Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/15/2012 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 165 PRINCIP.& INC/PROBATE/UTMA/RETIREMT/ETC. TELECONFERENCED
Heard & Held
+= SB 186 SENTENCING/PROBATION/MENTALLY ILL TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        SB 165-PRINCIP.& INC/PROBATE/UTMA/RETIREMT/ETC.                                                                     
                                                                                                                                
1:40:02 PM                                                                                                                    
CHAIR FRENCH  announced the consideration  of SB 165.  [CSSB 165,                                                               
labeled 27-LS0819\D was before the committee.]                                                                                  
                                                                                                                                
CHAIR  FRENCH  moved  Amendment  1,  labeled  27-LS0819\D.1,  and                                                               
objected  for  discussion  purposes.  He  asked  Mr.  Shaftel  to                                                               
explain the amendment.                                                                                                          
                                                                                                                                
                      A M E N D M E N T 1                                                                                   
                                                                                                                                
    OFFERED IN THE SENATE                 BY SENATOR FRENCH                                                                     
     TO:  CSSB 165( ), Draft Version "D"                                                                                        
                                                                                                                                
     Page 23, lines 10 - 11:                                                                                                    
         Delete "has the meaning given in AS 13.36.390"                                                                         
          Insert "means a person, including a person for                                                                        
          whom a fiduciary or agent is acting, who executes                                                                     
          the trust instrument"                                                                                                 
                                                                                                                                
1:40:59 PM                                                                                                                    
DAVID SHAFTEL,  Attorney at Law,  said his understanding  is that                                                               
this  amendment   was  requested  by  a   representative  for  an                                                               
association of  insurance companies.  It was designed  to prevent                                                               
"stranger-owned"  life  insurance,   and  addresses  an  industry                                                               
concern about  people who  invest in  life insurance  policies on                                                               
individuals  with whom  they have  no  relationship. Mr.  Shaftel                                                               
said the group of trust attorneys  that worked on the bill had no                                                               
objection to the amendment.                                                                                                     
                                                                                                                                
CHAIR  FRENCH  highlighted  an   email  from  Brenda  Nation  who                                                               
represents  the American  Council  of Life  Insurers urging  this                                                               
language.  The trade  group supports  the more  narrow definition                                                               
provided in the amendment.  .                                                                                                   
                                                                                                                                
1:45:16 PM                                                                                                                    
SENATOR COGHILL  summarized his  understanding of  the amendment.                                                               
The   term   settlor  covers   a   wide   range  of   contractual                                                               
relationships and  the amendment clarifies that  for this purpose                                                               
it means a trustee that has a specific agent requirement.                                                                       
                                                                                                                                
CHAIR  FRENCH agreed  that was  a good  common-sense reading.  He                                                               
asked  Mr. Shaftel  if there  was anything  incorrect about  that                                                               
characterization.                                                                                                               
                                                                                                                                
MR. SHAFTEL had no objection.                                                                                                   
                                                                                                                                
SENATOR  WIELECHOWSKI  asked if  this  would  have an  impact  on                                                               
divorcees.                                                                                                                      
                                                                                                                                
MR.  SHAFTEL replied  there is  wide variability  as to  what the                                                               
parties will negotiate  in a divorce setting. If  the husband and                                                               
wife have a policy that is  in a life insurance trust, that often                                                               
ends up being  part of the property that the  court considers and                                                               
divides.                                                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI asked  if an "ex" would  still be considered                                                               
family.                                                                                                                         
                                                                                                                                
MR. SHAFTEL answered yes.                                                                                                       
                                                                                                                                
CHAIR FRENCH  withdrew his objection  and announced  that without                                                               
further objection Amendment 1 was adopted.                                                                                      
                                                                                                                                
1:49:34 PM                                                                                                                    
CHAIR  FRENCH  moved  Amendment  2,  labeled  27-LS0819\D.2,  and                                                               
objected for  discussion purposes.  He asked  Mr. Shaftel  for an                                                               
explanation.                                                                                                                    
                                                                                                                                
                          AMENDMENT 2                                                                                       
                                                                                                                                
    OFFERED IN THE SENATE                 BY SENATOR FRENCH                                                                     
     TO:  CSSB 165( ), Draft Version "D"                                                                                        
                                                                                                                                
