Legislature(2003 - 2004)

04/14/2004 01:45 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 344 - TRUSTS/ESTATES/PROPERTY TRANSFERS                                                                                    
                                                                                                                                
Number 0319                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
SENATE  BILL NO.  344, "An  Act relating  to the  Uniform Probate                                                               
Code and trusts, including  pleadings, orders, nonprobate assets,                                                               
estates  of decedents,  minors, protected  persons, incapacitated                                                               
persons,  guardians,  conservators,   trustees,  foreign  trusts,                                                               
principal  and income,  and  transfer  restrictions; relating  to                                                               
corporate voting trusts; and providing for an effective date."                                                                  
                                                                                                                                
Number 0340                                                                                                                     
                                                                                                                                
SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor,                                                                       
relayed that SB 344 deals with the Uniform Probate Code and                                                                     
trusts.  He went on to say:                                                                                                     
                                                                                                                                
     A  real vital  characteristic of  [a] highly  developed                                                                    
     economy is the ease  with which the financial resources                                                                    
     flow from one market to  another.  In fact, the magnet-                                                                    
     like  attraction  between  money and  the  market  that                                                                    
     offers  the most  advantageous  terms  is perhaps  best                                                                    
     demonstrated  within  the financial  services  industry                                                                    
     itself.   Over the  years, the Alaska  banking industry                                                                    
     has  attracted funds  to our  state  as a  result of  a                                                                    
     particular  niche that  we have  successfully developed                                                                    
     in an  obscure corner  of the  industry known  as trust                                                                    
     and  estate services.    Much of  this  success can  be                                                                    
     attributed  to  the  foresight  demonstrated  by  [the]                                                                    
     Alaska State Legislature.   Since 1997, the legislature                                                                    
     has passed  numerous bills effectively making  Alaska a                                                                    
     premier  jurisdiction  for  this  financial  specialty.                                                                    
     Just last year, in [SB  87], [we] adopted a more recent                                                                    
     version of  the Uniform  Principal and Income  Act, and                                                                    
     [HB 212] updated other portions  of Alaska's trust laws                                                                    
     last year.  And both were signed into law last summer.                                                                     
                                                                                                                                
     And while  [SB] 344 may  not be as far-reaching  as the                                                                    
     other  two   bills,  it  accomplishes  much   the  same                                                                    
     purpose.   It  does this  by  making a  host of  small,                                                                    
     technical  revisions to  current statute.   It  updates                                                                    
     provisions  relating  to "virtual  representation,"  it                                                                    
     clarifies when a trustee can  be relieved of liability,                                                                    
     and it  adds provisions which other  jurisdictions have                                                                    
     already adopted.   Keeping  our trust  statutes current                                                                    
     has  a had  a direct,  positive impact  on our  state's                                                                    
     economy, and, over the  years, these periodic revisions                                                                    
     have helped  bring hundreds of  millions of  dollars of                                                                    
     trust assets into the state  and added tens of millions                                                                    
     of  dollars to  local bank  deposits.   Furthermore, it                                                                    
     has   increased   business  activity   for   attorneys,                                                                    
     accountants,  life  insurance   agents,  and  brokerage                                                                    
     firms in the state of Alaska.                                                                                              
                                                                                                                                
Number 0532                                                                                                                     
                                                                                                                                
SENATOR SEEKINS concluded:                                                                                                      
                                                                                                                                
     Well,  necessity, ingenuity,  and  routine advances  in                                                                    
     technology  collaborate on  a daily  basis to  reinvent                                                                    
     the   world  of   financial   products  and   services.                                                                    
     (Indisc. -  room noise) have successfully  staked out a                                                                    
     place  in this  world through  our contemporary  set of                                                                    
     trust  and  estate laws,  and  [SB  344] now  seeks  to                                                                    
     preserve  our  position in  what  amounts  to a  highly                                                                    
     fluid    marketplace    unrestricted   by    geographic                                                                    
     boundaries.  It  seems reasonable to us,  and this bill                                                                    
     helps  us,   to  keep  that   money  flowing   in  this                                                                    
     direction.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  HOLM,  referring  to Senator  Seekins's  comments                                                               
that hundreds of millions of  dollars of trust assets are brought                                                               
into the  state and that  tens of  millions of dollars  have been                                                               
deposited  in local  banks, asked  where  the difference  between                                                               
those two amounts has gone.                                                                                                     
                                                                                                                                
SENATOR SEEKINS  suggested that the difference  between those two                                                               
amounts has been deposited into  trust companies and trust funds.                                                               
In  response to  a  comment,  he indicated  that  the changes  to                                                               
Alaska  laws  regarding trusts  and  estates  are an  attempt  at                                                               
staying ahead of other states'  laws pertaining to this industry.                                                               
He  mentioned that  a small  group of  lawyers, accountants,  and                                                               
trust officers has been investigating  how to stay on the cutting                                                               
edge regarding this  issue, and that it is this  small group that                                                               
has brought forth the concept of SB 344.                                                                                        
                                                                                                                                
Number 0658                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  mentioned that  he  is  "sold" on  what  he                                                               
referred  to  as  the  economic  part of  the  bill,  that  which                                                               
promotes the industry  in the state.  He noted,  however, that it                                                               
seems  odd to  him  that  there have  been  three  bills on  this                                                               
subject in such a short span of time.                                                                                           
                                                                                                                                
