Bill Text 28th Legislature
- Session Laws
00 Enrolled SB 65
01 Relating to property exemptions for retirement plans, individual retirement accounts, and
02 Roth IRAs; relating to transfers of individual retirement plans; relating to the rights of
03 judgment creditors of members of limited liability companies and partners of limited liability
04 partnerships; relating to the Uniform Probate Code, including pleadings, orders, liability, and
05 notices under the Uniform Probate Code and the Alaska Principal and Income Act, the
06 appointment of trust property, the Alaska Uniform Prudent Investor Act, co-trustees, trust
07 protectors, and trust advisors; relating to the Alaska Principal and Income Act; relating to the
08 Alaska Uniform Transfers to Minors Act; relating to the disposition of human remains;
09 relating to insurable interests for certain insurance policies; relating to restrictions on transfers
10 of trust interests; relating to discretionary interests in irrevocable trusts; relating to the
11 community property of married persons; and amending Rule 64, Alaska Rules of Civil
01 Procedure, and Rule 301(a), Alaska Rules of Evidence.
03 * Section 1. AS 09.38.017(a) is amended to read:
04 (a) In addition to the exemption under AS 09.38.015(b), the following are
05 exempt from a claim of an individual's or beneficiary's creditor:
06 (1) the interest of the individual or beneficiary in a retirement plan;
08 (2) the money or other assets payable to the individual from a
09 retirement plan;
10 (3) the interest of a beneficiary in
11 (A) a retirement plan if the beneficiary acquired the
12 interest as a result of the death of an individual; the beneficiary's interest
13 is exempt to the same extent that the individual's interest was exempt
14 immediately before the individual died;
15 (B) an individual retirement account that has been
16 transferred by the individual to the beneficiary during the individual's
17 lifetime; the beneficiary's interest is exempt to the same extent that the
18 individual's interest was exempt immediately before the transfer to the
20 (4) the money or other assets payable to a beneficiary from
21 (A) a retirement plan if the beneficiary acquired the money
22 or other assets as a result of the death of an individual who would have
23 had, during the individual's life, an exemption in the money or other
25 (B) an individual retirement account if the beneficiary
26 acquired the money or other assets as a result of the transfer of the money
27 or other assets by an individual who would have had, at the time of the
28 transfer, an exemption in the money or other assets.
29 * Sec. 2. AS 09.38.017(d) is amended to read:
30 (d) A retirement plan exempt from claims under (a) of this section is
01 conclusively presumed to be a spendthrift trust under this section, except for
02 transfers or assignments under AS 34.40.118.
03 * Sec. 3. AS 09.38.017(e) is amended to read:
04 (e) In this section,
05 (1) "alternate payee" has the meaning given in 26 U.S.C. 414(p)(8);
06 (2) "beneficiary" includes a person, trust, or trustee who has,
07 before or after the death of an individual, a direct or indirect beneficial interest
08 in a retirement plan; in this paragraph, "beneficial interest" includes an interest
09 that is acquired
10 (A) as a designated beneficiary, survivor, co-annuitant,
11 heir, or legatee; or
12 (B) if excludible from gross income under 26 U.S.C.
13 (Internal Revenue Code), as a
14 (i) rollover under 26 U.S.C. 408 or 26 U.S.C. 408A;
15 (ii) distribution from one retirement plan to another
16 retirement plan; or
17 (iii) distribution that is similar to (i) or (ii) of this
19 (3) "individual" means [AN INDIVIDUAL WHO IS] a participant in,
20 an owner [A BENEFICIARY] of, or an alternate payee of a retirement plan;
21 (4) "individual retirement account" means an individual
22 retirement account established under 26 U.S.C. 408 or a Roth IRA established
23 under 26 U.S.C. 408A;
24 (5) [(3)] "retirement plan" means
25 (A) a retirement plan that is qualified under 26 U.S.C. 401(a),
26 26 U.S.C. 403(a), 26 U.S.C. 403(b), [26 U.S.C. 408, 26 U.S.C. 408A, OR] 26
27 U.S.C. 409, 26 U.S.C. 414(d), 26 U.S.C. 414(e), or 26 U.S.C. 457 (Internal
28 Revenue Code);
29 (B) an individual retirement account; and
30 (C) the teachers' retirement system under AS 14.25, the
31 judicial retirement system under AS 22.25, the public employees'
01 retirement system under AS 39.35, and the elected public officers'
02 retirement system under former AS 39.37.