     Page 14, line 29, through page 15, line 29:                                                                                
          Delete all material.                                                                                                  
          Insert new bill sections to read:                                                                                     
        "* Sec. 23. AS 13.46.190 is amended to read:                                                                        
          Sec. 13.46.190. Termination of custodianship. The                                                                   
     custodian shall transfer in an appropriate manner the                                                                      
       custodial property to the minor or to the minor's                                                                        
     estate upon the earlier of the                                                                                             
               (1)  minor's attainment of 21 years of age                                                                       
     with    respect   to    property   transferred    under                                                                    
     AS 13.46.030 or  13.46.040 unless the time  of transfer                                                                    
     of  the  custodial property  to  the  minor is  changed                                                                    
     under AS 13.46.195 or 13.46.197;                                                                                       
               (2)  minor's attainment of 18 years of age                                                                       
     with    respect   to    property   transferred    under                                                                    
     AS 13.46.050 or 13.46.060, unless  the time of transfer                                                                
     of  the  custodial property  to  the  minor is  changed                                                                
     under AS 13.46.197;                                                                                                    
               (3)  time specified in the transfer under                                                                        
     AS 13.46.080 if  the time of transfer  of the custodial                                                                    
     property to the minor  is changed under AS 13.46.195 or                                                                
     13.46.197; or                                                                                                          
               (4)  minor's death.                                                                                              
        *  Sec. 24.  AS 13.46  is amended  by  adding a  new                                                                  
     section to read:                                                                                                           
          Sec. 13.46.197. Extension of custodial term by                                                                      
     custodian.  (a) A  custodian may  extend the  custodial                                                                  
     term under  this section to  an age older than  the age                                                                    
     that  is specified  by this  chapter or  a transferring                                                                    
     document made under AS 13.46.080,  subject to the right                                                                    
     of  the minor  to compel  immediate distribution  under                                                                    
     (c) of this section.                                                                                                       
          (b)  To extend the custodial term under (a) of                                                                        
     this  section,  the  custodian  shall  give  the  minor                                                                    
     written notice of the custodian's  intent to extend the                                                                    
     custodial term.  The notice  must specify  the duration                                                                    
     of the  extension by indicating the  new custodial term                                                                    
     and  must inform  the  minor of  the  minor's right  to                                                                    
     compel  immediate   distribution  under  (c)   of  this                                                                    
     section.  The custodian  shall give  the notice  during                                                                    
     the later of the following periods:                                                                                        
               (1)  the six-month period that precedes the                                                                      
     last day of the custodial term; or                                                                                         
               (2)  the six-month period that begins on the                                                                     
     minor's 18th birthday.                                                                                                     
          (c)  Rather than permit the extension of the                                                                          
     custodial   term,  the   minor  may   compel  immediate                                                                    
     distribution of  all or part of  the custodial property                                                                    
     by giving written notice to the custodian                                                                                  
               (1)  during the six-month period that begins                                                                     
     on  the  day  that  is  the last  day  of  the  current                                                                    
     custodial term; or                                                                                                         
               (2)  within 90 days after receiving the                                                                          
     custodian's notice under (b) of this section.                                                                              
          (d)  If a minor does not exercise the minor's                                                                         
     right  to   compel  distribution  under  (c)   of  this                                                                    
     section,  the  custodial  term  shall  be  extended  as                                                                    
     indicated in the custodian's notice  given under (b) of                                                                    
     this  section,  and  the  minor   may  not  compel  the                                                                    
     immediate  distribution  of custodial  property  before                                                                    
     the end of the custodial term, as extended.                                                                                
          (e)  A custodian may extend the custodial term                                                                        
     more than once under this section.                                                                                         
          (f)  In this section, "custodial term" means the                                                                      
     period of time  provided in or allowed  by this chapter                                                                    
     during  which   the  custodian  is  directed   to  hold                                                                    
     custodial  property until  the property  is transferred                                                                    
     to the minor.                                                                                                              
        * Sec. 25. AS 13.46.990(11) is amended to read:                                                                       
               (11)  "minor" means an individual who has                                                                        
     not  attained the  age of  18 years,  except that  when                                                                    
     used in reference to the  beneficiary for whose benefit                                                                    
     custodial  property  is held  or  to  be held,  "minor"                                                                    
     means an  individual who  has not  attained the  age at                                                                    
     which  the custodian  is  required under  AS 13.46.190,                                                                
     [AND]  13.46.195,  and  13.46.197     to  transfer  the                                                                
     custodial property to the beneficiary;"                                                                                    
                                                                                                                                
     Page 26, line 30:                                                                                                          
          Delete "AS 13.46.495(g);"                                                                                             
                                                                                                                                
MR. SHAFTEL  stated that this  amendment addresses a  valid point                                                               
that Senator McGuire raised during  the last hearing. She did not                                                               
want  to restrict  the  time  provisions that  allow  funds in  a                                                               
Uniform Transfer  to Minors  Act (UTMA) account  to stay  in that                                                               
account. He  said the  group of trust  attorneys agreed  with her                                                               
point and decided not to amend AS 13.46.195.                                                                                    
                                                                                                                                
The  amendment  adds  a  new  Sec. 13.46.197  to  deal  with  the                                                               
extension of the custodial term  by the custodian. It essentially                                                               
says that the extension can be any  period of time as long as the                                                               
beneficiary is given notice by  the custodian and given the right                                                               
to decline  the extension.  If the  beneficiary agrees,  the UTMA                                                               
account  continues for  a specified  extended  period. There  can                                                               
also be more than one extension.                                                                                                
                                                                                                                                
1:54:59 PM                                                                                                                    
CHAIR FRENCH highlighted that the  extension is always subject to                                                               
the right of  the beneficiary to object  and compel distribution,                                                               
provided he  or she  does so  at the time  that the  extension is                                                               
under consideration.                                                                                                            
                                                                                                                                
MR. SHAFTEL said that's correct.                                                                                                
                                                                                                                                