SENATOR  SEEKINS offered  that the  aforementioned group  brought                                                               
forth the concepts  of those three bills and relayed  to him that                                                               
they  were the  refinements that  Alaska law  needed in  order to                                                               
keep  up with  what other  states are  doing regarding  the trust                                                               
industry.   He  offered  his belief  that  these changes  clarify                                                               
trust law and will aid in developing the industry.                                                                              
                                                                                                                                
CHAIR  McGUIRE recalled  other, past  legislation on  this issue,                                                               
and characterized  it as  a very  complex, ever-changing  area of                                                               
law.   She offered her  belief that the Delaware  legislature has                                                               
been known to  convene a session for the purpose  of updating the                                                               
laws pertaining to this industry.                                                                                               
                                                                                                                                
Number 0952                                                                                                                     
                                                                                                                                
BETHANN B. CHAPMAN, Attorney at  Law, Faulkner Banfield, PC, said                                                               
she wants  to testify in support  of SB 344, and  would focus her                                                               
comments on two  of its provisions.  Referring to  Sections 2 and                                                               
4, she said:                                                                                                                    
                                                                                                                                
     The current law  that we have for  notice provisions in                                                                    
     probate and  trust proceedings  is out  of date  and is                                                                    
     not  consistent with  our  new,  complex [trusts]  and,                                                                    
     particularly,  dynasty trusts  that can  last, now,  in                                                                    
     perpetuity.   Section 2 expands the  doctrine of what's                                                                    
     known  as  virtual  representation -  but  really  it's                                                                    
     called  substitute  notice  - and  this  doctrine  will                                                                    
     allow notice  to be served  on one or more  persons who                                                                    
     have (indisc.) interest with  respect to [a] particular                                                                    
     issue in a  trust or estate matter so long  as there is                                                                    
     no conflict  of interest.   And the  modifications that                                                                    
     are  contained  in Section  2  really  just expand  and                                                                    
     explicitly  include specific  types of  gifts that  are                                                                    
     commonly found in  trusts.  I believe  that this change                                                                    
     will insure that  parties have access to  the courts in                                                                    
     a very  efficient manner, and  is more  consistent with                                                                    
     the types of trusts we are  now seeing in Alaska and in                                                                    
     ... all other states as well.                                                                                              
                                                                                                                                
     The other provision I wanted  to focus on is Section 4,                                                                    
     and  that  [pertains  to]  limitations  on  proceedings                                                                    
     against trustees.  Currently, we  do not have a statute                                                                    
     of  limitations ...  for  proceedings against  trustees                                                                    
     for  breach  of  trust  unless  there's  been  a  final                                                                    
     account, and many times [there]  ... can be a very long                                                                    
     period  of  time  before  any  claims  can  be  brought                                                                    
     against a  trustee.  A  final account is  only rendered                                                                    
     when the  trust relationship  is terminated.   In light                                                                    
     of the  fact that we now  have trusts that can  last in                                                                    
     perpetuity, and  if there's been no  termination of the                                                                    
     trust  relationship  or  trustee relationship,  we  may                                                                    
     find ourselves in a situation  where we have costly and                                                                    
     extremely complex litigation arising  out of a claim of                                                                    
     a breach  of trust that  may have happened  many, many,                                                                    
     many years prior  to the time the claim  was brought to                                                                    
     the courts.                                                                                                                
                                                                                                                                
     Under  current law,  there is  a  six-month statute  of                                                                    
     limitations for  any claim by  a beneficiary  against a                                                                    
     trustee  once a  final  accounting  has been  rendered.                                                                    
     This  proposal expands  the statute  of limitations  to                                                                    
     cover  claims  that could  be  brought  on any  interim                                                                    
     accounting  that  may  be  rendered,  so  long  as  the                                                                    
     beneficiary  is  provided   notice  of  the  limitation                                                                    
     period.  Under the current  law there is no requirement                                                                    
     that   the  beneficiary   be  notified   of  the   time                                                                    
     limitations  to bring  a breach  of  trust claim;  now,                                                                    
     this  provision would  expand the  six-month limitation                                                                    
     period to  cover interim  accounting, but  also require                                                                    
     the trustee  to provide  the beneficiary notice  of the                                                                    
     time limit.   That notice provision  is consistent with                                                                    
     what we  have in  the probate  code when  we're dealing                                                                    
     with  an estate  that is  going through  probate rather                                                                    
     than a trust.                                                                                                              
                                                                                                                                
Number 1152                                                                                                                     
                                                                                                                                
MS. CHAPMAN concluded:                                                                                                          
                                                                                                                                
     I testify in support of SB  344, and point out that yes                                                                    
     it is  the third bill,  recently, that we've  seen, but                                                                    
     in the last few years  there have been major changes in                                                                    
     trust laws, which  ... hadn't changed for  decades.  As                                                                    
     those laws  change, I believe Alaska  needs to continue                                                                    
     to be  in the forefront  of having trust laws  that are                                                                    
     modern,  provide  opportunities  to both  Alaskans  and                                                                    
     nonresidents to  bring their money to  Alaska, and help                                                                    
     the industry.   I'll be  happy to answer  any questions                                                                    
     that anybody may have.  Thank you.                                                                                         
                                                                                                                                