03 * Sec. 4. AS 10.50.380(c) is amended to read:
04 (c) This section provides the exclusive remedy that a judgment creditor of a
05 member or a member's assignee may use to satisfy a judgment out of the judgment
06 debtor's interest in the limited liability company. Other legal or equitable remedies,
07 including foreclosure on the member's limited liability company interest and a court
08 order for directions, accounts, and inquiries that the debtor member might have made,
09 are not available to the judgment creditor attempting to satisfy a judgment out of the
10 judgment debtor's interest in the limited liability company and may not be ordered by
11 a court.
12 * Sec. 5. AS 10.50.380 is amended by adding a new subsection to read:
13 (e) This section applies to limited liability companies with only one member
14 as well as to limited liability companies with more than one member.
15 * Sec. 6. AS 13.06.120 is amended to read:
16 Sec. 13.06.120. Pleadings; when parties bound by orders; notice. In any
17 proceedings involving trusts, nonprobate assets, or estates of decedents, minors,
18 protected persons, or incapacitated persons brought under AS 13.06 - AS 13.36 or
19 AS 13.38, [INCLUDING ANY JUDICIALLY SUPERVISED SETTLEMENTS AND
20 ANY NONJUDICIAL PROCEEDINGS AND SETTLEMENTS,] the following
22 (1) interests to be affected shall be described in pleadings that give
23 reasonable information to owners by name or class, by reference to the instrument
24 creating the interests, or in other appropriate manner;
25 (2) persons are bound by orders binding others in the following cases:
26 (A) orders binding the sole holder or all co-holders of a power
27 of revocation or a general or nongeneral power of appointment, including one
28 in the form of a power of amendment, bind other persons to the extent their
29 interests, as objects, takers in default, or otherwise, are subject to the power;
30 (B) to the extent there is no conflict of interest between them or
31 among persons represented, orders binding a conservator bind the person
01 whose estate the conservator controls; orders binding a guardian bind the ward
02 if no conservator of the estate has been appointed; orders binding a trustee bind
03 beneficiaries of the trust in proceedings to probate a will establishing or adding
04 to a trust, to review the acts or accounts of a prior fiduciary, and in proceedings
05 involving creditors or other third parties; orders binding a personal
06 representative bind persons interested in the undistributed assets of a
07 decedent's estate in actions or proceedings by or against the estate; and orders
08 binding an agent having authority to act with respect to the particular questions
09 or dispute bind the principal; if there is no conflict of interest and no
10 conservator or guardian has been appointed, a parent may represent the minor
12 (C) an unborn person, a minor, an incapacitated person, or a
13 person whose identity or location is unknown or not reasonably ascertainable
14 who is not otherwise represented is bound by an order to the extent the interest
15 is adequately represented by another party having a substantially identical
16 interest in the proceeding;
17 (D) with regard to interests given upon the happening of a
18 certain event to persons who comprise a certain class, orders binding the living
19 persons who would constitute the class, if the event had happened immediately
20 before the commencement of the proceeding, bind all members of the class;
21 (E) with regard to an interest given to a living person when the
22 same interest or a share of the interest is to pass to the surviving spouse or to
23 persons who are or might be the distributees, devisees, heirs, or issue of the
24 living person upon the happening of a future event, orders binding the living
25 person bind the surviving spouse, distributees, devisees, heirs, or issue of the
26 living person;
27 (F) with regard to interests given to a person or a class of
28 persons, or to both, upon the happening of a future event, if the same interest
29 or a share of the interest is to pass to another person or class of persons, or to
