Legislature(1999 - 2000)
05/03/1999 02:02 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 163-TRUSTS AND TRUSTEES
MS. BETH CHAPMAN, an attorney with the law firm of Faulkner
Banfield, explained that SB 163 is additional trust legislation
designed to provide guidance to individuals who are establishing
trusts, to attorneys who are drafting trusts, and to the courts who
administer trusts if litigation arises. Current statute requires
a trustee to inform and to account to beneficiaries of the trust.
The term "current beneficiary" is used in statute to refer to who
is to be notified when a trust is registered, however, that term is
not defined in statute. SB 163 defines a "beneficiary" as "a
person who sees a mandatory distribution of income or principal
from a trust," which is how practitioners throughout the state have
interpreted that term. The court recently used a different
interpretation; an interpretation contrary to the grantor's intent
when the trust was established.
MS. CHAPMAN maintained that a statutory definition is needed to
limit the beneficiary to someone who receives a mandatory
distribution of income or principal because attorneys know who that
individual is and who the obligation runs to. The court has
interpreted a beneficiary to be any discretionary beneficiary under
a trust. That interpretation will require attorneys to locate
beneficiaries who never receive any income or corpus of the trust,
including future unborn heirs. It is also unclear whether the
guardian of a minor has to be notified. The definition in SB 163
is designed to provide guidance to the practitioners and to the
courts.
TAPE 99-29, SIDE B
MS. CHAPMAN said she has personally been involved in litigation
that has focussed on this particular statute, in which the grantor
established a trust for the benefit of his surviving spouse. The
trust was registered and the two children were listed as contingent
beneficiaries to receive the corpus when the surviving spouse
passed away. The children were not notified of the existence of
the trust, which is consistent with the interpretation used by
practitioners throughout the state. Years later, a lawsuit ensued,
and the court decided the trustee had breached her obligation by
not notifying the discretionary beneficiary. When the discretionary
beneficiary was notified, a lengthy lawsuit ensued, and the trustee
was stripped of her obligations for doing what every practitioner
considered to be the proper interpretation of the statute.
However, the court disagreed.
SENATOR DONLEY asked whether the children had a survivor or
immediate interest in the trust.
MS. CHAPMAN answered they had a survivor interest, therefore the
trust could have been expended entirely for the benefit of the
surviving spouse which is a typical estate planning technique.
CHAIRMAN TAYLOR pointed out the children had an expectancy: first
they had to out-live the primary beneficiary, and then the trust
had to contain enough money to make it worthwhile.
MS. CHAPMAN said that is correct. She explained in this instance,
one of the children went to court and argued that the money was
improperly expended for the benefit of the surviving spouse. That
caused family disharmony and expensive and lengthy litigation. She
repeated the court needs guidance in the area of notification of
beneficiaries.
SENATOR DONLEY asked what guidance Ms. Chapman is proposing. MS.
CHAPMAN replied she is proposing that the current beneficiary be
defined as a person entitled to a mandatory distribution of income
or principal from a trust.
SENATOR DONLEY said that proposal cuts out the children. MS.
CHAPMAN clarified only for the purpose of notification when the
trust is established.
SENATOR DONLEY asked Ms. Chapman if she believes the children
should know. MS. CHAPMAN said she does not.
SENATOR DONLEY said he totally disagrees because the children have
a survivor's expectation of preservation of the corpus, and they
ought to be involved depending on how it is written. MS. CHAPMAN
said the problem is that most trusts are written to give the
surviving spouse sole discretion. A person with a mere expectancy
can cause the grantor's intent to be undermined when the contingent
beneficiaries are notified that the trust has been established and
a conflict ensues.
SENATOR DONLEY maintained SB 163 is designed to make things simple
for trust lawyers and to get around the intent of the grantors. He
pointed out the only reason a trust like that is created is to
benefit the children in the long run while maintaining support of
the spouse for his/her lifetime. He stated the corpus should be
preserved, otherwise the grantor would not bother to create a
trust, he/she would bequest the entire amount to the spouse.