MS. CHAPMAN, in response to questions, said:                                                                                    
                                                                                                                                
     I don't  think people are  going to read  their interim                                                                    
     accountings  any  less than  they're  going  to read  a                                                                    
     final  account.    And  I believe  the  six  months  is                                                                    
     consistent  with the  approach  that it's  used in  all                                                                    
     probate proceedings and trust  proceedings, and that is                                                                    
     that  when   you're  dealing  with   this  type   of  a                                                                    
     relationship,  which is  ... a  fiduciary relationship,                                                                    
     [then] ... those accountings are  very detailed and are                                                                    
     designed  to provide  information to  a beneficiary  so                                                                    
     that they know what has happened in an interim period.                                                                     
                                                                                                                                
     And I  don't believe that  they're putting us  at risk,                                                                    
     and  [I   believe]  that   the  six-month   statute  of                                                                    
     limitations  is consistent  with  how  we approach  all                                                                    
     trust proceedings, which  is:  you don't  want these to                                                                    
     sit around and continue  to potentially be brought many                                                                    
     years later,  because you put  the trust at risk  - not                                                                    
     just the  trustee - [since]  ... many times you  have a                                                                    
     beneficiary who  may become disgruntled down  the line,                                                                    
     and  if  they  can  go back  that  many  years,  you're                                                                    
     putting all the other beneficiaries at risk as well.                                                                       
                                                                                                                                
     I  believe  the  six-month statute  of  limitations  is                                                                    
     protective  of all  the beneficiaries  of a  trust, and                                                                    
     more  so than  I think  it's protective  of a  trustee,                                                                    
     because it ensures that you  cannot allow a disgruntled                                                                    
     beneficiary,  many  years later,  to  bring  a claim  -                                                                    
     whether it's  valid or brought  in bad faith -  and tie                                                                    
     up  trust assets,  [and] cause  a trustee  to defend  a                                                                    
     claim,  which, if  the trustee  has not  breached their                                                                    
     fiduciary duty,  ... [is] paid  from the  trust assets.                                                                    
     And I  believe this will  ensure that those  claims are                                                                    
     brought in a timely manner.                                                                                                
                                                                                                                                
MS.  CHAPMAN, in  response to  further questions,  indicated that                                                               
all breach of  trust claims, including those  arising from fraud,                                                               
would be covered  under the legislation, and that  if an attorney                                                               
is serving  as a trustee, the  bill would "reduce the  tail," but                                                               
noted  that  her firm's  policy  precludes  attorneys serving  as                                                               
trustees and so she isn't sure that many attorneys do that.                                                                     
                                                                                                                                
Number 1473                                                                                                                     
                                                                                                                                
STEPHEN E. GREER, Attorney at Law,  relayed that "this has been a                                                               
coordinated  effort by  a group  of attorneys."   He  offered his                                                               
belief that  SB 344 is  a very good bill,  and noted that  one of                                                               
the reasons "we  come forward every year with a  new bill is that                                                               
it takes an  incredible amount of time to research  ... the bill,                                                               
to  research the  law,  and  pass it  around  to other  members."                                                               
Alaska is  very fortunate to have  a group of attorneys  that are                                                               
so interested  in the  area of  law in  which they  practice that                                                               
they are  willing to  put forth this  effort, he  opined, adding,                                                               
"we can't  do it  all at once  and [so] we've  taken it  piece by                                                               
piece."                                                                                                                         
                                                                                                                                
Number 1540                                                                                                                     
                                                                                                                                
DAVID  G. SHAFTEL,  Attorney  at  Law, Law  Offices  of David  G.                                                               
Shaftel, PC, noted  that five states -  Alaska, Delaware, Nevada,                                                               
Rhode  Island,  and  Utah  -   have  enacted  laws  dealing  with                                                               
spendthrift  trusts, abolishing  the  rule against  perpetuities,                                                               
and  providing tax-  and asset-protection  approaches for  estate                                                               
planners and  their clients.   He, too, noted that  both Alaskans                                                               
and  nonresidents are  able to  take advantage  of Alaska's  laws                                                               
pertaining   to   trusts   and  estates,   but   cautioned   that                                                               
nonresidents can also chose to  take advantage of similar laws in                                                               
other  states.   He spoke  of a  national conference  attended by                                                               
active   estate   planning    attorneys   and   estate   planning                                                               
accountants, and  relayed that a  number of provisions in  SB 344                                                               
were either already enacted by  other states or were discussed at                                                               
the last conference.                                                                                                            
                                                                                                                                
MR. SHAFTEL referred to Sections 3  and 8-11, and said that these                                                               
provisions deal  with subjects such  as moving trusts  to Alaska;                                                               
clarifying  that spendthrift  trust limitations  are intended  to                                                               
come within the bankruptcy  code's spendthrift trust restriction;                                                               
providing for a  qualified personal residence trust  (QPRT) and a                                                               
grantor retained annuity trust (GRAT);  providing, with regard to                                                               
spendthrift  trusts,  that  fraudulent  transfer  liability  goes                                                               
against  the  settlor  that   commits  the  fraudulent  transfer;                                                               
providing protection for  the trustee and other  persons who form                                                               
limited  partnerships or  limited liability  partnership for  the                                                               
purpose of minimizing federal estate  tax; and providing that any                                                               
action brought to  challenge a transfer to a trust  be brought in                                                               
Alaska.                                                                                                                         
                                                                                                                                