30 both, upon the happening of an additional future event, orders binding the
31 living person or class of persons who would take the interest upon the
01 happening of the first event bind the persons and classes of persons who might
02 take on the happening of the additional future event;
03 (G) if a person is designated by a trust instrument to represent
04 and bind a born or unborn beneficiary of the trust and receive a notice,
05 information, accounting, or report for the beneficiary, then the beneficiary is
06 bound by an order binding the designated person; in this subparagraph,
07 (i) the settlor may make the designation in the trust
08 instrument, in a separate document, or by a trust protector authorized in
09 the trust instrument to make the designation;
10 (ii) except as otherwise provided in this subparagraph, a
11 person designated under (i) of this subparagraph may not represent and
12 bind a beneficiary while the designated person is serving as trustee;
13 (iii) except as otherwise provided in this subparagraph,
14 a person designated under (i) of this subparagraph may not represent
15 and bind another beneficiary if the designated person also is a
16 beneficiary, unless the designated person was named by the settlor, is
17 the beneficiary's spouse, or is a grandparent or descendant of a
18 grandparent of the beneficiary or the beneficiary's spouse; in this sub-
19 subparagraph, "spouse" means the individual to whom the beneficiary
20 is married and with whom the beneficiary is living, and a physical
21 separation primarily for education, business, health, and similar reasons
22 does not prevent the individual from being considered to be living with
23 the beneficiary;
24 (3) a person representing another person under (2)(A) - (F) of this
25 section and a person designated under (2)(G)(i) of this section are not liable to the
26 beneficiary whose interests are represented, or to a person claiming through that
27 beneficiary, for an action or omission to act made in good faith;
28 (4) notice is required as follows:
29 (A) notice as prescribed by AS 13.06.110 shall be given to
30 every interested person or to one person who can bind an interested person as
31 described in (2)(A), (B), or (D) - (G) of this section; notice may be given both
01 to a person and to another person who may bind the person;
02 (B) notice is given to unborn persons, a minor, an incapacitated
03 person, or a person whose identity or location is unknown or not reasonably
04 ascertainable, and persons who are not represented under (2)(A), (B), or (D) -
05 (G) of this section, by giving notice to all known persons whose interests in the
06 proceedings are substantially identical to those of the unborn persons, the
07 minor, the incapacitated person, or the person whose identity or location is
08 unknown or not reasonably ascertainable;
09 (5) at any point in a proceeding, a court may appoint a guardian ad
10 litem to represent the interest of an unborn person, a minor, an incapacitated person, or
11 a person whose identity or address is unknown or not reasonably ascertainable, if the
12 court determines that representation of the interest otherwise would be inadequate; if
13 not precluded by conflict of interests, a guardian ad litem may be appointed to
14 represent several persons or interests; the court shall set out its reasons for appointing
15 a guardian ad litem as a part of the record of the proceeding.
16 * Sec. 7. AS 13.06.120 is amended by adding a new subsection to read:
17 (b) In this section,
18 (1) "order" means a judicial order, a nonjudicial order, the result of the
19 settlement of an account of a fiduciary under a procedure authorized by AS 13.06 -
20 AS 13.36 or AS 13.38, and a settlement agreement resulting from a proceeding;
21 (2) "proceeding" means a judicial proceeding, a nonjudicial
22 proceeding, the settlement of an account of a fiduciary under a procedure authorized
23 by AS 13.06 - AS 13.36 or AS 13.38, and a settlement negotiation, even if the
24 settlement negotiation does not involve a judicial or nonjudicial third party who
25 decides or facilitates a settlement.
