Legislature(2009 - 2010)BELTZ 105 (TSBldg)

02/04/2010 09:00 AM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 217 GUARANTEED REVENUE BONDS FOR VETERANS TELECONFERENCED
Moved SB 217 Out of Committee
*+ SB 216 GRANTS TO DISASTER VICTIMS TELECONFERENCED
Moved SB 216 Out of Committee
*+ SB 63 TRANSFER RESTRICTIONS ON TRUSTS TELECONFERENCED
Heard & Held
             SB  63-TRANSFER RESTRICTIONS ON TRUSTS                                                                         
                                                                                                                                
9:45:46 AM                                                                                                                    
CHAIR  MENARD  announced  the  next matter  to  come  before  the                                                               
committee would be SB 63.                                                                                                       
                                                                                                                                
SENATOR MEYER  moved to adopt  the proposed  committee substitute                                                               
CS for  SB 63,  labeled 26-LS0317\R, as  the working  document of                                                               
the committee.   There being  no objection, version R  was before                                                               
the committee.                                                                                                                  
                                                                                                                                
ESTHER CHA, staff to Senator McGuire,  sponsor of SB 63, read the                                                               
following statement:                                                                                                            
                                                                                                                                
     The  climate for  trust and  estate planning  is highly                                                                    
     competitive, and the trust  business is a multi-billion                                                                    
     dollar sector  that often crosses state  lines in order                                                                    
     to take advantage of more  attractive state trust laws.                                                                    
     In 1997, Alaska  became the first state  to establish a                                                                    
     law that allows a person  to form an irrevocable trust,                                                                    
     be  a discretionary  beneficiary of  the trust  and, if                                                                    
     the trust  has a spendthrift clause,  protect the trust                                                                    
     assets from the settlor's creditors.                                                                                       
                                                                                                                                
9:47:21 AM                                                                                                                    
     To give a little  background, I'll summarize the aspect                                                                    
     of trusts to  which this bill refers.  In trusts, there                                                                    
     are three  parties: a  settlor also  known as  a trust-                                                                    
     maker, grantor, or testator; the  trustee, which can be                                                                    
     an  individual or  an  institution; and  beneficiaries.                                                                    
     The settlor designates whether or  not a beneficiary is                                                                    
     discretionary,    which   means    that   payment    of                                                                    
     distributions is determined based  on the discretion of                                                                    
     the  trustee instead  of the  settlor stating  how much                                                                    
     and  how  often  payments  will  be  distributed.  With                                                                    
     discretionary  beneficiaries,  trustees  may  be  given                                                                    
     standards  by which  to  exercise  discretion e.g.  the                                                                    
     HEMS  or  Health,  Education, Management,  and  Support                                                                    
     standard.  If the trust  has a spendthrift provision, a                                                                    
     creditor  cannot   force  the  trustee  to   pay  money                                                                    
     directly to  the creditor.  Instead, the  creditor must                                                                    
     wait until the  trustee pays out the  distribution to a                                                                    
     beneficiary, at  which time the creditor  can seize the                                                                    
     assets.                                                                                                                    
                                                                                                                                
     Alaska  established  in 1997  that  assets  in a  trust                                                                    
     would  be protected  from a  settlor's creditors  if he                                                                    
     designates  himself  as  a  discretionary  beneficiary,                                                                    
     provided that  he has no current  claims pending. Since                                                                    
     Alaska  enacted  this  statute, numerous  other  states                                                                    
     have  enacted  similar  statutes.  At  present,  twelve                                                                    
     states  allow  this type  of  trust.   SB  63  upgrades                                                                    
     Alaska's  trust  statute  by adopting  provisions  that                                                                    
     have been  adopted by other states.  Therefore, without                                                                    
     changes  in legislation,  Alaska would  not be  able to                                                                    
     maintain its position at the forefront.                                                                                    
          This bill provides the following amendments:                                                                          
        · It clarifies the burden of proof which a creditor                                                                     
          must meet to establish that a transfer in trust                                                                       
         was done with the intent to defraud a creditor                                                                         
                                                                                                                                
        · Clarifies that a spendthrift provision will apply                                                                     
         to a trust if distributions are made under the                                                                         
         exercise of discretion by a trustee who is not                                                                         
          the settler, whether or not the exercise of the                                                                       
          discretion is governed by the standard                                                                                
                                                                                                                                