MR. SHAFTEL  mentioned that SB  344 also  contains:  a  couple of                                                               
technical  corrections  to  [Alaska's  version  of]  the  Uniform                                                               
Principal  and  Income  Act;  a  savings-clause  provision  -  in                                                               
Section 7  - pertaining to  marital trusts; and an  elimination -                                                               
in Section  1 - of the  10-year limitation on voting  trusts.  In                                                               
conclusion, he  said he thinks SB  344 is an excellent  bill, and                                                               
he urged members to support it.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG remarked that  Section 7, which pertains                                                               
to  marital trusts,  appears  to  "keep the  tax  status even  if                                                               
somebody leaves the magic language out of the trust."                                                                           
                                                                                                                                
MR. SHAFTEL concurred.                                                                                                          
                                                                                                                                
Number 2021                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  whether  additional language  to                                                               
that effect ought to be inserted in the bill.                                                                                   
                                                                                                                                
MR. SHAFTEL replied:                                                                                                            
                                                                                                                                
     It's an interesting idea.  We do put such language in                                                                      
        our trusts. ... In other words, we have general                                                                         
     savings  clauses  that  are   similar  to  what  you're                                                                    
     talking  about, where  we indicate  that [there's]  the                                                                    
     intent, for  example, if we're  dealing with  a marital                                                                    
     deduction  trust,   ...  to   qualify  for   a  marital                                                                    
     deduction and  that all of the  language and provisions                                                                    
     of this  trust instrument will  be so construed  ... in                                                                    
     order to  qualify under  Internal Revenue  Code "2056."                                                                    
     ...                                                                                                                        
                                                                                                                                
     So you're right  on; I mean, your suggestion  is a good                                                                    
     one.   Now, in  state law, generally  what you  see are                                                                    
     these more  specific types  of savings  provisions ...,                                                                    
     and  there're  two of  them  that  your looking  at  in                                                                    
     Section 7,  one of which  is already our law,  and that                                                                    
     last sentence, which we're adding.   Let our group give                                                                    
     some thought  to your suggestion, and  perhaps ... this                                                                    
     [issue] will  come back to  you again and maybe  we can                                                                    
     improve on this.                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG remarked that if such language were                                                                    
prepared within the next few days, perhaps it could be added to                                                                 
the bill via a floor amendment.                                                                                                 
                                                                                                                                
Number 2133                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA turned attention to Section 11, said it                                                                     
appears to preclude creditors from going after a trust even if                                                                  
the owner of the trust is guilty of wrongdoing.                                                                                 
                                                                                                                                
MR. SHAFTEL replied:                                                                                                            
                                                                                                                                
     If  the  evildoer  in  your  scenario  had  transferred                                                                    
     assets to  a spendthrift trust well  before the actions                                                                    
     and fraud or  other conduct ... was  involved here, and                                                                    
     that  trust   had  been  set   up  correctly   and  was                                                                    
     implemented  correctly  and  there was  an  independent                                                                    
     trustee   who   had   absolute   discretion   to   make                                                                    
     distributions  to  that  particular person  or  another                                                                    
     member of his  family, then the harmed  party could not                                                                    
     get at the  assets in that trust.  And  that's true ...                                                                    
     whether we're  talking about a self-settled  trust or a                                                                    
     third-party trust.                                                                                                         
                                                                                                                                
     If  that person's  parents  had  created a  spendthrift                                                                    
     trust  - and  keep in  mind, we're  talking about  [an]                                                                    
     irrevocable  trust that  that  person  has no  control,                                                                    
     himself, over  anymore ... -  and then at a  later time                                                                    
     in his  life he  went out  and committed  a fraud  or a                                                                    
     theft  or something  worse, you  couldn't get  at those                                                                    
     assets in that trust.   That's just the law, that's the                                                                    
     law in every state  in dealing with spendthrift trusts,                                                                    
     and  it's the  law in  five states  dealing with  self-                                                                    
     settled  spendthrift  trusts   if  they  were  created,                                                                    
     funded,  and  are  truly  independent  and  implemented                                                                    
     correctly.                                                                                                                 
                                                                                                                                
Number 2270                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA asked how current law will be changed by                                                                    
[Section 11].                                                                                                                   
                                                                                                                                
MR. SHAFTEL replied:                                                                                                            
                                                                                                                                
     [Proposed] subsection (l) in  Section 11 is a provision                                                                    
     that we  are taking  almost verbatim from  Delaware and                                                                    
     Rhode Island.  ... The  purpose of  this section  is to                                                                    
     require that if someone is  challenging a transfer to a                                                                    
     trust  --  let's  take your  scenario,  and  in  you're                                                                    
     scenario  ... -  and we're  primarily dealing  ... with                                                                    
     nonresidents -  a nonresident in  New York  argues that                                                                    
     the person  who set  up this  Alaska trust  committed a                                                                    
     fraudulent transfer.   And to give you an  example of a                                                                    
     fraudulent transfer:  let's take  your scenario but put                                                                    
     it in New  York state, and say that  this person, after                                                                    
     or ...  while he was  in the process of  defrauding the                                                                    
     victim, also transferred assets to a trust in Alaska.                                                                      
                                                                                                                                