26 * Sec. 8. AS 13.36.072 is amended by adding a new subsection to read:
27 (c) Notwithstanding the other provisions of this section, if the terms of a trust
28 instrument provide for the appointment of more than one trustee but confer on one or
29 more of the trustees, to the exclusion of other trustees, the power to direct or prevent
30 specified actions of other trustees, the excluded trustees shall act in accordance with
31 the exercise of the power. An excluded trustee under this subsection is not liable,
01 individually or as a fiduciary, for a consequence that results from complying with the
02 exercise of the power, regardless of the information available to the excluded trustee.
03 An excluded trustee does not have an obligation to review, inquire, investigate, or
04 make recommendations or evaluations with respect to the exercise of the power. A
05 trustee having the power is liable to the beneficiaries as a fiduciary with respect to the
06 exercise of the power as if the excluded trustees were not in office and has the
07 exclusive obligation to account to and to defend an action brought by the beneficiaries
08 with respect to the exercise of the power. In this subsection, "power" means the power
09 to direct or prevent specified actions by other trustees.
10 * Sec. 9. AS 13.36.157 is repealed and reenacted to read:
11 Sec. 13.36.157. Exercise of power of appointment. (a) An authorized trustee
12 with unlimited discretion to invade trust principal may appoint part or all of that
13 principal to a trustee of an appointed trust for, and only for the benefit of, one or more
14 current beneficiaries of the invaded trust to the exclusion of other current
15 beneficiaries. A permissible appointee of a power of appointment held by a
16 beneficiary of the appointed trust is not considered a beneficiary of the appointed trust,
17 regardless of whether the permissible appointee is a current beneficiary or a successor
18 and remainder beneficiary.
19 (b) An authorized trustee exercising the power under (a) of this section may
20 grant a discretionary power of appointment, including a presently exercisable power of
21 appointment, in the appointed trust to one or more of the current beneficiaries of the
22 invaded trust, to the extent that the beneficiary who is granted the power to appoint is
23 authorized to receive the principal outright under the terms of the invaded trust. A
24 permissible appointee is not limited to the beneficiaries of the invaded trust.
25 (c) Under (a) and (b) of this section, if the beneficiaries of the invaded trust
26 are described by a class, the beneficiaries of the appointed trust may include present or
27 future members of that class.
28 (d) An authorized trustee with the power to invade trust principal but without
29 unlimited discretion may appoint part or all of the principal of the trust to a trustee of
30 an appointed trust if the current beneficiaries of the appointed trust are the same as the
31 current beneficiaries of the invaded trust and the successor and remainder beneficiaries
01 of the appointed trust are the same as the successor and remainder beneficiaries of the
02 invaded trust. The shares of the current beneficiaries of the appointed trust must be the
03 same as the shares of the current beneficiaries of the invaded trust, and the shares of
04 the successor and remainder beneficiaries of the appointed trust must be the same as
05 the shares of the successor and remainder beneficiaries of the invaded trust.
06 (e) If the authorized trustee exercises the power under (d) of this section, the
07 appointed trust must include the same standard authorizing the trustee to distribute the
08 income or invade the principal of the appointed trust as the standard in the invaded
09 trust. However, the standard authorizing the trustee to distribute the income or invade
10 the principal of the appointed trust may be changed if the trustee appoints to an
11 appointed trust that is a special needs trust, a pooled trust, or a third-party trust.
12 (f) If an authorized trustee exercises the power under (d) and (e) of this section
13 to extend the duration of the appointed trust beyond the duration of the invaded trust
14 for any period after the invaded trust would have otherwise terminated under the
15 provisions of the invaded trust, the appointed trust, in addition to the language
16 required to be included in the appointed trust under (e) of this section, may also
17 provide an additional trustee with unlimited discretion to invade the principal of the
18 appointed trust during the extended duration. The trustee with unlimited discretion
19 continues to be subject to the restrictions in (d) - (h) of this section.
20 (g) Under (d) - (f) of this section, if the beneficiaries of the invaded trust are
21 described by a class, the beneficiaries of the appointed trust include present or future
22 members of that class.