        · Provides that the spendthrift provision in a                                                                          
          trust will apply even though the trustee may                                                                          
          distribute income or principal to the settlor to                                                                      
          pay income taxes                                                                                                      
                                                                                                                                
        · Clarifies that a beneficiary's interest in a                                                                          
          trust, whether or not vested, is not considered a                                                                     
          factor or economic circumstance in the division                                                                       
          of property subject to divorce                                                                                        
      These changes in SB 63 were brought to our office's                                                                       
     attention by experts in the probate and trust field.                                                                       
     SB 63  is part  of an ongoing  effort to  modernize our                                                                    
     trust  laws and  by doing  so  (1) to  create jobs  and                                                                    
     revenue,  (2)  to diversify  our  economy,  and (3)  to                                                                    
     continue  making Alaska  attractive  to trust  business                                                                    
     and investment.                                                                                                            
                                                                                                                                
9:50:35 AM                                                                                                                    
DOUGLAS  BLATTMACHR, President,  Alaska Trust  Company, spoke  in                                                               
support  of SB  63. He  said Alaska  Trust Company  is constantly                                                               
trying  to  update trust  laws  to  keep  them  the best  in  the                                                               
country,    bringing    substantial   assets    and    employment                                                               
opportunities to Alaskans.                                                                                                      
                                                                                                                                
9:52:04 AM                                                                                                                    
SENATOR PASKVAN  said he  wanted to make  sure he  understood the                                                               
difference between  the original  bill and  committee substitute:                                                               
(3)(F) was removed  from Section 1 of the  original bill [Version                                                               
A]  so that  in the  committee  substitute [Version  E] what  was                                                               
section (3)(G)  is now  section (3)(F). He  asked for  the reason                                                               
for the removal of 3(F) from [Version A].                                                                                       
                                                                                                                                
CHAIR MENARD pointed out that section (3) is on page 3.                                                                         
                                                                                                                                
MS. CHA  pointed out  that a  house companion  bill moved  out of                                                               
judiciary  yesterday. She  explained that  some of  the committee                                                               
substitute is a reflection of changes made in the house.                                                                        
                                                                                                                                
DAVID  SHAFTEL,  Shaftel  Law  Offices,  said  he  is  a  private                                                               
attorney  and a  member of  an  informal group  of attorneys  and                                                               
trust officers that  has been working with  the Legislature since                                                               
the late  1990's on  state and  trust legislation.   He  said the                                                               
Alaska  Legislature  has  passed  a number  of  bills  that  have                                                               
improved  this area  of law  for  Alaska residents  and that  the                                                               
statutes  are  often  used  by non-residents  who  want  to  take                                                               
advantage of Alaska's improved law in this area.                                                                                
                                                                                                                                
9:55:26 AM                                                                                                                    
MR.  SHAFTEL said  he  does  not have  a  copy  of the  committee                                                               
substitute [Version E].                                                                                                         
                                                                                                                                
SENATOR PASKVAN  said the provision  labeled as  [Section (3)(F),                                                               
subparagraph  (i)   in  Version  A]  addressed   the  "reasonable                                                               
definite  standard as  described in  26 CFR1.674(b)-1(b)(5)"  and                                                               
[Section  (3)(F),  subparagraph  (ii)  in  Version  A]  read  "an                                                               
ascertainable  standard relating  to health,  education, support,                                                               
or maintenance as described in 26  U.S.C. 2041(b)." He said he is                                                               
wondering  why  this  section   [Section  1(3)(F)(i)and  (ii)  in                                                               
Version A] is no longer in committee substitute [Version E].                                                                    
                                                                                                                                
MR. SHAFTEL  said the  house bill  combines [Section  1(3)(E) and                                                               
(F) from   Version A]  into a  simpler statement. He  said people                                                               
who have  worked on SB  63, including himself, must  have decided                                                               
it  would  be  simpler  to  use this  language  rather  than  the                                                               
references to the federal regulations and code.                                                                                 
                                                                                                                                