     That's  a  fraudulent transfer  and  it  should be  set                                                                    
     aside.  And  what this provision says  here, though, is                                                                    
     that the  action to  set aside has  to occur  in Alaska                                                                    
     and not in  New York.  And what's  important about that                                                                    
     is, it  has Alaska's procedural law  apply then, Alaska                                                                    
     statute of  limitations applies to it,  and [an] Alaska                                                                    
     court gets to judge the  validity of this Alaska trust,                                                                    
     which is set  up under Alaska law.  This  is, as I say,                                                                    
     ... a  provision that's been  enacted in  both Delaware                                                                    
     and in  Rhode Island ...  for exactly the  purpose that                                                                    
     I've described.                                                                                                            
                                                                                                                                
REPRESENTATIVE GARA said he just wanted to make sure that this                                                                  
provision is not giving people the ability to avoid paying for                                                                  
their misconduct by putting money in a trust.                                                                                   
                                                                                                                                
MR. SHAFTEL  opined that this  provision neither allows  such nor                                                               
is intended to allow such.                                                                                                      
                                                                                                                                
REPRESENTATIVE  GARA  remarked  that  if that  is  the  case  and                                                               
fraudulent transfers  are already precluded  by law, why  add new                                                               
language  that includes  this rule  that says  one can't  recover                                                               
from the person's trust.                                                                                                        
                                                                                                                                
TAPE 04-64, SIDE B                                                                                                            
Number 2390                                                                                                                     
                                                                                                                                
MR. SHAFTEL replied:                                                                                                            
                                                                                                                                
     When you get into the  area of conflict of laws dealing                                                                    
     with trusts  and dealing with fraudulent  transfers and                                                                    
     dealing  with which  state's statute  of limitations  -                                                                    
     not  substantive law  -  ... applies,  if  ... the  ...                                                                    
     forum state,  which is Alaska,  ... has a  provision in                                                                    
     its  law that  says that  its  law and  its courts  are                                                                    
     going  to  have   jurisdiction,  then  that  procedural                                                                    
     statute of limitations provision  will be applied, even                                                                    
     if they were  to apply the substantive law  of New York                                                                    
     in our example.   So ... our Alaska  court could decide                                                                    
     to  apply New  York's  substantive fraudulent  transfer                                                                    
     law, under the basic rules  ... in the area of conflict                                                                    
     of  law,  but  they  would apply  Alaska's  statute  of                                                                    
     limitations  law because  we  have this  choice of  law                                                                    
     provision in our statute.                                                                                                  
                                                                                                                                
REPRESENTATIVE GARA  asked where in  existing law it says  that a                                                               
person  cannot  go   after  the  trust  assets   of  someone  who                                                               
victimized him/her.                                                                                                             
                                                                                                                                
MR. SHAFTEL said it is located in AS 34.40.110.                                                                                 
                                                                                                                                
CHAIR McGUIRE concurred.                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG turned  attention to  page 10,  line 4,                                                               
which specifically states  that it's the superior  court that has                                                               
jurisdiction,  and asked  whether  there is  any  reason why  the                                                               
language couldn't just say "courts of this state."                                                                              
                                                                                                                                
MR. SHAFTEL said there is no reason why it couldn't.                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  turned attention  to page 9,  lines 13-                                                               
14, which says:   "(4)  at the time of  the transfer, the settlor                                                               
is in default by 30 or more days  of making a payment due under a                                                               
child support judgment  or order.".  He noted  that this language                                                               
appears to  focus on the  time of the  transfer, and that  if one                                                               
were simply up  to date on child support payments,  the assets of                                                               
the  trust could  not  be  accessed.   He  asked  Mr. Shaftel  to                                                               
comment.                                                                                                                        
                                                                                                                                
Number 2186                                                                                                                     
                                                                                                                                
MR. SHAFTEL remarked:                                                                                                           
                                                                                                                                
     This  provision  has  been  discussed  at  length  with                                                                    
     regard to  prior bills,  and actually  it goes  back to                                                                    
     the  original  bill  in  1997.  ...  The  problem  with                                                                    
     changing this provision and broadening  it to cure what                                                                    
     you're  concerned  with  is  that  ...  basically  what                                                                    
     happens is,  you destroy the transfer  tax minimization                                                                    
     benefit of  these trusts,  and ...  all gifts  to these                                                                    
     trusts would be  incomplete gifts and all  of the trust                                                                    
     assets would be included  in the settlor's gross estate                                                                    
     at death, and we would  deprive Alaskans of the ability                                                                    
     to save  transfer taxes by  using these trusts.  ... It                                                                    
     would be a shame to do that.                                                                                               
                                                                                                                                
     Now, the discussions  in the past have  pointed out ...                                                                    
     [that]  there's no  experience  ...  with these  trusts                                                                    
     being used by  "deadbeat dads or deadbeat  moms" ... to                                                                    
     defeat child support,  and that the tax  benefit that I                                                                    
     just  referred to  greatly outweighs  the hypothetical.                                                                    
     And   from   a   theoretical  standpoint   ...   you're                                                                    
     absolutely  correct,  but   it  greatly  outweighs  our                                                                    
     experience.   And  if  we ever  do  have an  experience                                                                    
     where  this becomes  a major  problem or  a significant                                                                    
     problem,  then it  should be  addressed, but  right now                                                                    
     the price is way too great.                                                                                                
                                                                                                                                