CHAIR  FRENCH removed  his objection  and announced  that without                                                               
further objection Amendment 2 was adopted.                                                                                      
                                                                                                                                
1:55:29 PM                                                                                                                    
CHAIR FRENCH moved Amendment 3, labeled 27-LS0819\D.3, and                                                                      
objected for discussion purposes. He asked Mr. Shaftel for an                                                                   
explanation.                                                                                                                    
                                                                                                                                
                          AMENDMENT 3                                                                                       
                                                                                                                                
     OFFERED IN THE SENATE                 BY SENATOR FRENCH                                                                    
     TO:  CSSB 165( ), Draft Version "D"                                                                                        
                                                                                                                                
     Page 1, line 3, following "Code;":                                                                                       
          Insert "relating to the appointment of trust                                                                        
     property;"                                                                                                               
                                                                                                                                
     Page 7, following line 5:                                                                                                  
          Insert new bill sections to read:                                                                                     
        "* Sec.  6. AS 13.36.157  is repealed  and reenacted                                                                
     to read:                                                                                                                   
          Sec. 13.36.157. Exercise of power of appointment.                                                                   
     (a) An authorized trustee  with unlimited discretion to                                                                    
     invade trust principal may appoint  part or all of that                                                                    
     principal to a  trustee of an appointed  trust for, and                                                                    
     only for the  benefit of, a current  beneficiary of the                                                                    
     invaded  trust  to  the   exclusion  of  other  current                                                                    
     beneficiaries. A  permissible appointee  of a  power of                                                                    
     appointment  held by  a  beneficiary  of the  appointed                                                                    
     trust is not considered  a beneficiary of the appointed                                                                    
     trust.  The successor  and  remainder beneficiaries  of                                                                    
     the  appointed  trust  may  be   one  or  more  of  the                                                                    
     successor  and remainder  beneficiaries of  the invaded                                                                    
     trust  to   the  exclusion   of  other   successor  and                                                                    
     remainder beneficiaries.                                                                                                   
          (b)  An authorized trustee exercising the power                                                                       
     under  (a) of  this section  may grant  a discretionary                                                                    
     power   of    appointment,   including    a   presently                                                                    
     exercisable  power  of  appointment, in  the  appointed                                                                    
     trust to  one or more  of the current  beneficiaries of                                                                    
     the invaded  trust, to the extent  that the beneficiary                                                                    
     who is  granted the power  to appoint is  authorized to                                                                    
     receive the  principal outright under the  terms of the                                                                    
     invaded trust.  A permissible appointee is  not limited                                                                    
     to the beneficiaries of the invaded trust.                                                                                 
          (c)  Under (a) and (b) of this section, if the                                                                        
     beneficiaries of  the invaded trust are  described by a                                                                    
     class,  the beneficiaries  of the  appointed trust  may                                                                    
     include present or future members of that class.                                                                           
          (d)  An authorized trustee with the power to                                                                          
     invade   trust   principal    but   without   unlimited                                                                    
     discretion may appoint part or  all of the principal of                                                                    
     the trust  to a  trustee of an  appointed trust  if the                                                                    
     current beneficiaries  of the  appointed trust  are the                                                                    
     same as the current  beneficiaries of the invaded trust                                                                    
     and the  successor and  remainder beneficiaries  of the                                                                    
     appointed  trust  are the  same  as  the successor  and                                                                    
     remainder  beneficiaries  of  the  invaded  trust.  The                                                                    
     shares of  the current  beneficiaries of  the appointed                                                                    
     trust must  be the  same as the  shares of  the current                                                                    
     beneficiaries of  the invaded trust, and  the shares of                                                                    
     the  successor  and   remainder  beneficiaries  of  the                                                                    
     appointed trust must  be the same as the  shares of the                                                                    
     successor  and remainder  beneficiaries of  the invaded                                                                    
     trust.                                                                                                                     
          (e)  If the authorized trustee exercises the                                                                          
     power under  (d) of this  section, the  appointed trust                                                                    
     must include the same  standard authorizing the trustee                                                                    
     to  distribute the  income or  invade the  principal of                                                                    
     the  appointed trust  as the  standard  in the  invaded                                                                    
     trust.  However, the  standard authorizing  the trustee                                                                    
     to  distribute the  income or  invade the  principal of                                                                    
     the  appointed  trust may  be  changed  if the  trustee                                                                    
     appoints to an appointed trust  that is a special needs                                                                    
     trust, a pooled trust, or a third-party trust.                                                                             
          (f)  If an authorized trustee exercises the power                                                                     
     under  (d)  and  (e)  of this  section  to  extend  the                                                                    
     duration of the appointed  trust beyond the duration of                                                                    
     the  invaded trust  for any  period  after the  invaded                                                                    
     trust  would   have  otherwise  terminated   under  the                                                                    
     provisions of  the invaded trust, the  appointed trust,                                                                    
     in addition to the language  required to be included in                                                                    
     the  appointed trust  under (e)  of  this section,  may                                                                    
     also  provide  an  additional  trustee  with  unlimited                                                                    
     discretion  to invade  the principal  of the  appointed                                                                    
     trust during  the extended  duration. The  trustee with                                                                    
     unlimited  discretion continues  to be  subject to  the                                                                    
     restrictions in (d) - (h) of this section.                                                                                 
          (g)  Under (d) - (f) of this section, if the                                                                          
     beneficiaries of  the invaded trust are  described by a                                                                    
     class,  the   beneficiaries  of  the   appointed  trust                                                                    
     include present or future members of that class.                                                                           
          (h)  If the authorized trustee exercises the                                                                          
     power  under (d)  -  (g)  of this  section  and if  the                                                                    
     invaded  trust  grants  a power  of  appointment  to  a                                                                    
     beneficiary  of the  trust,  the  appointed trust  must                                                                    
     grant  this  power  of  appointment  in  the  appointed                                                                    
     trust, and  the class  of permissible  appointees shall                                                                    