9:57:45 AM                                                                                                                    
SENATOR PASKVAN  said [Section 1(3)(E)  of Version A]  reads "the                                                               
exercise of  discretion by  a trustee  who is  not a  settlor and                                                               
that are  not governed by  a standard". The  committee substitute                                                               
removes the conjunctive term "and"  and says, "whether or not the                                                               
exercise of discretion  is governed by a standard".  He asked why                                                               
"and"  was  changed to  "whether  or  not  it  is governed  by  a                                                               
standard."                                                                                                                      
                                                                                                                                
MR. SHAFTEL asked for clarification.                                                                                            
                                                                                                                                
SENATOR PASKVAN said that on page  3, line 2 of the original bill                                                               
[Version A], it says, "and that  are not governed by a standard."                                                               
He said  he assumed the  phrase is  addressing the exercise  of a                                                               
trustee who  is not  a settlor  "and that are  not governed  by a                                                               
standard" as to the exercise of discretion.                                                                                     
                                                                                                                                
MR. SHAFTEL replied, "Correct."                                                                                                 
                                                                                                                                
SENATOR  PASKVAN  said  the   committee  substitute  [Version  E]                                                               
eliminates the conjunctive  ["and"] and says "whether  or not the                                                               
exercise of discretion is governed by a standard."                                                                              
                                                                                                                                
MR.  SHAFTEL  said  [Section  1(3)(F)   of  Version  A],    which                                                               
referenced   two   statutory   and   regulatory   standards   was                                                               
eliminated.  He  explained  that   the  two  concepts  are  being                                                               
combined into one simple subsection  that says the distributions,                                                               
that are made  under the exercise of discretion by  a trustee who                                                               
is not the settlor, can be  governed by a standard but don't have                                                               
to be  governed by a  standard - either way,  [distributions] are                                                               
acceptable. This type of trust allows  the assets in the trust to                                                               
be protected  from the creditors of  the settlor. SB 63  has been                                                               
simplified  and  the two  concepts  have  been incorporated  into                                                               
[Section 1(3)(E) of Version E].                                                                                                 
                                                                                                                                
10:00:59 AM                                                                                                                   
MR. SHAFTEL  reiterated that  the meaning  has not  been changed.                                                               
The  original bill  [Version  A] said  the  trust still  protects                                                               
assets from the creditor even  though the trustee is not governed                                                               
by a standard. It then says  that assets are still protected from                                                               
the creditors of  the settler even though the  trustee is subject                                                               
to a  standard. [Section  1(3) (E) and  (3)(F)] were  combined to                                                               
say this  trust is  protected from the  creditors of  the settler                                                               
"whether or not"  the trustee is governed by a  standard. It is a                                                               
simplification of language.                                                                                                     
                                                                                                                                
10:02:09 AM                                                                                                                   
SENATOR PASKVAN  asked if  it was correct  he was  establishing a                                                               
method  by which  a creditor  can't have  access to  monies of  a                                                               
settlor in a trust that has a trustee who is another person.                                                                    
                                                                                                                                
MR.  SHAFTEL replied  that was  correct and  explained that  this                                                               
type of trust was initially  approved by the Legislature in 1997.                                                               
He   said  the   Legislature  has   enacted  various   additional                                                               
provisions  to strengthen  and increase  the workability  of this                                                               
type  of  trust  about  six  different times.  With  SB  63,  the                                                               
Legislature is considering another  slight improvement. This kind                                                               
of trust  was always set  up to  have an independent  trustee who                                                               
had  absolute   discretion  as   to  whether   or  not   to  make                                                               
distributions. Several  states have  enacted laws that  allow the                                                               
trustee  of this  type  of trust  to be  subject  to a  standard,                                                               
meaning directions  or guidelines.  These other states  have said                                                               
this trust  will work  even though  the trustee  is subject  to a                                                               
standard. SB63 would  make Alaska's trusts subject  to a standard                                                               
as  well  and  still  protect   the  assets  from  the  settlor's                                                               
creditors.                                                                                                                      
                                                                                                                                
10:06:06 AM                                                                                                                   
MR.  SHAFTEL said  the language  being discussed  is a  couple of                                                               
different ways  of stating  the concept that  the trustee  can be                                                               
subject to a standard.                                                                                                          
                                                                                                                                
10:07:54 AM                                                                                                                   
CHAIR MENARD  said the  committee can  continue to  become better                                                               
informed  but she  felt it  would  be better  if Senator  McGuire                                                               
could help clean up SB 63 for better understanding.                                                                             
                                                                                                                                
