Legislature(2013 - 2014)BELTZ 105 (TSBldg)

04/04/2013 02:30 PM Senate JUDICIARY


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02:37:09 PM Start
02:37:15 PM SB65
03:25:58 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 65 RETIREMENT PLANS; ROTH IRAS; PROBATE TELECONFERENCED
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 4, 2013                                                                                          
                           2:37 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator John Coghill, Chair                                                                                                     
Senator Lesil McGuire, Vice Chair                                                                                               
Senator Fred Dyson                                                                                                              
Senator Donald Olson                                                                                                            
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 65                                                                                                              
"An  Act relating  to property  exemptions for  retirement plans,                                                               
individual  retirement amending  Rule 64,  Alaska Rules  of Civil                                                               
Procedure, and  Rule 301(a), Alaska  Rules of accounts,  and Roth                                                               
IRAs;  relating  to  transfers of  individual  retirement  plans;                                                               
relating  to  Evidence."  the rights  of  judgment  creditors  of                                                               
members of  limited liability companies  and partners  of limited                                                               
liability  partnerships; relating  to the  Uniform Probate  Code,                                                               
including  pleadings, orders,  liability, and  notices under  the                                                               
Uniform Probate  Code and  the Alaska  Principal and  Income Act,                                                               
the  appointment of  trust property,  the Alaska  Uniform Prudent                                                               
Investor Act, co-trustees, trust  protectors, and trust advisors;                                                               
relating to the Alaska Principal  and Income Act; relating to the                                                               
Alaska  Uniform   Transfers  to  Minors  Act;   relating  to  the                                                               
disposition of  human remains;  relating to  the tax  on insurers                                                               
for life insurance policies; relating  to insurable interests for                                                               
certain   insurance  policies;   relating   to  restrictions   on                                                               
transfers   of  trust   interests;   relating  to   discretionary                                                               
interests  in  irrevocable  trusts;  relating  to  the  community                                                               
property of married persons; and                                                                                                
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  65                                                                                                                  
SHORT TITLE: RETIREMENT PLANS; ROTH IRAS; PROBATE                                                                               
SPONSOR(s): SENATOR(s) COGHILL                                                                                                  
                                                                                                                                
02/27/13       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/27/13       (S)       L&C, JUD                                                                                               
03/21/13       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/21/13       (S)       Heard & Held                                                                                           
03/21/13       (S)       MINUTE(L&C)                                                                                            
03/26/13       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/26/13       (S)       Moved CSSB  65(L&C) Out of Committee                                                                   
03/26/13       (S)       MINUTE(L&C)                                                                                            
03/27/13       (S)       L&C RPT CS  2DP 2NR  SAME TITLE                                                                        
03/27/13       (S)       DP: DUNLEAVY, ELLIS                                                                                    
03/27/13       (S)       NR: OLSON, MICCICHE                                                                                    
04/01/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
04/01/13       (S)       Heard & Held                                                                                           
04/01/13       (S)       MINUTE(JUD)                                                                                            
04/03/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
04/03/13       (S)       Heard & Held                                                                                           
04/03/13       (S)       MINUTE(JUD)                                                                                            
04/04/13       (S)       JUD AT 2:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
BETH CHAPMAN, Attorney                                                                                                          
Juneau, AK                                                                                                                      
POSITION STATEMENT: Provided a sectional analysis of SB 65.                                                                   
                                                                                                                                
DAVID SHAFTEL, Attorney                                                                                                         
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Provided a sectional analysis of SB 65.                                                                   
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
2:37:09 PM                                                                                                                    
CHAIR  JOHN   COGHILL  called   the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 2:37  p.m. Present at the  call to                                                               
order  were  Senators  McGuire, Dyson,  Wielechowski,  and  Chair                                                               
Coghill.                                                                                                                        
                                                                                                                                
          SB  65-RETIREMENT PLANS; ROTH IRAS; PROBATE                                                                       
                                                                                                                                
2:37:15 PM                                                                                                                    
CHAIR COGHILL announced the consideration of SB 65. [Version O                                                                  
was before the committee.]                                                                                                      
                                                                                                                                
