Legislature(2021 - 2022)BELTZ 105 (TSBldg)
03/22/2021 01:30 PM Senate LABOR & COMMERCE
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| SB88 | |
| SB90 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 88 | TELECONFERENCED | |
| + | SB 90 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 90-ELECTRONIC WILLS
2:03:42 PM
CHAIR COSTELLO announced the consideration of SENATE BILL NO. 90
"An Act relating to wills and the probate of wills; relating to
the making, witnessing, self-proving, revocation, and probate of
wills by electronic means; relating to the choice of law for
execution of wills; relating to the certification of copies of
wills; relating to the establishment of the validity of a will
before death; and providing for an effective date."
[CSSB 90(JUD) was before the committee.]
2:04:23 PM
At ease
2:08:01 PM
CHAIR COSTELLO reconvened the meeting and asked the sponsor to
introduce the bill.
SENATOR MYERS, Alaska State Legislature, Juneau, Alaska, sponsor
of SB 90 introduced the legislation paraphrasing the following
sponsor statement.
2:08:50 PM
In Alaska, all wills except handwritten wills must be
executed in-person with at least two witnesses
present. Current state probate legislation does not
account for the remote signing and witnessing of
wills. This can make it difficult for the elderly or
those with little resources to plan their estate. The
COVID-19 pandemic has exacerbated circumstances
surrounding traditional estate planning. The public
closure of the state's Pioneer Homes and assisted
living homes has isolated many seniors from these
services. Additional legislation is required to bring
tools utilized throughout the pandemic, such as video
conferencing, to the estate planning process.
SB 90 aims to fill the gap in probate legislation by
allowing the electronic signing and witnessing of
wills. This bill enables individuals to draft and sign
a will on a computer, tablet, or other electronic
device. Witnesses can also observe the execution of a
will through a video and audio link and do not need to
be physically present. These reforms and
modernizations will bring additional accessibility and
connectivity to a state that has many small rural
communities out of the reach of the road system.
As Alaska moves towards the future, so should our will
and probate process
SENATOR STEVENS commented on the potential for fraud and asked
for assurance that nobody else could write his will for him.
SENATOR MYERS explained that to maintain the existing
protections, the bill requires video and audio contact with the
attorneys and notary who are attesting to the identity of the
testator and witnesses during the will signing. He noted that
Alaska probate law allows flexibility in writing the will but
has robust protections to allow the opportunity to challenge the
execution of the will.
CHAIR COSTELLO asked if other states have similar legislation.
SENATOR MYERS answered yes; he recalled that about 12 states
allow this, and another 30 states are working on similar model
legislation from the Uniform Law Commission. He noted that SB 90
altered the model legislation slightly to accommodate Alaska
statutes.
CHAIR COSTELLO asked for an explanation of the Uniform Law
Commission
SENATOR MYERS explained that it is a group of attorneys from
across the country that create draft legislation to address
topics that have widespread and national implications. Will
writing is one of those topics. The model legislation is uniform
to accommodate people who write their wills in one jurisdiction
and subsequently move to another. With a uniform law, the will
would be valid in both jurisdictions.
CHAIR COSTELLO asked if wills written in one jurisdiction are
not necessarily valid if a person dies in another jurisdiction.
SENATOR MYERS replied he did not believe that had been an issue
and SB 90 seeks to ensure that continues to be the case going
forward.
2:15:02 PM
CHAIR COSTELLO asked him to explain the current process to file
a will.
SENATOR MYERS explained that an individual would typically go to
an attorney who would write their will; a notary would witness
the signing by the testator and their witnesses giving
reasonable assurance that it was created without duress; and the
testator would then file the will at home, with their attorney,
or the court.
2:16:10 PM
SENATOR REVAK asked if the bill stems in part because the
pandemic made it difficult to impossible for people to prepare
and file their wills.
SENATOR MYERS replied it was attorneys primarily who asked him
to file the bill because it had been so difficult to complete
probate work with their clients.
SENATOR STEVENS noted that he recently rewrote his will and
filed it with the court so that his family knows where it is. He
asked for an explanation of electronically filing a will with
the court.