23 (h) If the authorized trustee exercises the power under (d) - (g) of this section
24 and if the invaded trust grants a power of appointment to a beneficiary of the trust, the
25 appointed trust must grant this power of appointment in the appointed trust, and the
26 class of permissible appointees shall be the same as in the invaded trust.
27 * Sec. 10. AS 13.36 is amended by adding new sections to read:
28 Sec. 13.36.158. Additional provisions relating to exercise of a power of
29 appointment. (a) An exercise of the power to invade trust principal under
30 AS 13.36.157 is the exercise of a special power of appointment.
31 (b) The appointed trust to which an authorized trustee appoints the assets of
01 the invaded trust under AS 13.36.157 may have a duration that is longer than the
02 duration set out in the invaded trust.
03 (c) If an authorized trustee has unlimited discretion to invade the principal of a
04 trust and if the same trustee or another trustee has a power, not dependent on unlimited
05 discretion, to invade principal under the trust instrument, the authorized trustee having
06 unlimited discretion may exercise the power of appointment under AS 13.36.157(a) -
08 (d) An authorized trustee may exercise the power to appoint in favor of an
09 appointed trust under AS 13.36.157 whether or not there is a current need to invade
10 principal under the terms of the invaded trust.
11 (e) An authorized trustee exercising the power under AS 13.36.157 -
12 13.36.159 has a fiduciary duty to exercise the power in the best interests of one or
13 more proper objects of the exercise of the power and as a prudent person would
14 exercise the power under the prevailing circumstances. The authorized trustee may not
15 exercise the power under AS 13.36.157 - 13.36.159 if there is substantial evidence of a
16 contrary intent of the settlor and it cannot be established that the settlor would be
17 likely to have changed this intention under the circumstances existing at the time the
18 trustee exercises the power. The provisions of the invaded trust may not be viewed
19 alone as substantial evidence of a contrary intent of the settlor unless the invaded trust
20 expressly prohibits the exercise of the power in the manner intended by the authorized
22 (f) The provisions of AS 13.36.157 - 13.36.159 may not be construed to
23 abridge the right of a trustee to appoint property further in trust under the terms of the
24 governing instrument of a trust, another provision of law, or common law, or as
25 directed by a court having jurisdiction over the trust.
26 (g) Nothing in AS 13.36.157 - 13.36.159 creates or implies a duty to exercise
27 a power to invade principal. An inference of impropriety may not be made, and
28 liability is not incurred, as a result of an authorized trustee not exercising the power
29 conferred under AS 13.36.157.
30 (h) A power authorized by AS 13.36.157 may be exercised, subject to the
31 provisions of AS 13.36.159(a), unless expressly prohibited by the terms of the
01 governing instrument. A general prohibition against amending or revoking the invaded
02 trust and a provision that constitutes a spendthrift clause do not preclude the exercise
03 of a power under AS 13.36.157.
04 (i) An authorized trustee may not exercise a power authorized by
05 AS 13.36.157 to
06 (1) reduce, limit, or modify a beneficiary's current right to a mandatory
07 distribution of income or principal, a mandatory annuity or unitrust interest, a right to
08 withdraw a percentage of the value of the trust, or a right to withdraw a specified
09 dollar amount, if the mandatory right has come into effect with respect to the
10 beneficiary, but the mandatory right may be reduced, limited, or modified during any
11 extended duration of the trust; however, notwithstanding the other provisions in this
12 paragraph, but subject to the other limitations in AS 13.36.157 - 13.36.159, an
13 authorized trustee may exercise a power authorized by AS 13.36.157 to appoint to an
14 appointed trust that is a special needs trust, a pooled trust, or a third-party trust;
15 (2) decrease or indemnify against a trustee's liability or exonerate a
16 trustee from liability for failure to exercise reasonable care, diligence, and prudence
17 unless the court having jurisdiction over the trust specifies otherwise;
18 (3) eliminate a provision granting another person the right to remove
19 or replace the authorized trustee exercising the power under AS 13.36.157 unless a
20 court having jurisdiction over the trust specifies otherwise;
21 (4) fix as binding and conclusive the value of an asset for purposes of
22 distribution, allocation, or otherwise; or
23 (5) jeopardize
24 (A) the deduction or exclusion originally claimed with respect
25 to a contribution to the invaded trust that qualified for the annual exclusion