MS. CHAPMAN responded some trusts are set up for that purpose, but
the majority of trusts are bypass trusts that are not set up for
the preservation of the corpus for the children. They are designed
primarily and solely for the benefit of the surviving spouse and
are used as an estate tax savings device.
Number 542
MS. CHAPMAN discussed additional aspects of SB 163, relating to the
rules regarding modification and revocation of trusts. At present,
Alaska has no statutory provisions regarding modification or
termination of trusts. The courts must look to the common law. SB
163 will allow the court to modify or terminate trusts under
certain stated rules. Many times, trusts need to be modified
because of unexpected events that arise after the trust is
established, particularly in cases in which a trust was established
for estate tax savings or for the care of minor children. For
example, a minor child may become disabled and unable to handle the
trust when he/she comes of age, however, under current law, the
trust cannot be modified. SB 163 will allow the court to modify
trusts if consistent with the grantor's intent.
SENATOR DONLEY asked whether Section 2 applies to all kinds of
trusts. MS. CHAPMAN answered Section 2 applies to all trusts.
SENATOR DONLEY said he cannot support this legislation.
Number 524
CHAIRMAN TAYLOR discussed a scenario in which a couple set up a
trust naming the surviving spouse as the beneficiary. The couple
established the trust to avoid probate, and with the intent that
the surviving spouse would use the money to live on, and that any
remaining money, if any, would be split among the children after
the spouse's death. If each spouse has stepchildren, the family is
set up for immediate litigation under current law. The
stepchildren's expectancy might lead them to dictate how the
surviving spouse spends his/her money. He said he would hate to
see a child be able to sue a parent over what should be left in the
estate.
MS. CHAPMAN said that is what happened in the case she referred to
earlier.
CHAIRMAN TAYLOR pointed out if a trust was set up assuring the
children a percentage of the estate, the children would be a
mandated beneficiary and would have to receive notification. If a
trust is not set up in that manner, the children are given an
expectancy only.
MS. CHAPMAN said the beneficiaries who have the expectancy are not
prevented from suing. SENATOR DONLEY indicated the beneficiaries
should not be prevented from knowing about the trust. The problem
is that notification for all trusts will be wiped out based on one
case. He noted Section 2 is not targeted toward the problem
identified in that case; it will undo notification for people who
reasonably should be notified and who should have a reasonable
expectation of survival of the corpus.
MS. CHAPMAN repeated a current beneficiary who is entitled to a
mandatory distribution will receive notice.
SENATOR DONLEY said Ms. Chapman is anticipating that the spouses
will write the children in as co-beneficiaries, which they do not
tend to do even though they do intend that the corpus survive. He
repeated he disagrees with this policy.
SENATOR DONLEY noted one has to have an estate valued at $650,000
before taxes become a problem and suggested that estates below that
value be excluded.
CHAIRMAN TAYLOR maintained $650,000 is below the value of the
average person's house on the hillside.
SENATOR DONLEY contended this bill will make life easy for tax
lawyers and that it would be much more fair to include a provision
allowing the grantor to specify the potential beneficiaries and to
waive the notification requirement within the trust document. He
repeated Section 2 goes too far.
Number 449
MARY ZEMP, an attorney with Faulkner Banfield, clarified that lack
of notification does not mean a beneficiary cannot get information
because trusts must be registered and anyone can look at the court
record. In the particular litigation referred to by Ms. Chapman,
MS. ZEMP explained the father, who set up the trust for his wife,
specifically stated it was not his intent to preserve the trust for
the benefit of the remainderman. Also, the trust specifically said
the trustee did not need to account to anyone other than the
surviving spouse. His daughter sued and each client spent at least
$200,000 in legal fees.
SENATOR DONLEY said we should make that the law rather than cutting
everyone out from the notification requirement.
MS. ZEMP said the trust may say the opposite.
CHAIRMAN TAYLOR asked how one is to know who the potential
beneficiaries could be and how they are to be notified.