SENATOR MYERS clarified that the Court System in Alaska is not
set up to accept electronic filing, including wills. The bill
does provide that a will that has been signed electronically is
valid and a certified copy may be filed with the court. The
model legislation from the Uniform Law Commission allows
electronic filing with the court and the original bill had that
language. The previous committee amended that language to
reflect that the Alaska Court System cannot accommodate
electronic filing.
CHAIR COSTELLO found no further questions and asked Mr. Nash to
walk through the sectional analysis, including the changes the
previous committee made.
2:19:06 PM
JOSIAH NASH, Staff, Senator Robert Myers, Alaska State
Legislature, Juneau, Alaska, presented the sectional analysis
for SB 90, version B.
Section 1.
A will is defined as a document that directs how an
individual's property should be distributed or managed
after their death. This definition is expanded to
include an electronic will.
Section 2.
Electronic presence is defined as two or more
individuals in multiple locations with technology that
enables these individuals to maintain audio and visual
contact and communicate. This definition includes the
communication between individuals who have a visual,
hearing, or speech impairment. Additionally, an
electronic will is defined as a will with electronic
text and/or the electronic signature of the testator
or a witness.
Section 3.
A will disposing of personal property in any location,
or real property located in Alaska, made in or outside
of Alaska by a resident or non-resident of the state
where the property is located, is valid and admissible
to probate in Alaska if the will is a record readable
as text at the time of signing and signed by the
testator and executed under the local law of this
state, the jurisdiction where the testator was
physically present when they signed the will, or the
jurisdiction where the testator lived, either at the
time of the execution of the will or at death.
Section 4.
Except as provided in several instances in other
sections of the statutes, a will must be a record that
is readable as text at time of signing, signed by the
testator or signed in their name by another individual
who is taking direction from the testator and in their
physical or electronic presence, and signed by at
least two individuals who are in the physical or
electronic presence of the testator at the time of
signing and sign within a reasonable time after
witnessing the signing of the will or the testator's
acknowledgment of that signature. A will that does not
comply with these requirements is valid as a
holographic will without any witnesses if signature
and material portions are in the testator's
handwriting or readable as text.
MR. NASH explained that a holographic will cannot be generated
electronically, but a copy in the form of an electronic image
can be filed with the court. A computer with a text editor
cannot be used to create a holographic will.
Section 5.
This section contains an oath for the testator and
witnesses of a will to proclaim before an officer
authorized to administer the oath of laws of the state
where the testator is physically present.
This section contains an oath similar to the oath in
Sec. 5 but is for use after the execution of a will to
retroactively self-prove it.
2:23:13 PM
Section 7.
Except as provided in another section of the statutes,
a will is valid if executed in compliance with the law
at the time of execution of the place where the will
is executed, which is the place where the testator is
physically present while signing the will, or the laws
of the place where the testator abodes at time of
death.
Section 8.
A will or a section of a will is revoked by executing
another will that overwrites the previous will, or by
the testator destroying or deleting the will themself
or with the aid of another individual acting at their
direction.
MR. NASH noted that a requirement was added for clear and
convincing evidence to be used as the legal standard to prove a
testators intent in revoking a will.
Section 9.
An individual can make a paper copy of their will by
taking an oath that copy is true and accurate. If the
will is self-proving, the copy must include the self-
proving affidavits.
MR. NASH noted that the provision in Section 9 was amended in
the previous committee to allow a copy of a holographic will, as
discussed in Section 4.
Section 10.
A petition to the court to determine whether a trust
is valid and enforceable before a settlor's death must
contain:
1. A statement that a copy (may be electronic
copy) of the will has been filed with the court.
2. A statement that the will is in writing or
is an electronic will.
3. A statement that the will was signed by the
testator or by another individual at the
testator's direction in the physical or
electronic presence of the testator.
4. In the case of a witnessed will, a statement
that the will was signed by at least two
individuals, each of whom signed within a
reasonable amount of time after witnessing the
signing of the will or the testator
acknowledgment of the signature on the will.
5. In the case of a holographic will, a
statement that the signature and material
portions are in the testator's handwriting or a
record readable as text.
MR. NASH advised that the foregoing was changed to be in
electronic form, but it cannot be electronically generated.
6. A statement that the will is executed with
the testator's intent.