     be the same as in the invaded trust.                                                                                       
        *  Sec.  7.    AS 13.36 is  amended  by  adding  new                                                                  
     sections to read:                                                                                                          
          Sec. 13.36.158. Additional provisions relating to                                                                   
     exercise of a power of  appointment. (a) An exercise of                                                                  
     the power to invade  trust principal under AS 13.36.157                                                                    
     is the exercise of a special power of appointment.                                                                         
          (b)  The appointed trust to which an authorized                                                                       
     trustee appoints the assets of  the invaded trust under                                                                    
     AS 13.36.157 may  have a duration  that is  longer than                                                                    
     the duration set out in the invaded trust.                                                                                 
          (c)  If an authorized trustee has unlimited                                                                           
     discretion to  invade the principal  of a trust  and if                                                                    
     the same  trustee or another  trustee has a  power, not                                                                    
     dependent on unlimited  discretion, to invade principal                                                                    
     under  the  trust  instrument, the  authorized  trustee                                                                    
     having unlimited  discretion may exercise the  power of                                                                    
     appointment under AS 13.36.157(a) - (c).                                                                                   
          (d)  An authorized trustee may exercise the power                                                                     
     to  appoint  in  favor  of  an  appointed  trust  under                                                                    
     AS 13.36.157 whether or not there  is a current need to                                                                    
     invade principal under the terms of the invaded trust.                                                                     
          (e)  An authorized trustee exercising the power                                                                       
     under AS 13.36.157 - 13.36.159  has a fiduciary duty to                                                                    
     exercise  the power  in the  best interests  of one  or                                                                    
     more proper  objects of the  exercise of the  power and                                                                    
     as a prudent person would  exercise the power under the                                                                    
     prevailing  circumstances. The  authorized trustee  may                                                                    
     not exercise  the power under AS 13.36.157  - 13.36.159                                                                    
     if there  is substantial evidence of  a contrary intent                                                                    
     of the  settlor and it  cannot be established  that the                                                                    
     settlor would be likely to  have changed this intention                                                                    
     under  the  circumstances  existing  at  the  time  the                                                                    
     trustee  exercises the  power.  The  provisions of  the                                                                    
     invaded trust  may not be  viewed alone  as substantial                                                                    
     evidence  of a  contrary intent  of the  settlor unless                                                                    
     the invaded  trust expressly prohibits the  exercise of                                                                    
     the  power in  the  manner intended  by the  authorized                                                                    
     trustee.                                                                                                                   
          (f)  The provisions of AS 13.36.157 - 13.36.159                                                                       
     may not be construed to  abridge the right of a trustee                                                                    
     to appoint  property further in  trust under  the terms                                                                    
     of  the  governing  instrument   of  a  trust,  another                                                                    
     provision of  law, or common  law, or as directed  by a                                                                    
     court having jurisdiction over the trust.                                                                                  
          (g)  Nothing in AS 13.36.157 - 13.36.159 creates                                                                      
     or  implies  a  duty  to exercise  a  power  to  invade                                                                    
     principal.  An  inference  of impropriety  may  not  be                                                                    
     made, and liability is not  incurred, as a result of an                                                                    
     authorized trustee  not exercising the  power conferred                                                                    
     under AS 13.36.157.                                                                                                        
          (h)  A power authorized by AS 13.36.157 may be                                                                        
     exercised,    subject    to     the    provisions    of                                                                    
     AS 13.36.159(a),  unless  expressly prohibited  by  the                                                                    
     terms   of   the   governing  instrument.   A   general                                                                    
     prohibition  against amending  or revoking  the invaded                                                                    
     trust and  a provision  that constitutes  a spendthrift                                                                    
     clause do  not preclude the  exercise of a  power under                                                                    
     AS 13.36.157.                                                                                                              
          (i)  An authorized trustee may not exercise a                                                                         
     power authorized by AS 13.36.157 to                                                                                        
               (1)       reduce,   limit,   or    modify   a                                                                    
     beneficiary's    current   right    to   a    mandatory                                                                    
     distribution  of  income   or  principal,  a  mandatory                                                                    
     annuity  or unitrust  interest, a  right to  withdraw a                                                                    
     percentage of  the value  of the trust,  or a  right to                                                                    
     withdraw a  specified dollar  amount, if  the mandatory                                                                    
     right  has  come  into  effect   with  respect  to  the                                                                    
     beneficiary, but  the mandatory  right may  be reduced,                                                                    
     limited, or  modified during  any extended  duration of                                                                    
     the   trust;   however,   notwithstanding   the   other                                                                    
     provisions in this paragraph, but  subject to the other                                                                    
     limitations in AS 13.36.157  - 13.36.159, an authorized                                                                    
     trustee   may   exercise    a   power   authorized   by                                                                    
     AS 13.36.157 to  appoint to an appointed  trust that is                                                                    
     a  special needs  trust, a  pooled trust,  or a  third-                                                                    
     party trust;                                                                                                               
               (2)  decrease or indemnify against a                                                                             
     trustee's  liability   or  exonerate  a   trustee  from                                                                    
     liability  for  failure  to exercise  reasonable  care,                                                                    
     diligence,  and   prudence  unless  the   court  having                                                                    
     jurisdiction over the trust specifies otherwise;                                                                           
               (3)  eliminate a provision granting another                                                                      
     person the  right to remove  or replace  the authorized                                                                    
     trustee exercising the  power under AS 13.36.157 unless                                                                    
     a court  having jurisdiction  over the  trust specifies                                                                    
     otherwise;                                                                                                                 
               (4)  fix as binding and conclusive the value                                                                     
     of an  asset for purposes of  distribution, allocation,                                                                    
     or otherwise; or                                                                                                           
               (5)  jeopardize                                                                                                  
               (A)  the deduction or exclusion originally                                                                       
     claimed with  respect to a contribution  to the invaded                                                                    
     trust that qualified for the  annual exclusion under 26                                                                    
     U.S.C. 2503(b),  the marital deduction under  26 U.S.C.                                                                    
     2056(a)  or  26  U.S.C.   2523(a),  or  the  charitable                                                                    
     deduction under 26 U.S.C. 170(a),  26 U.S.C. 642(c), 26                                                                    
