to give notice to the child to extend the trust up
until the age of 30. The child has the right at age 21 to
compel a distribution, but if the child agrees it will be
extended to age 30. He offered his belief that often a child
will recognizes he/she is not quite ready to manage the funds.
He reiterated that the custodian has a fiduciary duty to manage
the funds for the benefit of the child.
4:28:22 PM
REPRESENTATIVE SADDLER asked whether there is an outside age
limit.
MR. SHAFTEL answered no, but the longer the extension the more
likely the child will not agree to an extension. He stated that
there could be a series of these extensions. In practice the
wisest proposal would be to propose a reasonable extension, then
when the child reaches that age, to propose another extension.
He reminded members that the beneficiary is considered an adult
at 18 and the assets are his/her property.
4:29:38 PM
REPRESENTATIVE CHENAULT asked whether the child would have the
ability to receive the funds at any time. He also understood
that the agreement would allow the custodian to extend the
timeframe.
MR. SHAFTEL answered that once assets are deposited to the
account the custodian would manage the funds for the minor that
the child has right to demand the assets until the child reaches
age 18, or if the UTMA represents a gift at age 21. However, if
the custodian approaches the child at age 21 and proposes an
extension to age 25, which is agreed to by the child, the child
would not have access to the assets until he/she reached age 25.
He cautioned that the custodian has a fiduciary responsibility
to the child, so if the child needed funds for college and the
custodian refused, the custodian would be in violation of
his/her fiduciary duties. In that instance the child could
petition the court for remedy; however, the child cannot just
demand assets at will. He reiterated that the custodian cannot
act unreasonably.
4:32:10 PM
REPRESENTATIVE CHENAULT related his understanding that the child
would have access to the funds unless he/she agrees to extend
the UTMA to ages 25 or 30.
MR. SHAFTEL agreed.
4:32:37 PM
MR. SHAFTEL referred to Section 29 to the decedent remains.
Alaska does not presently have statutory authority with respect
to who may control the disposition of a decedent's remains,
which is an issue that was identified during the estate planning
sessions. Significant disputes have arisen, which not only
affect the decedent, his/her family, but also the funeral
businesses. He explained that his group would like to make it
clear who has the power to make these decisions and to protect
funeral businesses from any liability. Thus Section 29 provides
authority for a person to sign a form to clarify who has the
authority to make final decisions. If a person has not signed a
form, this provision contains a priority list identifying who
can make any decisions on behalf of a decedent.
4:34:45 PM
REPRESENTATIVE CHENAULT asked for clarification of who is first
and last on the priority list just mentioned.
MR. SHAFTEL referred to page 24, to the proposed AS 13.75.020 of
HB 275, which outlines the order of those who may control
disposition of a decedent's remains, beginning with the
designee, followed by the person serving as personal
representative, the spouse, and sole adult child. He related
that the proposed statute lists a total of eight priorities.
4:35:42 PM
REPRESENTATIVE SADDLER asked whether a personal representative
is different class than executor of the estate.
MR. SHAFTEL answered that most wills will identify the personal
representative, who is the person to handle the probate as the
manager of the will. In further response to Representative
Saddler, he agreed that this person is also the executor of the
estate.
4:36:39 PM
MR. SHAFTEL referred to Section 30 to insurable interests. He
explained that in order to buy a life insurance policy on
someone's life, the person must have an insurable interest. A
person cannot randomly buy life insurance policies for others.
In 2005, a federal court case in Virginia, Chawla, ex rel
Giesinger V. Transamerica Occidental Life Ins. Co., 2005 WL
405405 (E.D. Va. 2005) raised questions as to whether a trustee
of a life insurance trust had an insurable interest and could
buy insurance on the settlor's life. Additionally, it raised
questions about partnerships and limited liability corporations
(LLCs). The Uniform Law Commission studied the matter and made
amendments to the Uniform Trust Code. This section, Section 30,
would incorporate these amendments to make it clear that a
trustee or general partner or manager may buy an insurance
policy on a family member if the beneficiaries are people who
would have insurable interest.
4:38:52 PM
REPRESENTATIVE JOHNSON moved to adopt the proposed committee
substitute (CS) for HB 292, labeled 27-LS1232\B, Bannister,
2/22/12, as the working document.
CHAIR OLSON objected for purpose of discussion. There being no
objection, Version B was before the committee.
4:39:56 PM
MR. SHAFTEL referred to Section 31, which pertains to transfers
of individual retirement account (IRA) interests. He explained
that lifetime estate planning often involves making gifts,
sales, or other transfers of property to family members or
trusts for their benefit. He offered his belief that this has
become more popular as the estate and gift tax laws have
changed. This provision would allow the transfer of IRA
interest to a grantor trust for the benefit of the employee
participant's family members. He related that no adverse tax
consequences would occur and would allow the participant of an
IRA to voluntarily transfer his or her IRA, and any growth of
the IRA, out of transferors' gross estate for federal estate tax
purposes.