SENATOR OLSON joined the committee.                                                                                             
                                                                                                                                
2:37:50 PM                                                                                                                    
BETH CHAPMAN, Attorney, stated that  she practices in the area of                                                               
estate planning and  has an office in Juneau.  She explained that                                                               
she would discuss the bill sections according to subject matter.                                                                
                                                                                                                                
CHAIR  COGHILL noted  that David  Shaftel and  Douglas Blattmachr                                                               
were available on-line to add to the discussion.                                                                                
                                                                                                                                
MS. CHAPMAN provided the following sectional analysis:                                                                          
                                                                                                                                
Sections  6  and  7,  relate  to  representation  for  settlement                                                               
agreements. Section  6 amends AS  13.06.120. It is  the provision                                                               
that is  used for giving  notice in probates and  estate matters.                                                               
It removes the reference to  judicially supervised settlements in                                                               
any  non-judicial  proceedings. This  was  done  to clarify  what                                                               
notice  proceedings  this  applies  to.  Section  7  adds  a  new                                                               
subsection  (b) to  provide  definitions.  Paragraph (1)  defines                                                               
"order" to mean a judicial  order or nonjudicial order. Paragraph                                                               
(2)   adds  to   the  definition   of  "proceeding"   to  include                                                               
nonjudicial  proceedings, and  the settlement  of accounts  under                                                               
any procedure  authorized under the  probate code. This  was done                                                               
to ensure that all nonjudicial  proceedings are covered under the                                                               
notice provision.                                                                                                               
                                                                                                                                
Section  8 relates  to the  duties of  trustees and  co-trustees.                                                               
This  clarifies current  practice, which  is that  duties can  be                                                               
granted  to  different trustees  to  oversee  distributions of  a                                                               
trust and to manage the investments of a trust.                                                                                 
                                                                                                                                
2:40:56 PM                                                                                                                    
SENATOR WIELECHOWSKI  referenced page 8,  lines 3-4. He  asked if                                                               
this completely exonerates excluded  trustees from any obligation                                                               
to review, inquire, investigate, or make recommendations.                                                                       
                                                                                                                                
MS.  CHAPMAN said  that's correct,  and that  is consistent  with                                                               
current statute. A  co-trustee that has been  delegated one power                                                               
is not responsible for the  actions of another co-trustee because                                                               
they have no authority.                                                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI asked if an  excluded trustee would have any                                                               
responsibilities.                                                                                                               
                                                                                                                                
MS.  CHAPMAN replied  that they  have  the responsibilities  that                                                               
were  delegated to  them. They  would not  be exonerated  for any                                                               
action that falls within their powers.                                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if  a co-trustee  would be  excluded                                                               
from any obligation if he/she knew of fraud that was occurring.                                                                 
                                                                                                                                
MS. CHAPMAN offered her belief  that the co-trustee would be held                                                               
liable  because not  disclosing the  fraud would  be a  breach of                                                               
their overall fiduciary duty to the beneficiaries.                                                                              
                                                                                                                                
SENATOR  WIELECHOWSKI observed  that  the  language is  extremely                                                               
broad and appears to completely exonerate an excluded trustee.                                                                  
                                                                                                                                
CHAIR  COGHILL  said  his understanding  is  that  it's  directly                                                               
related to an authority that is assigned to the trustee.                                                                        
                                                                                                                                
MS. CHAPMAN  agreed; it is  intended to  say that if  one trustee                                                               
has the  sole discretion to  invest trust assets and  one trustee                                                               
has the sole discretion to  make distributions, the distributions                                                               
trustee  does  not   have  an  obligation  to   review  what  the                                                               
investment trustee is doing.                                                                                                    
                                                                                                                                
CHAIR COGHILL asked Mr. Shaftel if he had anything to add.                                                                      
                                                                                                                                