     U.S.C. 2055(a), or 26  U.S.C. 2522(a) (Internal Revenue                                                                    
     Code);                                                                                                                     
               (B)  the qualification of a transfer as a                                                                        
     direct skip  under 26 U.S.C. 2642(c)  (Internal Revenue                                                                    
     Code);                                                                                                                     
               (C)  the election to treat a corporation as                                                                      
     a  subchapter  S  corporation   under  26  U.S.C.  1362                                                                    
     (Internal Revenue Code); or                                                                                                
               (D)  another specific tax benefit for which                                                                      
     a contribution  originally qualified for  income, gift,                                                                    
     estate,  or generation-skipping  transfer tax  purposes                                                                    
     under 26 U.S.C. (Internal Revenue Code).                                                                                   
          (j)      Before   exercising   the   power   under                                                                    
     AS 13.36.157, an authorized  trustee shall consider the                                                                    
     tax implications of the exercise of the power.                                                                             
          (k)  An authorized trustee may not exercise a                                                                         
     power   described  in   AS 13.36.157  -   13.36.159  in                                                                    
     violation   of   the   limitations   on   validity   in                                                                    
     AS 34.27.051  or  34.27.100,  or  the  restrictions  on                                                                    
     exercising certain  powers in AS 13.36.153  by trustees                                                                    
     who are  not independent. A violation  voids the entire                                                                    
     exercise of  the power unless the  exercise is modified                                                                    
     to correct the violation.                                                                                                  
          (l)  Unless a court having jurisdiction over the                                                                      
     trust directs otherwise, an  authorized trustee may not                                                                    
     exercise a  power authorized by AS 13.36.157  to change                                                                    
     the  provisions  regarding  the  determination  of  the                                                                    
     compensation  of a  trustee. The  commissions or  other                                                                    
     compensation  payable to  the trustees  of the  invaded                                                                    
     trust may  continue to be  paid to the trustees  of the                                                                    
     appointed trust during the term  of the appointed trust                                                                    
     and shall be  determined in the same manner  as for the                                                                    
     invaded trust.                                                                                                             
          (m)  A trustee may not receive a payment, a                                                                           
     commission,  or   other  compensation   for  appointing                                                                    
     property from  the invaded trust to  an appointed trust                                                                    
     under   AS 13.36.157.  However,   a   trustee  may   be                                                                    
     compensated  at  an  hourly rate  for  the  time  spent                                                                    
     considering and  implementing the  exercise of  a power                                                                    
     to appoint.                                                                                                                
          (n)  Unless the invaded trust expressly provides                                                                      
     otherwise, the  provisions in AS 13.36.157  - 13.36.159                                                                    
     apply to                                                                                                                   
               (1)  a trust, whether testamentary or inter                                                                      
     vivos, governed by the laws  of this state, including a                                                                    
     trust whose governing law has  been changed to the laws                                                                    
     of this state; and                                                                                                         
               (2)  a trust that has a trustee who is an                                                                        
     individual domiciled  in this state, or  a trustee that                                                                    
     is  an entity  having an  office  in this  state, if  a                                                                    
     majority  of  the trustees  select  this  state as  the                                                                    
     location for  the primary  administration of  the trust                                                                    
     and the selection  is made by an  instrument in writing                                                                    
     that is  signed and acknowledged  by a majority  of the                                                                    
     trustees;  the  instrument  exercising  this  selection                                                                    
     shall be kept with the records of the invaded trust.                                                                     
          (o)  A power to pay principal that includes words                                                                     
     such  as  "best  interests," "welfare,"  "comfort,"  or                                                                    
     "happiness"   is  not   considered   a  limitation   or                                                                    
     modification of the right to distribute principal.                                                                         
          (p) In this section, "internal revenue code"                                                                          
     means the  Internal Revenue Code  of the  United States                                                                    
     (26 U.S.C.) as it exists  on the effective date of this                                                                    
     Act and as it is amended from time to time;                                                                              
          Sec. 13.36.159. Implementation of power of                                                                          
     appointment.   (a)   Unless  the   authorized   trustee                                                                  
     provides otherwise, the appointment of                                                                                     
               (1)  all of the assets comprising the                                                                            
     principal of  the invaded trust  to an  appointed trust                                                                    
     includes subsequently discovered  assets of the invaded                                                                    
     trust and undistributed principal  of the invaded trust                                                                    
     acquired after the appointment to the appointed trust;                                                                     
               (2)  a part but not all of the assets                                                                            
     comprising  the principal  of the  invaded trust  to an                                                                    
     appointed   trust   may    not   include   subsequently                                                                    
     discovered  assets belonging  to the  invaded trust  or                                                                    
     principal  paid to  or acquired  by  the invaded  trust                                                                    
     after  the appointment  to the  appointed trust;  those                                                                    
     subsequently  discovered assets  remain  the assets  of                                                                    
     the invaded trust.                                                                                                         
          (b)  The exercise of the power to appoint to an                                                                       
     appointed trust  under AS 13.36.157 shall  be evidenced                                                                    
     by an instrument in writing  that is signed, dated, and                                                                    
     acknowledged  by the  authorized trustee.  The exercise                                                                    
     of the  power is  effective 30 days  after the  date of                                                                    
     service of the  instrument as specified in  (d) of this                                                                    
     section, unless the persons  entitled to notice consent                                                                    
     in writing to a sooner effective date.                                                                                     
          (c)  An authorized trustee may exercise the power                                                                     
     authorized by  AS 13.36.157 without the consent  of the                                                                    
     settlor  or a  person interested  in the  invaded trust                                                                    
     and  without  court  approval. However,  an  authorized                                                                    
     trustee may seek court approval  for the exercise. When                                                                    
     seeking  court approval,  notice shall  be sent  to all                                                                    
     qualified beneficiaries.                                                                                                   
          (d)  A copy of the invaded trust, the appointed                                                                       
     trust, and  the instrument  exercising the  power shall                                                                    
     be delivered to                                                                                                            