CHAIR  McGUIRE  concurred  that this  issue  has  been  addressed                                                               
during  hearings  on prior  legislation,  adding  that the  Child                                                               
Support  Enforcement Division  was consulted  on this  issue with                                                               
the  result being  that  the  30-day timeframe  was  picked as  a                                                               
compromise.    She  offered  her  belief  that  it  would  create                                                               
uncertainty to change the current  language to address the remote                                                               
possibility  that  someone would  get  current  on his/her  child                                                               
support payments in order to default at a later date.                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked whether  there might  be language                                                               
they  could add  such that  if  someone later  defaults on  child                                                               
support, he/she runs the risk of "the whole thing falling."                                                                     
                                                                                                                                
MR. SHAFTEL relayed that he  would give that concept some thought                                                               
during the interim.                                                                                                             
                                                                                                                                
Number 2013                                                                                                                     
                                                                                                                                
DOUGLAS J. BLATTMACHR, President,  Chief Executive Officer (CEO),                                                               
Alaska Trust  Company, said that  he supports SB 344,  and thinks                                                               
it enhances what's been done since  1997, has created a number of                                                               
jobs in Alaska,  and has brought a lot of  deposits to Alaska and                                                               
a lot of money directly to [the estates] of Alaskans.                                                                           
                                                                                                                                
REPRESENTATIVE GARA  turned attention to  Section 4, and  said it                                                               
appears to  protect members of  the industry from  consumers and,                                                               
thus, troubles  him because he  doesn't feel that  consumers will                                                               
look at  an interim accounting  as closely  as they will  a final                                                               
accounting.  He asked Mr. Blattmachr  how he would feel about the                                                               
bill if it passed out of committee without Section 4.                                                                           
                                                                                                                                
MR. BLATTMACHR replied:                                                                                                         
                                                                                                                                
     We think  this is  an important  provision, and  it was                                                                    
     recommended to us at the  national conference that [Mr.                                                                    
     Shaftel] mentioned.  I think  one of the differences is                                                                    
     that ...  we have,  now, perpetual trusts,  that almost                                                                    
     every one we  have is a perpetual trust  that in theory                                                                    
     can last  hundreds if not  a thousand years.   [So] ...                                                                    
     if you  have a  trust that was  started 100  years ago,                                                                    
     all of a sudden,  without this provision, a beneficiary                                                                    
     could say,  "Gee, I  didn't like  your action  that you                                                                    
     took  100  years ago;  looking  in  hindsight now,  you                                                                    
     should   have   invested   in  some   other   type   of                                                                    
     investment."   And ... there's ...  no time limitation,                                                                    
     and there won't be any.   And I think the fact that ...                                                                    
     now,  when you  get  a final  accounting,  you are  not                                                                    
     notified  that you  have any  time restriction;  you're                                                                    
     just given a final accounting.                                                                                             
                                                                                                                                
     You may  look at it, you  may not, but you  have a six-                                                                    
     month  ...  window   to  look  at  it.     [Under  this                                                                    
     provision], you  have to be  told that you have  a six-                                                                    
     month window, and the statements  that you receive have                                                                    
     to  be sufficient  enough  to have  let  you know  that                                                                    
     there  was a  problem.    So it  can't  be  that ...  a                                                                    
     statement   is   sent   and   doesn't   disclose   this                                                                    
     information and  then you're  off the  hook; it  has to                                                                    
     have the  information so a reasonable  person could see                                                                    
     what  you did.    So  we think  it's  a very  important                                                                    
     provision, and  we think it  will attract a lot  of ...                                                                    
     additional business  to Alaska  and we  think a  lot of                                                                    
     trusts will be sent to Alaska.                                                                                             
                                                                                                                                
Number 1874                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  asked how a  shorter statute  of limitations                                                               
will attract more trust business to Alaska.                                                                                     
                                                                                                                                
MR.  BLATTMACHR  said  a  shorter  statute  of  limitations  will                                                               
eliminate unnecessary trust  litigation.  What happens  now, if a                                                               
beneficiary of  a trust  that was  started 200  or 100  years ago                                                               
decides to take an action against  a trustee, the trustee has the                                                               
ability to use the trust assets  to protect itself, and if, after                                                               
costly and lengthy  litigation, the trustee is found  to not have                                                               
done anything  wrong, the  trust would  have spent  a significant                                                               
sum of money on something that happened  100 or 200 years ago.  A                                                               
lot  of  people  like  the  fact  that  there  is  a  statute  of                                                               
limitations, he  opined, and that  beneficiaries of trusts  are a                                                               
little more involved in their trusts  than they might be in their                                                               
brokerage accounts.                                                                                                             
                                                                                                                                
REPRESENTATIVE   GRUENBERG   asked    who   would   receive   the                                                               
notification  in  instances  where the  beneficiary  is  mentally                                                               
disabled, for  example, and is  therefore represented  by another                                                               
person,  and whether  "adequate disclosure"  would mean  adequate                                                               
from   the   point  of   view   of   the  beneficiary,   of   the                                                               
representative, of a trust officer,  or of "a reasonable person."                                                               
He opined that it should mean  adequate from the point of view of                                                               
the  recipient  of  the  information,   and  remarked  that  this                                                               
provision does not  seem to be drafted from  the consumer's point                                                               
of view and, thus, concerns him.                                                                                                
                                                                                                                                