7. A statement that the testator had legal and
mental capacity.
8. A statement that the testator was free from
undue influence and duress.
9. A statement that the will was not executed
fraudulently or mistakenly.
10. Names and addresses of the testator,
testator's spouse, testator's children,
testator's heirs, personal representative
nominated in the will, and the devices of the
will.
11. If minors, the ages of the testator's
children, the testator's heirs, and the devisees
under the will, as far as known or ascertainable
with reasonable diligence by the petitioner.
12. A statement that the will has not been
revoked of modified.
13. A statement that the testator is familiar
with the contents of the will.
2:27:37 PM
SENATOR STEVENS asked what assurance he would have that an
electronic will would be available in the future.
SENATOR MYERS replied he understands the concern but losing a
will is already an issue when it is on paper. He said the
previous committee primarily addressed revocatory acts and
added, "deleting" to the list of ways a will could be revoked.
The clear and convincing standard was added to ensure that when
a will is deleted it is intentional. To safeguard a will the
recommendation is to file it in a safe, with an attorney, with
the court or all the foregoing to protect yourself and heirs, he
said.
MR. NASH continued the sectional analysis. He advised that
Section 10 was amended in the previous committee to clarify that
a paper copy of an electronic will may be filed with the Alaska
Court System. It is not set up to accept electronic wills.
Section 11.
Applications for informal probate or appointment shall
be directed to the registrar and verified by the
applicant to be true to the applicant's best knowledge
as to the following information:
1. Every application for informal probate of a will
or for informal appointment of a personal
representative other than a special or successor
representative, must contain the following.
a. A statement of interest of the applicant.
b. The name and age of the decedent, decedent
death date, the judicial district, and the state
of the decedent's domicile at the time of death,
and the names and addresses of the spouse,
children, heirs, and devisees and ages of any who
are minors ascertainable with reasonable
diligence by the applicant.
c. If decedent was not living in the state at
the time of death, a statement showing venue.
d. A statement identifying the address of any
personal representative of the decedent appointed
in this state of elsewhere whose appointment has
not been terminated.
e. A statement indicating whether the applicant
has received a demand for notice of any probate
or appointment proceeding concerning the decedent
that may have been filed in this state or
elsewhere.
f. A statement that the time limit for informal
probate has not expired either because three
years or less have passed, that circumstances as
described by the statutes, authorizing tardy
probate or appointment have occurred.
2. An application for informal probate of a will
must state the following in addition to the
aforementioned statements:
a. Original of the decedent's will or a paper
copy of the will is in the possession of the
court, or accompanies the application, or that an
authenticated copy or a will probated in another
jurisdiction accompanies the application.
b. To the best of the applicant's knowledge,
believes the will to have been validly executed.
c. After the exercise of reasonable diligence,
the applicant is unaware of and instrument
revoking the will, and that the applicant
believes that the instrument that is the subject
of the application is the decedent's will.
3. Application for informal appointment of a
personal representative to administer an estate under
a will must describe the will by date of signing and
state the time and place of probate or the pending
application or petition for probate. Application for
appointment must adopt the statements in the
application or petition for probate and sate the name
address and priority for appointment of the person
whose appointment is sought.
4. An application for informal appointment of an
administer in intestacy must state in addition to the
statements required by section one as aforementioned.
a. After reasonable diligence, the applicant is
unaware of any unrevoked testamentary instrument
relating to property having a situs in this state
under statutes, or statement why any such instrument
of which the applicant may be aware is not being
probated.
b. Priority of the person whose appointment is
sought and the names of any other persons having prior
or equal right to the appointment.
5. Application for appointment of a personal
representative to succeed a personal representative
appointed under a different testacy status must refer
to the order in the most recent testacy proceeding.
The application must state the name and address of the
person whose appointment is sought and of the person
whose appointment will be terminated if the
application is granted and describe the priority of
the applicant.
2:35:02 PM
CHAIR COSTELLO turned to invited testimony.
2:35:03 PM
ABIGAIL O'CONNOR, Attorney, O'Connor Law LLC, Anchorage, Alaska,
stated that she practices solely in the area of trust and estate
law and was one in the group of Alaska trust and estate lawyers
who drafted this legislation. It is based primarily on the
Uniform Law Commission model legislation with some adjustment
specific to Alaska.
