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.