2:43:56 PM                                                                                                                    
DAVID  SHAFTEL,  Attorney,  Anchorage, Alaska,  agreed  with  Ms.                                                               
Chapman's analysis. These types of  statutes have been enacted in                                                               
a variety of states and are  designed to protect one trustee from                                                               
another trustee's negligence, not fraud.                                                                                        
                                                                                                                                
MS. CHAPMAN continued the sectional analysis.                                                                                   
                                                                                                                                
Sections 9 through  11 relate to decanting, which  is the ability                                                               
of a trustee to make changes to  the terms of a trust that are in                                                               
the  best interests  of the  beneficiary. Alaska  was the  second                                                               
state in  the country to  adopt this  type of provision,  but the                                                               
statute  lacks guidance  to trustees  on how  to use  this power.                                                               
These  changes  are  based  on  the revisions  to  the  New  York                                                               
statute,  which  Alaska modeled  initially.  The  purpose of  the                                                               
decanting statute  is to  allow a  trustee to  modify a  trust to                                                               
correct errors and  to adjust to changed  circumstances and laws.                                                               
A trustee  can make modifications  based on the  authority he/she                                                               
has and in  the best interest of the beneficiary.  For example, a                                                               
trustee with unlimited authority  to make distributions could put                                                               
the funds into  a new trust and continue the  terms of the trust.                                                               
This is useful for minors  or individuals who have special needs.                                                               
A trustee who has a limited  power to distribute also has limited                                                               
authority  to  make changes.  A  beneficiary  may object  to  the                                                               
exercise for  a certain period  of time. Restrictions  also exist                                                               
to protect  mandatory distribution  rights, tax benefits,  and to                                                               
prohibit  the  trustee  from  increasing  their  compensation  or                                                               
decreasing their liability.                                                                                                     
                                                                                                                                
Section 14  relates to  the appointment  of individuals  who will                                                               
help oversee a  trust. Current statute allows  the appointment of                                                               
a trust protector and requires  that person to be a disinterested                                                               
non-family member.  Appointing a disinterested third  party is no                                                               
longer  consistent with  trust practices  and that  provision was                                                               
removed.  Allowing   family  members  to  be   appointed  further                                                               
protects the beneficiary.                                                                                                       
                                                                                                                                
Section 15 adds a new  provision regarding trust advisors. If the                                                               
terms of  a trust designate  the trustee to follow  the direction                                                               
of a  non-trustee advisor,  the advisor  may be  held financially                                                               
liable to  the beneficiary  for the  actions the  advisor directs                                                               
the   trustee  to   take.  This   change  further   protects  the                                                               
beneficiary as well as the directed trustee.                                                                                    
                                                                                                                                
Sections  33 through  35 amend  the Uniform  Transfers to  Minors                                                               
Act. The Act allows the transfer  of assets to an account for the                                                               
benefit of a minor. The  account custodian may make distributions                                                               
for the  benefit of  the minor. Under  the current  statutes, the                                                               
custodianship ends  when the minor  reaches age 18 and  the minor                                                               
is entitled to the assets.  The amendment provides an opportunity                                                               
for the custodian  to extend the time in  which the custodianship                                                               
account will  stay in place.  The minor  must be given  notice of                                                               
the extension  and they have  the right  to object. If  the minor                                                               
does not object,  the custodianship will continue  and be managed                                                               
for their sole benefit.                                                                                                         
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if the  minor must  be notified  six                                                               
months before their 18th birthday.                                                                                              
                                                                                                                                
MS. CHAPMAN agreed it is a six month notice period.                                                                             
                                                                                                                                
Section 36  relates to the  adoption of the Disposition  of Human                                                               
Remains Act. The  purpose is to allow decedents  to leave legally                                                               
binding directions  regarding the  disposition of  their remains,                                                               
and to designate an agent to  see that their wishes are followed.                                                               
If a person has not provided  directions, then a priority list is                                                               
provided of  the persons who  may control the disposition  of the                                                               
decedent's  remains.   A  statutory  form  is   provided  so  the                                                               
assistance of an attorney is not necessary.                                                                                     
                                                                                                                                