SENATOR DONLEY replied a lot of them will be known up front, but
the law can be written so that the trustee must use his/her best
effort.
CHAIRMAN TAYLOR asked at what point the beneficiaries must be
notified. MS. ZEMP replied when the trust is established, Alaska
law requires that the trust be registered and that notification of
registration be sent to current beneficiaries. Alaska trusts can
be established for ten generations. Determining whether one made
a reasonable effort will give rise to litigation.
SENATOR DONLEY repeated that the law should require that the person
setting up the trust specify whether the purpose is to save the
corpus for future beneficiaries, such as children.
Number 408
DAVE SHAFTEL, a member of an informal group of estate planning and
business attorneys in Anchorage, made the following comments. His
group has participated in the drafting of SB 162, and is strongly
in favor of it, particularly the rule against perpetuities issue.
The rule was essentially abolished in previous legislation yet some
technical remnants remain, making the elimination of the rule
awkward. One example is with a charitable lead trust, a second
example is with trusts for children. SB 162 will clarify the
abolishment of the rule. The purpose of SB 163 is to provide a
statutory provision that allows for the reformation or termination
of trusts where their purposes are not being met. Sometimes the
intent of the person who created the trust cannot be met due to
mistake of facts, mistake of law, or changed circumstances. In
such cases, the trust needs to be changed. Many other states have
similar legislation. These provisions track the restatement of
trust and the Uniform Trust Act. He stated SB 163 will establish
good, solid law for the State of Alaska.
MR. SHAFTEL suggested, if the committee continues to have concerns
about the notification issue, the burden should be placed on the
party who drafted the trust to state, with an introductory phrase,
that unless the trust instrument states otherwise, the duty to
inform and account applies. That would allow the person who sets
up the trust, at the time it is drafted, to say he/she does not
want to put the burden to inform contingent beneficiaries or
remainder persons of the trust's registration. Current statute
provides that notification is a mandatory obligation so one cannot
draft around it. He noted the mandatory requirement places a
tremendous administrative burden on trustees and a way needs to be
found to alleviate that burden if the trustor so chooses.
Number 345
CHAIRMAN TAYLOR thanked Mr. Shaftel and asked him to contact
Senator Donley directly with his suggestions.
Number 338
RICH HOMPESCH, a Fairbanks attorney, said he agrees with the
comments of previous speakers about SB 162 and SB 163. He directed
his comments to Section 2, regarding the duty to account. He has
drafted many trusts since the Alaska Trust Act passed two years
ago. Most of his clients tell him they do not want the trustee to
go to the expense of notifying all of the beneficiaries of the
trust. Most clients only want the trustee to notify and account to
the individual who is receiving the current income and corpus.
When he informs his clients of the statute's mandate regarding
notification, it causes a lot of problems. As written, Section 2
contemplates that unless the trust otherwise specifies, the rule
requiring that all beneficiaries be notified applies.
CHAIRMAN TAYLOR asked Ms. Chapman if any judgment was rendered when
the case she referred to was settled. He questioned whether that
case will set precedent.
MS. CHAPMAN replied it is not precedential. No judgment was
rendered in that case; interlocutory orders were issued.
CHAIRMAN TAYLOR said the judge stepped out on a very thin reed and
does not realize the impact that type of decision may have across
the board on all kinds of documents. MS. CHAPMAN said she agrees,
and that the judge may have understood the ramifications after
having then seen how far that litigation continued on before it
finally settled. She stated she does believe Senator Donley's
concerns can be addressed with language allowing the grantor to
except the trustee from the mandatory requirement of notification.
CHAIRMAN TAYLOR said that would be far superior to what Mr.
Hompesch said people are now doing, that is drafting trust
documents that hold the trustee harmless from lack of enforcement
of the law.
Number 271
CHAIRMAN TAYLOR asked those interested in seeing this legislation
move to talk to Senator Donley about his concerns, and to update
Senators Torgerson and Halford as well. He hoped to get a quorum
on Wednesday. He thanked all participants for their input and
adjourned the meeting at 3:20 p.m.
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