4:41:29 PM
REPRESENTATIVE SADDLER asked whether this would allow people to
transfer their IRA during their lifetime.
MR. SHAFTEL answered yes. He expanded on this, noting adverse
tax consequences would occur if it was done to other than a gran
tour trust. He highlighted that this provision will likely be
used on irrevocable trusts, with respect to transfers or
contributions by the settlor of the trust, without any income
tax consequences.
4:42:24 PM
REPRESENTATIVE SADDLER asked if other states allow transfers of
IRA interests.
MR. SHAFTEL answered no. He stated that this is probably the
first time this provision would be enacted nationwide.
REPRESENTATIVE SADDLER questioned the IRS implications.
MR. SHAFTEL answered prior to estates using this provision that
the parties would likely apply to IRS for a private letter
ruling.
4:43:00 PM
MR. SHAFTEL turned to proposed Section 32-36, which pertains to
community property law. In 1998, Alaska was the tenth state to
enact an optional community property system, which consists of
primarily western states, including Washington, California,
Nevada, Arizona, New Mexico, Texas, Louisiana, as well as
Wisconsin. He explained that the community property concept is
a sharing concept between spouses, with each spouse owning 50
percent of the property, with very attractive income tax
implications. When the first spouse dies, both halves of the
community property receive an adjustment, which allows the
surviving spouse to sell property without paying capital gains
tax. He explained that implementation and clarification
provisions are needed. He explained that community property is
unique in every state. This bill clarifies that property which
spouses agree is owned as community property is community
property regardless of the form of title to the property. Thus
the property will be community property even if the title is
only in one spouse's name, so long as the husband and wife have
agreed that property is community property. This bill clarifies
this and the clarification is important for title companies and
banks. Another clarification and one he believes has been
needed pertains to the right of survivorship. In instances in
which title to community property is in a form that provides for
survivorship ownership between the spouses then it is presumed
to have been made with the consent of both spouses. He said
that another situation commonly encountered is property with
beneficiary designations. If one spouse executes a beneficiary
designation it is only effective for that spouse's half interest
unless the other spouse consents in writing. He pointed out
that various family designations are presumed to have been made
although these can be overcome by surviving spouse's testimony.
4:46:27 PM
MR. SHAFTEL said it was necessary to clarify the statute of
limitations when transfers were made improperly by one spouse of
community property without the consent of the other and to
provide remedies for those improper transfers. He characterized
this as a "clean up" bill that helps implement elective
community property.
4:46:52 PM
REPRESENTATIVE SADDLER referred to Section 40. He remarked he
had not seen the standard for two-thirds majority often included
in a bill. He then referred to the legal memo from Terry
Bannister, Legislative Legal Services attorney, with respect to
the single subject rule for bills. He asked for clarification
with respect to the violation of the single subject rule.
MR. SHAFTEL acknowledged that he was aware of the letter. He
concluded that the legislative attorney's job is to point out
possible issues. He said he has discussed the letter with the
attorney. He offered his belief that all of these proposed
changes are under Title 13 and while a possible issue may occur
that it would probably arise by someone who wanted to challenge
a part of the bill. He observed that it is unclear how the
Alaska Supreme Court would rule in such a case. He offered
there is a practical reason to keep these changes in one bill
and to not have numerous bills before the legislature that
pertain to estate law.
CHAIR OLSON remarked that he planned to hold the bill over for
that reason and is working with Ms. Bannister on this issue.
4:49:19 PM
DOUG BLATTMACHR, President; Chief Executive Officer, Alaska
Trust Company, stated that Alaska Trust Company supports the
bill.
4:50:04 PM
CHAIR OLSON, after first determining no one else wished to
testify, closed public testimony on HB 292.
[HB 292 was held over.]
The committee took an at-ease from 4:50 p.m. to 4:52 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB292 Draft Proposed CS ver B.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 292 |
| HB292 Fiscal Note-DCCED-INS-02-24-12.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 292 |
| HB292 Explanation of Changes from Ver A to Ver B.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 292 |
| HB292 Legal Opinion.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 292 |
| HB292 Sectional Analysis ver B.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 292 |
| HB292 Sponsor Statement.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 292 |
| HB292 ver A.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 292 |
| HB266 Supporting Documents-Assorted emails.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 266 |
| HB266 Supporting Documents-Assorted faxes 2--17-12.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 266 |
| HB266 Supporting Documents-Email Michele Scott 2-28-12.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 266 |
| HB266 Supporting Documents-Written Testimony Danielle Gabriel 2-27-12.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 266 |
| HB266 Supporting Documents-Assorted Written Testimony 2-29-12.pdf |
HL&C 2/29/2012 3:15:00 PM |
HB 266 |