               (1)  the settlor, if living, of the invaded                                                                      
     trust;                                                                                                                     
               (2)  a person having the right, under the                                                                        
     terms of  the invaded trust,  to remove or  replace the                                                                    
     authorized   trustee   exercising   the   power   under                                                                    
     AS 13.36.157; and                                                                                                          
               (3)  a qualified beneficiary or a person who                                                                     
     may represent and bind  the qualified beneficiary under                                                                    
     AS 13.06.120.                                                                                                              
          (e)  Notice under (d) of this section to a                                                                            
     qualified beneficiary  is not  required if  the settlor                                                                    
     has  exempted  the  authorized trustee  from  providing                                                                    
     notification  or  information  to  beneficiaries  under                                                                    
     AS 13.36.080(b).  Notice  under  (d)  of  this  section                                                                    
     shall be provided under AS 13.06.110.                                                                                      
          (f)  The instrument exercising the power must                                                                         
     state whether the appointment is  of all or part of the                                                                    
     assets comprising  the principal  of the  invaded trust                                                                    
     and,  if  a part,  the  approximate  percentage of  the                                                                    
     value of  the principal  of the  invaded trust  that is                                                                    
     the subject of the appointment.                                                                                            
          (g)  A person entitled to notice under (d) of                                                                         
     this section  may object to  the trustee's  exercise of                                                                    
     the power  under AS 13.36.157 - 13.36.159  by serving a                                                                    
     written notice  of objection on the  trustee before the                                                                    
     effective  date  of  the exercise  of  the  power.  The                                                                    
     failure to object does not constitute consent.                                                                             
          (h)  The receipt of a copy of the instrument                                                                          
     exercising the  power does  not, before  the expiration                                                                    
     of the  limitation period in AS 13.36.100  with respect                                                                    
     to a  report disclosing the exercise,  affect the right                                                                    
     of a  qualified beneficiary  to object to  the exercise                                                                    
     of  the power  under  AS 13.36.157 and  to request  the                                                                    
     court to modify or to reverse the exercise.                                                                                
          (i)  A copy of the instrument exercising the                                                                          
     power shall  be kept  with the  records of  the invaded                                                                    
     trust.                                                                                                                     
        * Sec.  8. AS 13.36.215 is  amended by adding  a new                                                                  
     subsection to read:                                                                                                        
          (b)  In AS 13.36.157 - 13.36.159,                                                                                     
               (1)   "appointed trust" means  an irrevocable                                                                    
     trust  that receives  principal from  an invaded  trust                                                                    
     under AS 13.36.157,  including a  new trust  created by                                                                    
     the settlor  of the invaded  trust or by  the trustees,                                                                    
     acting in that capacity, of the invaded trust;                                                                             
               (2)  "authorized  trustee" means, with regard                                                                    
     to an  invaded trust, a  trustee with the  authority to                                                                    
     pay trust  principal to or  for a  current beneficiary;                                                                    
     in  this  paragraph,  "trustee"   does  not  include  a                                                                    
     settlor or  a beneficiary  to whom income  or principal                                                                    
     must be paid, currently or in  the future, or who is or                                                                    
     will  become  eligible  to receive  a  distribution  of                                                                    
     income or  principal in the  discretion of  the trustee                                                                    
     other than  by the exercise  of a power  of appointment                                                                    
     held in a nonfiduciary capacity;                                                                                           
               (3)   "current  beneficiary"  means a  person                                                                    
     or, with regard to a class  of persons, a person who is                                                                    
     or  will  become a  member  of  the  class, to  whom  a                                                                    
     trustee  may  distribute  principal when  exercising  a                                                                    
     power under AS 13.36.157;                                                                                                  
               (4)    "invade"  means pay  directly  to  the                                                                    
     beneficiary of  a trust  or apply to  the benefit  of a                                                                    
     beneficiary;                                                                                                               
               (5)   "invaded  trust"  means an  irrevocable                                                                    
     inter  vivos or  testamentary  trust  the principal  of                                                                    
     which is appointed under AS 13.36.157;                                                                                     
               (6)   "pooled trust" means a  trust described                                                                    
     in   42   U.S.C.    1396p(d)(4)(C)   that   meets   the                                                                    
     requirements for  a pooled trust under  the regulations                                                                    
     of  this state  relating to  the Medicaid  treatment of                                                                    
     trusts;                                                                                                                    
               (7)    "principal"  means  the  assets  of  a                                                                    
     trust,  including accrued  and accumulated  income, but                                                                    
     excluding  income  that  is currently  required  to  be                                                                    
     distributed;                                                                                                               
               (8)   "special  needs  trust"  means a  trust                                                                    
     under   42  U.S.C.   1396p(d)(4)(A)   that  meets   the                                                                    
     requirements  for  a  special  needs  trust  under  the                                                                    
     regulations  of this  state  relating  to the  Medicaid                                                                    
     treatment of trusts;                                                                                                       
               (9)   "third-party trust" means a  trust that                                                                    
     is                                                                                                                         
               (A)   established by a  third party  with the                                                                    
     assets of  the third party to  provide for supplemental                                                                    
     needs for a  person eligible when the  trust is created                                                                    
     or at a future time  for needs-based public assistance;                                                                    
     and                                                                                                                        
               (B)  exempt from the provisions of the                                                                           
     regulations  of this  state  relating  to the  Medicaid                                                                    
     treatment of trusts;                                                                                                       
               (10)  "unlimited discretion" means the                                                                           
     unlimited  right to  distribute principal  that is  not                                                                    
     modified in any manner."                                                                                                   
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 27, line 3:                                                                                                           
          Delete "sec. 31"                                                                                                      
          Insert "sec. 34"                                                                                                      
                                                                                                                                