MR. SHAFTEL replied:                                                                                                            
                                                                                                                                
     We've  used interim  accountings  without this  statute                                                                    
     because we  feel it's  to the  beneficiary's advantage,                                                                    
     as  well as  ... for  the trustee's  protection, to  at                                                                    
     least  annually  give  an  accounting   and  set  up  a                                                                    
     procedure.   And  [we've] done  this  just through  the                                                                    
     court system,  where we'll  ask for  a hearing,  and we                                                                    
     will ask that if a  beneficiary has any objection, that                                                                    
     they come  in within  a period of  time and  make their                                                                    
     objection [known] at that hearing. ...                                                                                     
                                                                                                                                
Number 1723                                                                                                                     
                                                                                                                                
MR. SHAFTEL added:                                                                                                              
                                                                                                                                
     And we're doing  this with the hope that  that will ...                                                                    
     draw their attention to what's  been done over the past                                                                    
     year.   ...  It   seems  to   me  it's   much  to   the                                                                    
     beneficiary's  advantage to  be  focusing on  [his/her]                                                                    
     trust every  year than to  have a long period  of time.                                                                    
     Now, some  trusts that we're  talking about  that would                                                                    
     be  covered  by  this  statute,  the  one  I  was  just                                                                    
     referring to,  went on for  about 10 years and  then it                                                                    
     was   wrapped   up.     It   was,   in  effect,   trust                                                                    
     administration after  the surviving  spouse died.   The                                                                    
     trusts  that  [Mr.  Blattmachr  is]  referring  to  are                                                                    
     trusts that  don't have final  accountings -  they just                                                                    
     continue on and on and on.                                                                                                 
                                                                                                                                
     And it  does make a lot  of sense for both  the trustee                                                                    
     but also equally for the  beneficiary to focus on these                                                                    
     trusts  every  year  and have  an  interim  accounting,                                                                    
     which is what we're talking  about here, that they have                                                                    
     to focus  on.  But  if something's wrong, it  will have                                                                    
     occurred  in  the  last  year   and  they'll  have  the                                                                    
     evidence  and the  people around  who  can verify  that                                                                    
     something  went wrong.   It  seems  to me  it's to  the                                                                    
     beneficiary's  disadvantage to  be lulled  into letting                                                                    
     that trust  just sit  there and  at some  point perhaps                                                                    
     they'll look  at it, have  years go by -  where there's                                                                    
     been [a]  breach of trust  or something else  ... where                                                                    
     they were  harmed - and  then have  to go back  and try                                                                    
     [to] figure  out what  happened and  try [to]  find the                                                                    
     people and gather the evidence.                                                                                            
                                                                                                                                
     So there's  some real advantage in  interim accountings                                                                    
     and   having  a   procedure  that   focuses  both   the                                                                    
     beneficiary, for the  beneficiary's protection, and the                                                                    
     trustee, for  the trustee's  protection, and  gets that                                                                    
     segment of time resolved one way or another.                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG opined, though,  that under the language                                                               
in Section  4, a plaintiff's  lawyer could simply make  the claim                                                               
that  the   report  did   not  adequately   disclose  information                                                               
pertaining to a potential breach of trust.                                                                                      
                                                                                                                                
MR. SHAFTEL remarked:                                                                                                           
                                                                                                                                
     Adequate  disclosure  is  a  concept  that  we're  very                                                                    
     familiar with  in the trust  and estate area.   It's in                                                                    
     the Internal Revenue Code.   And ... that language that                                                                    
     was dropped  - ... "full  discloser" - ... was  felt to                                                                    
     be ambiguous  and require some type  of perfection that                                                                    
     couldn't  be reached.    So it's  not  a standard  that                                                                    
     we're  unfamiliar with.  ... Clever  attorneys in  both                                                                    
     sides can  always make arguments, and  ultimately those                                                                    
     will have  to be resolved  by the court system  if they                                                                    
     get that  far.   But again, what  this provision,  as I                                                                    
     understand  it,  is  designed  to  do,  is  to  provide                                                                    
     statutory support for interim accountings.                                                                                 
                                                                                                                                
Number 1491                                                                                                                     
                                                                                                                                
MR. SHAFTEL asked Representative Gara to comment on the consumer                                                                
protection aspect of this provision.                                                                                            
                                                                                                                                
REPRESENTATIVE GARA remarked:                                                                                                   
                                                                                                                                
     I  just  think you're  going  to  get  a mixed  bag  of                                                                    
     clients:    those who  pay  really  close attention  to                                                                    
     their interim statements, and those  who don't. ... I'm                                                                    
     thinking  of  a  compromise  that  seems  to  meet  the                                                                    
     concerns  that   you  mentioned  ...  [and]   meets  my                                                                    
     concerns too.   The  compelling argument that  you make                                                                    
     is, you don't  want somebody, 100 years  later, to file                                                                    
     a negligence claim against you.   That makes sense.  On                                                                    
     the  other hand,  I'm not  so  comfortable giving  them                                                                    
     only six  months.  That's  one thing.  The  other thing                                                                    
     is, again, I understand  [that] you don't want somebody                                                                    
     to  file a  ... claim  against you  a long,  long, long                                                                    
     time later, but if it's fraud  or theft of deceit - and                                                                    
     there are commonly exceptions for  that kind of conduct                                                                    
     in  the  law  -  I  guess I'm  not  so  thrilled  about                                                                    
     shortening  the   statute  of  limitations   for  those                                                                    
     things.                                                                                                                    
                                                                                                                                