MS. O'CONNOR addressed the questions the committee posed.
Responding to Senator Steven's question about the potential for
fraud, she said the sad reality is that fraud with wills cannot
be prevented. The issue is handled by remedy and those will
continue. With regard to filing an electronic will with the
court, she said the bill has a new section for the certification
of a copy of an electronic will and that certified paper copy
can be filed with the court. Regarding the concern about a
deleted or destroyed will, she said that is already a problem
and it is the individual's responsibility to adequately protect
and store their wills. She said she counsels her clients to file
the will with the court, store it in a safe deposit box, or keep
it in a fireproof safe.
In response to Senator Costello's question, she said states
generally accept valid wills from other states, but there are
exceptions. Florida, for example, does not accept any
handwritten wills, even if they are deemed valid in another
state. To the question of filing an electronic will with the
court, she said that can be done by filing a certified [paper]
copy of the electronic will.
In response to Senator Revak's question, she confirmed that
there were difficulties for people trying to sign wills during
the pandemic. Some people were unable to sign their wills
altogether.
2:40:52 PM
MS. O'CONNOR said she supports SB 90, but believes that the
language added with the amendments in the previous committee
could be improved.
CHAIR COSTELLO asked her to provide her testimony and responses
to the questions in writing.
2:41:29 PM
LINDA HULBERT, representing self, Fairbanks, Alaska, stated that
she has been an insurance and financial professional for 30
years and the industry has transitioned from paper to electronic
documents in the last year Companies are able to write an
application, underwrite an application, and deliver a policy
electronically. Her clients want personal service and the
efficiency of electronic documents. She said she supports SB 90;
"The need for electronic wills is substantial."
CHAIR COSTELLO encouraged her to submit her testimony in
writing.
2:43:27 PM
MATTHEW BLATTMACHR, Attorney, Peak Trust Company, Anchorage,
Alaska, stated that his company practices in the area of estate
planning. He agreed with previous testimony that the nation is
moving in the direction of electronic documents. SB 90 would add
clarity to the statutes as to what is allowed and how it is
allowed. Rural communities in particular would be benefited, as
would anybody who is affected by the COVID-19 pandemic. He
voiced support for SB 90.
CHAIR COSTELLO encouraged him to submit his written testimony to
the committee.
2:44:39 PM
CHAIR COSTELLO opened public testimony on SB 90; finding none,
she closed public testimony.
2:44:50 PM
CHAIR COSTELLO held SB 90 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SLAC GOV Appointee James Henderson Board Application Redacted.pdf |
SL&C 3/22/2021 1:30:00 PM |
SLAC GOV APPOINTEE BP JAMES HENDERSON |
| SLAC GOV Appointee Justin Ruffridge Board Application Redacted.pdf |
SL&C 3/22/2021 1:30:00 PM |
SLAC GOV APPOINTEE BP jUSTIN RUFFRIDGE |
| SLAC GOV Appointee Justin Ruffridge Resume Redacted.pdf |
SL&C 3/22/2021 1:30:00 PM |
SLAC GOV APPOINTEE BP JUSTIN RUFFRIDGE |
| SLAC GOV Appointee Julie Endle Board Application Redacted.pdf |
SL&C 3/22/2021 1:30:00 PM |
SLAC GOV APPOINTEE BMT JULIE ENDLE |
| SLAC GOV Appointee Michael Wilcher Resume Redacted.pdf |
SL&C 3/22/2021 1:30:00 PM |
SLAC GOV APPOINTEE BN MICHAEL WILCHER |
| SLAC GOV Appointee Pamela Cline Board Application Redacted.pdf |
SL&C 3/22/2021 1:30:00 PM |
SLAC GOV APPOINTEE AWCB PAMELA CLINE |
| SLAC GOV Appointee Robert Bell Resume Redacted.pdf |
SL&C 3/22/2021 1:30:00 PM |
SLAC GOV APPOINTEE AELS ROBERT BELL |
| CSSB 90 Version G.PDF |
SL&C 3/22/2021 1:30:00 PM |
SB 90 |