2:55:59 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if this would  change the legislation                                                               
he  introduced  and  that  passed  several  years  ago  regarding                                                               
disposition of remains for military members.                                                                                    
                                                                                                                                
MS. CHAPMAN  said no. The  disposition of the remains  of members                                                               
of the  organized militia  under AS  26.05.262, the  armed forces                                                               
under AS  26.10.065(a), and the  United States Coast  Guard under                                                               
AS 26.10.065(b) are exempt from the provisions in AS 13.75.                                                                     
                                                                                                                                
2:56:48 PM                                                                                                                    
MR. SHAFTEL continued the sectional analysis.                                                                                   
                                                                                                                                
Sections  1  through 3  provide  asset  protection for  inherited                                                               
interests in  retirement plans.  These amendments  conform Alaska                                                               
law  to  the  majority  case  rule that  has  been  developed  in                                                               
bankruptcy courts  in a number  of states. Arizona,  Florida, and                                                               
Texas have enacted similar provisions.                                                                                          
                                                                                                                                
Sections  4 and  5  clarify that  a  creditor's exclusive  remedy                                                               
against an interest in a  limited liability company is a charging                                                               
order  against  the  interest,   and  other  legal  or  equitable                                                               
remedies are not available. These  protections apply for multiple                                                               
member entities and single member entities.                                                                                     
                                                                                                                                
Sections 12  and 13 relate  to placing  an insurance policy  in a                                                               
trust. When  a settlor  selects an insurance  policy and  names a                                                               
friend  as a  trustee, they  generally don't  want to  burden the                                                               
friend with  the obligation of  monitoring the  insurance company                                                               
for   solvency  and   appropriate   investment  practices.   This                                                               
amendment insulates  the trustee  from liability  associated with                                                               
those insurance policies.                                                                                                       
                                                                                                                                
Sections 16  through 32  contain amendments  to the  2003 Uniform                                                               
Principal and Income Act that  reflect the final regulations that                                                               
the  Internal  Revenue  Service  issued  regarding  unitrusts.  A                                                               
trustee is  allowed to choose  a unitrust  rate of three  to five                                                               
percent  rather than  be limited  to the  four percent  amount in                                                               
current law.  There is  also an  explicit definition  of "income"                                                               
for a trust  drafted as a unitrust. It provides  for the ordering                                                               
of  distributions   among  types  of  income   and  principle.  A                                                               
smoothing  period of  up to  five years  is allowed  to determine                                                               
what assets will be used when applying the unitrust percentage.                                                                 
                                                                                                                                
3:02:01 PM                                                                                                                    
SENATOR WIELECHOWSKI asked for a definition of unitrust.                                                                        
                                                                                                                                
MR.  SHAFTEL   explained  that  a   unitrust  is  a   trust  that                                                               
distributes a fixed  percentage of the value of  the trust assets                                                               
on an annual or more frequent basis.                                                                                            
                                                                                                                                
Section  37  amends  the  insurable  interest  statute  for  life                                                               
insurance  contracts. This  clarifies that  a trustee  of a  life                                                               
insurance  trust who  is holding  the policy  for the  benefit of                                                               
members  of the  person  who set  up the  trust  is an  insurable                                                               
interest.                                                                                                                       
                                                                                                                                
Section  38  is  a  companion  provision  to  the  LLC  provision                                                               
discussed in Sections 4 and 5.                                                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI   inquired  if  employers  in   Alaska  are                                                               
prohibited from buying insurance  policies on their employees and                                                               
naming themselves as beneficiaries.                                                                                             
                                                                                                                                
MR. SHAFTEL  said his understanding  is that Alaska law  does not                                                               
allow that.                                                                                                                     
                                                                                                                                
Section 39 eliminates deadwood provisions.                                                                                      
                                                                                                                                
Section 40 shortens the statute  of limitation on creditor claims                                                               
from  four  years  to  two  years.  This  is  consistent  with  a                                                               
nationwide trend.                                                                                                               
                                                                                                                                
SENATOR WIELECHOWSKI  questioned the public policy  rationale for                                                               
limiting the statute of limitations.                                                                                            
                                                                                                                                