     So I  what I'm  thinking of  is changing  the six-month                                                                    
     period, [for]  the interim accounting, to  three years;                                                                    
     you don't have to wait your  whole life to hear about a                                                                    
     claim  in that  circumstance, just  three years,  [and]                                                                    
     we've  historically had  statute of  limitations up  to                                                                    
     six years and ten years  for property claims and things                                                                    
     like that.   That would  be one  thing.  And  the other                                                                    
     would  be  to  say  that the  new  amendment  that  you                                                                    
     propose,  that  applies  to a  date  from  the  interim                                                                    
     accounting,  applies for  breach  of  trust except  for                                                                    
     when that breach is fraud, theft, or deceit.                                                                               
                                                                                                                                
REPRESENTATIVE GARA continued:                                                                                                  
                                                                                                                                
     And I  can imagine  cases of  fraud, theft,  or deceit.                                                                    
     ...  In a  down  stock market  you  expect that  you're                                                                    
     portfolio is going to shrink  and you don't notice that                                                                    
     [it] shrunk by  an extra $100,000 and  [that] it shrunk                                                                    
     by  the  extra  $100,000  because  somebody  took  your                                                                    
     money,  and, as  somebody  who expected  to lose  money                                                                    
     during  that  down  market,  you  just  didn't  go  and                                                                    
     question whether  or not somebody ...  stole money from                                                                    
     you, but  I suppose somebody  could come back  and say,                                                                    
     later  on, you  should  have noticed,  you should  have                                                                    
     been more mistrustful.  And  so what I'm thinking of is                                                                    
     just that,  to give you  what you're asking  for except                                                                    
     for in the those cases  of egregious conduct, and to do                                                                    
     it for three  years rather than six months.   How would                                                                    
     that sit with you?                                                                                                         
                                                                                                                                
MR. SHAFTEL  replied:  "Personally,  I don't have a  problem with                                                               
either  of those  changes,  but I  would like  to  defer to  [Mr.                                                               
Blattmachr]  and  Peter  Brautigam   who  are  involved  in  this                                                               
provision."                                                                                                                     
                                                                                                                                
Number 1363                                                                                                                     
                                                                                                                                
PETER B. BRAUTIGAM, Attorney at Law, Hartig Rhodes Hoge &                                                                       
Lekisch, PC, offered:                                                                                                           
                                                                                                                                
     My  only thought  is ...  that three  years seems  very                                                                    
     long,  especially  for  an  interim  accounting  issue,                                                                    
     because that can affect future  accountings and the way                                                                    
     ... the trustees  are going to be  investing the money.                                                                    
     I'll defer to [Mr. Blattmachr]  on that issue.  But the                                                                    
     other  point is,  the current  statute  provides for  a                                                                    
     six-months  [period] after  the final  accounting.   Is                                                                    
     the proposal that  that would also be  changed to three                                                                    
     years and,  if so, I  would encourage the group  not to                                                                    
     go for a three-year [period] on the final accounting.                                                                      
                                                                                                                                
REPRESENTATIVE GARA responded:  "My understanding is that you                                                                   
have changed the date from the final accounting to from the                                                                     
interim accounting.  Right?"                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered his belief  that Representative                                                               
Gara is  suggesting that they change  the "six months" on  line 6                                                               
of page 5, and leave the "three years"  on line 12 of page 5.  He                                                               
opined that  it might  be best  to have  a three-year  statute of                                                               
limitations  on the  final accounting  and a  shorter statute  of                                                               
limitations on the interim accounting.   He suggested making it a                                                               
two-year statute of limitations for the interim accounting.                                                                     
                                                                                                                                
MR. BRAUTIGAM  said that if "a  client of mine would  go to court                                                               
and get a  final accounting approved by the court,  what we would                                                               
advise  our trustees  [to  do]  is to  hold  onto  the money  for                                                               
another three years,  which would require tax  returns and things                                                               
of  that nature."   He  added that  he would  prefer a  six-month                                                               
statute of limitations on the final accounting.                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG  pointed  out,  however,  that  current                                                               
language  in   the  bill  specifies   a  three-year   statute  of                                                               
limitations on  final accountings.  Thus,  wouldn't Mr. Brautigam                                                               
give that advice anyway? he asked.                                                                                              
                                                                                                                                
MR. BRAUTIGAM replied that it would  depend on who the trustee is                                                               
and what the issues are.                                                                                                        
                                                                                                                                
MR. BLATTMACHR  concurred that it  would depend in the  facts and                                                               
circumstances.                                                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  suggested that this issue  be looked at                                                               
more thoroughly before [moving the bill from committee].                                                                        
                                                                                                                                
Number 1188                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  relayed that  SB 344  would be  held over  for the                                                               
purpose of considering this issue further.                                                                                      
                                                                                                                                

Document Name Date/Time Subjects