SENATOR  PASKVAN agreed  and asked  Mr. Shaftel  what [Section  1                                                               
(3)(E)] does beyond [Section 1  (b)(1)] which addresses the clear                                                               
and convincing standard  with the settlor regarding  an intent to                                                               
defraud.                                                                                                                        
                                                                                                                                
MR.  SHAFTEL  replied that  whenever  one  is required  to  prove                                                               
fraud, the  standard burden of  proof is by clear  and convincing                                                               
evidence. Alaska's statute failed  to address that subject; other                                                               
states'  statutes  point  it out  expressly  in  their  statutes.                                                               
[Section 1 (b)(1)] is making it clear in the statue.                                                                            
                                                                                                                                
10:10:23 AM                                                                                                                   
SENATOR  PASKVAN  referred again  to  [Section  1(3)(E) and  (F),                                                               
Version  E]  and asked  what  is  being  advanced, who  is  being                                                               
protected and who is at risk.                                                                                                   
                                                                                                                                
MR.  SHAFTEL replied  that  this  type of  trust  is designed  to                                                               
provide two  benefits to Alaska residents  and non-residents that                                                               
want to use  it. One, it allows  a person who is  solvent and has                                                               
adequate  assets to  put assets  into irrevocable  trust for  the                                                               
benefit of that  person and his or her family,  assuming there is                                                               
no  intent to  defraud creditors.  He noted  that a  person could                                                               
always do  this for family, however,  as of 1997, the  creator of                                                               
the trust could also be a  beneficiary of the trust. He explained                                                               
that the trustee,  who is not the creator of  the trust, can have                                                               
discretion to  make distributions to  the creator as well  as the                                                               
creator's family.                                                                                                               
                                                                                                                                
MR. SHAFTEL  said the second benefit  is that the creator  of the                                                               
trust can use the trust to  minimize the amount of federal estate                                                               
taxes that  will have  to be  paid upon  his or  her death.  If a                                                               
person creates the  same type of trust, but is  not a beneficiary                                                               
of the trust,  and makes gifts to that trust,  then those assets,                                                               
plus  the  growth  of  those  assets,  are  not  taxed  upon  the                                                               
creator's death.  Because this  type of trust  is subject  to the                                                               
discretion of  a trustee, who is  not the person who  created the                                                               
trust, experts  said it should  not be included in  the creator's                                                               
gross estate  tax, under the federal  estate tax, when he  or she                                                               
dies.  Mr. Shaftel  said the  IRS  just issued  a private  letter                                                               
ruling approving that.                                                                                                          
                                                                                                                                
10:14:43 AM                                                                                                                   
MR. SHAFTEL summarized the second  benefit of this kind of trust:                                                               
it  allows  people  to  make  gifts  for  their  family  into  an                                                               
irrevocable  trust,  which  will  not be  taxed  when  they  die.                                                               
However,  if they  need  the funds  themselves,  the trustee  can                                                               
distribute the funds  back to them. He said it  is a very helpful                                                               
estate  planning  approach  for   Alaska  families  and  is  very                                                               
popular.                                                                                                                        
                                                                                                                                
SENATOR PASKVAN thanked Mr. Shaftel  and said he understands more                                                               
clearly now. He said some clean  up between the original bill and                                                               
the committee substitute is needed.                                                                                             
                                                                                                                                
CHAIR MENARD  said she will  hear SB  63 again after  flushing it                                                               
out with Senator McGuire and the involved attorneys.                                                                            
                                                                                                                                
10:16:26 AM                                                                                                                   
SENATOR MEYER  asked if  a person's  estate has  to be  a certain                                                               
value before a trust makes sense.                                                                                               
                                                                                                                                
MR. SHAFTEL said not necessarily;  it depends upon the purpose of                                                               
the  trust and  the  needs of  the person  creating  it. He  said                                                               
trusts  are  often  created  with  $25,000  or  $50,000  to  help                                                               
children or  grandchildren go through college.  He mentioned that                                                               
a temporary repeal  of the federal estate tax is  in place but if                                                               
Congress does  not act, any person  who dies who has  more than 1                                                               
million assets will be subject to federal estate tax in 2011.                                                                   
                                                                                                                                
[SB 63 was held in committee.]                                                                                                  

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