     Page 27, line 5:                                                                                                           
          Delete "sec. 31"                                                                                                      
          Insert "sec. 34"                                                                                                      
                                                                                                                                
     Page 27, following line 13:                                                                                                
          Insert a new subsection to read:                                                                                      
          "(b)  AS 13.36.157, repealed and reenacted by                                                                         
     sec.  6  of  this   Act,  AS 13.36.158  and  13.36.159,                                                                    
     enacted  by sec.  7 of  this Act,  and AS 13.36.215(5),                                                                    
     enacted by  sec. 8 of this  Act, apply to a  trust that                                                                    
     exists before, on, or after  the effective date of this                                                                    
     Act."                                                                                                                      
                                                                                                                                
     Reletter the following subsection accordingly.                                                                             
                                                                                                                                
     Page 27, line 14:                                                                                                          
          Delete "sec. 28"                                                                                                      
          Insert "sec. 31"                                                                                                      
                                                                                                                                
     Page 27, line 20:                                                                                                          
          Delete "sec. 31"                                                                                                      
          Insert "sec. 34"                                                                                                      
                                                                                                                                
     Page 27, line 21:                                                                                                          
          Delete "sec. 35"                                                                                                      
          Insert "sec. 38"                                                                                                      
                                                                                                                                
                                                                                                                                
MR. SHAFTEL deferred to Ms. Chapman for an explanation.                                                                         
                                                                                                                                