MR. SHAFTEL  said it's  a policy call,  but it's  consistent with                                                               
what appears to be the modern trend.                                                                                            
                                                                                                                                
CHAIR  COGHILL  asked  if  the  four  year  limitation  had  been                                                               
challenged.                                                                                                                     
                                                                                                                                
MR.  SHAFTEL said  no,  although actions  have  been brought  for                                                               
fraudulent transfers.                                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI asked if he would  have six months to file a                                                               
cause  of  action  or  claim   for  relief  if  he  discovered  a                                                               
fraudulent transfer three years after it occurred.                                                                              
                                                                                                                                
MR. SHAFTEL agreed.                                                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI  asked if a judge  or a jury would  make the                                                               
decision that the person could have reasonably known.                                                                           
                                                                                                                                
MR. SHAFTEL explained that questions  of fact are jury decisions,                                                               
otherwise it's a judge decision.                                                                                                
                                                                                                                                
Section 41 codifies the common  law protection that a creditor of                                                               
the beneficiary cannot compel distributions  from the trust. This                                                               
section also allows the transfer of an IRS interest to a trust.                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI  asked if this  new section of law  was Sec.                                                               
34.40.118 on page 39, lines 21-30.                                                                                              
                                                                                                                                
MR. SHAFTEL agreed.                                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI observed  that  this provision  essentially                                                               
allows people to skirt the inheritance tax.                                                                                     
                                                                                                                                
MR. SHAFTEL disagreed. He pointed out  that the law now allows an                                                               
individual  to  transfer  up  to  $5  million  to  a  trust,  and                                                               
transferring  the IRA  interest would  use up  a portion  of that                                                               
exempt amount,  depending on  the value of  the IRA.  Current law                                                               
doesn't  affirmatively allow  an  individual to  transfer an  IRA                                                               
interest to  a trust and  estate planners have been  cautious and                                                               
haven't done  it. This isn't  a matter  of federal law,  and this                                                               
just clarifies that there is the option in state law.                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI  asked if  a 20  year old  beneficiary would                                                               
incur tax  consequences if  he/she took  a distribution  from the                                                               
IRA that was put in the trust.                                                                                                  
                                                                                                                                
MR.  SHAFTEL stated  that this  does  not change  the income  tax                                                               
consequences with respect  to that IRA. The  advantage of placing                                                               
an  IRA into  a grantor  trust is  that the  growth of  the asset                                                               
would not be subject to estate  tax. This is already allowed with                                                               
other assets.                                                                                                                   
                                                                                                                                
3:21:44 PM                                                                                                                    
Sections  42 through  46 amend  Alaska's  the optional  community                                                               
property  provision  that was  enacted  in  1998. This  provision                                                               
provides an attractive  income tax benefit when  the first spouse                                                               
dies, because there's  an adjustment to the fair  market value of                                                               
the  basis of  the  assets  of both  halves  of  the estate.  The                                                               
amendment clarifies  that a community  property trust is  one way                                                               
to  opt into  Alaska's community  property system.  It eliminates                                                               
confusing  language about  statute of  limitations. It  clarifies                                                               
that property that  spouses agree is community  property is owned                                                               
as such regardless  of the way that it is  titled. It also enacts                                                               
remedies  for improper  transfers and  limitation periods  within                                                               
which those remedies must be pursued.                                                                                           
                                                                                                                                
Sections 47 through 50 are technical provisions regarding                                                                       
repealed sections, indirect rule change, applicability and the                                                                  
requirement for two-thirds majority vote of each house.                                                                         
                                                                                                                                
3:25:14 PM                                                                                                                    
SENATOR WIELECHOWSKI expressed appreciation for the time spent                                                                  
on the explanation.                                                                                                             
                                                                                                                                
CHAIR COGHILL stated he would hold SB 65 in committee and take                                                                  
action at the next meeting.                                                                                                     
                                                                                                                                
3:25:58 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Coghill adjourned the Senate Judiciary Standing Committee                                                                 
meeting at 3:25 p.m.                                                                                                            

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