1:56:12 PM                                                                                                                    
BETH CHAPMAN, Attorney  at Law, stated that she  has practiced in                                                               
Juneau  for  the  past  24  years,  specializing  in  trusts  and                                                               
estates. She  explained that the  proposed amendment  revises the                                                               
current statute  that codifies a  trustee's common law  powers to                                                               
make amendments  to trusts in  certain circumstances.  Alaska was                                                               
the second  state to  adopt such a  provision, following  the New                                                               
York   model.  Since   then  13   states  have   adopted  similar                                                               
provisions.  Last year  the New  York  Legislature amended  their                                                               
statute, and this provision models that change.                                                                                 
                                                                                                                                
The most  significant changes relate to  notice to beneficiaries.                                                               
Under the  current statute, a  trustee who decides to  extend the                                                               
term of  a trust has  no statutory requirement to  provide notice                                                               
of that  extension to the beneficiaries.  This provision requires                                                               
that notice  and that the opportunity  to object be given  to the                                                               
beneficiaries.  The   objection  itself  will  not   prevent  the                                                               
extension from going forward, but  the beneficiary would have the                                                               
option  to  seek  a  court   order  regarding  the  extension  or                                                               
modification.                                                                                                                   
                                                                                                                                
The  other changes  relate  to when  the  trustee's authority  is                                                               
limited  by  a  standard.  For   example,  many  trusts  limit  a                                                               
trustee's authority to making distributions  to a beneficiary for                                                               
health,  education, support  and maintenance.  Under the  current                                                               
law, it's unclear  whether that standard could be  changed and to                                                               
what  extent the  beneficiary's interest  in the  trust could  be                                                               
limited. This provision provides that  when extending the term of                                                               
the trust  the trustee  must include  the same  beneficiaries and                                                               
the same  standard for distributions,  unless the trust  is being                                                               
changed to protect a beneficiary's rights to public assistance.                                                                 
                                                                                                                                
2:00:53 PM                                                                                                                    
SENATOR COGHILL  asked if  there had  been court  challenges when                                                               
somebody tried to exercise this unlimited authority.                                                                            
                                                                                                                                
MS. CHAPMAN replied not to her knowledge.                                                                                       
                                                                                                                                
CHAIR FRENCH asked for a  layman's description of the term "power                                                               
of appointment" as it's used in the bill.                                                                                       
                                                                                                                                
MS.  CHAPMAN responded  that in  this context  it means  that the                                                               
trustee has the authority to decide  who and how assets are to be                                                               
received  from  a  trust,  subject  to  the  limitations  on  the                                                               
authority stated in the trust.                                                                                                  
                                                                                                                                
SENATOR  COGHILL asked  if court  challenges  made this  language                                                               
necessary.                                                                                                                      
                                                                                                                                
MS.  CHAPMAN replied  she was  not  aware of  any challenges.  In                                                               
fact, it will probably minimize  challenges because there will be                                                               
specific  notice  provisions  and  time  limits  for  giving  the                                                               
beneficiary the right  to object. Also, it lays  out the standard                                                               
for objecting to the trustee's exercise of the authority.                                                                       
                                                                                                                                
SENATOR COGHILL said his expectation  is that plenty of notice is                                                               
given and that  the explanation of the rights  and authorities is                                                               
clear.                                                                                                                          
                                                                                                                                
MS.  CHAPMAN  said  30-day  notice  is  required,  which  is  the                                                               
standard when notices  are given in other trusts,  such as rights                                                               
of withdrawals.                                                                                                                 
                                                                                                                                
CHAIR FRENCH  asked if there  are trust attorneys that  would not                                                               
support these provisions.                                                                                                       
                                                                                                                                
MS.  CHAPMAN replied  this has  been discussed  among the  estate                                                               
planning  community for  years and  each  year additional  states                                                               
adopt   these   provisions.    This   builds   flexibility   into                                                               
custodianship accounts thereby reducing the  need to go to court,                                                               
which can be  costly. She concluded that this  was an improvement                                                               
to the  current statute because  it provides more  protection for                                                               
beneficiaries and a "roadmap" for  attorneys who may not practice                                                               
in this area.                                                                                                                   
                                                                                                                                
2:05:50 PM                                                                                                                    
CHAIR  FRENCH removed  his objection  and announced  that without                                                               
further objection, Amendment 3 was adopted                                                                                      
                                                                                                                                
CHAIR  FRENCH  closed  public  testimony   and  held  SB  165  in                                                               
committee.                                                                                                                      
                                                                                                                                

Document Name Date/Time Subjects
SB 165 amendment 1.pdf SJUD 2/15/2012 1:30:00 PM
SB 165
SB 165 amendment 2.pdf SJUD 2/15/2012 1:30:00 PM
SB 165
SB 165 Amendment 3.pdf SJUD 2/15/2012 1:30:00 PM
SB 165
SB 165 memo trustees power to appoint.pdf SJUD 2/15/2012 1:30:00 PM
SB 165
SB 165 memo uniform transfer to minors.pdf SJUD 2/15/2012 1:30:00 PM
SB 165
SB 186 Amendment I.1.pdf SJUD 2/15/2012 1:30:00 PM
SB 186
SB 186 Amendment I.2.pdf SJUD 2/15/2012 1:30:00 PM
SB 186