26 under 26 U.S.C. 2503(b), the marital deduction under 26 U.S.C. 2056(a) or 26
27 U.S.C. 2523(a), or the charitable deduction under 26 U.S.C. 170(a), 26 U.S.C.
28 642(c), 26 U.S.C. 2055(a), or 26 U.S.C. 2522(a) (Internal Revenue Code);
29 (B) the qualification of a transfer as a direct skip under 26
30 U.S.C. 2642(c) (Internal Revenue Code);
31 (C) the election to treat a corporation as a subchapter S
01 corporation under 26 U.S.C. 1362 (Internal Revenue Code); or
02 (D) another specific tax benefit for which a contribution
03 originally qualified for income, gift, estate, or generation-skipping transfer tax
04 purposes under 26 U.S.C. (Internal Revenue Code).
05 (j) Before exercising the power under AS 13.36.157, an authorized trustee
06 shall consider the tax implications of the exercise of the power.
07 (k) An authorized trustee may not exercise a power described in AS 13.36.157
08 - 13.36.159 in violation of the limitations on validity in AS 34.27.051 or 34.27.100, or
09 the restrictions on exercising certain powers in AS 13.36.153 by trustees who are not
10 independent. A violation voids the entire exercise of the power unless the exercise is
11 modified to correct the violation.
12 (l) Unless a court having jurisdiction over the trust directs otherwise, an
13 authorized trustee may not exercise a power authorized by AS 13.36.157 to change the
14 provisions regarding the determination of the compensation of a trustee. The
15 commissions or other compensation payable to the trustees of the invaded trust may
16 continue to be paid to the trustees of the appointed trust during the term of the
17 appointed trust and shall be determined in the same manner as for the invaded trust.
18 (m) A trustee may not receive a payment, a commission, or other
19 compensation for appointing property from the invaded trust to an appointed trust
20 under AS 13.36.157. However, a trustee may be compensated at a reasonable rate for
21 the time spent considering and implementing the exercise of a power to appoint.
22 (n) Unless the invaded trust expressly provides otherwise, the provisions in
23 AS 13.36.157 - 13.36.159 apply to
24 (1) a trust, whether testamentary or inter vivos, governed by the laws
25 of this state, including a trust whose governing law has been changed to the laws of
26 this state; and
27 (2) a trust that has a trustee who is an individual domiciled in this state,
28 or a trustee that is an entity having an office in this state, if a majority of the trustees
29 select this state as the location for the primary administration of the trust and the
30 selection is made by an instrument in writing that is signed and acknowledged by a
31 majority of the trustees; the instrument exercising this selection shall be kept with the
01 records of the invaded trust.
02 (o) In this section, "Internal Revenue Code" means the Internal Revenue Code
03 of the United States (26 U.S.C.) as it exists on the effective date of this Act and as it is
04 amended from time to time.
05 Sec. 13.36.159. Implementation of power of appointment. (a) Unless the
06 authorized trustee provides otherwise, the appointment of
07 (1) all of the assets making up the principal of the invaded trust to an
08 appointed trust includes subsequently discovered assets of the invaded trust and
09 undistributed principal of the invaded trust acquired after the appointment to the
10 appointed trust;
11 (2) a part but not all of the assets making up the principal of the
12 invaded trust to an appointed trust may not include subsequently discovered assets
13 belonging to the invaded trust or principal paid to or acquired by the invaded trust
14 after the appointment to the appointed trust; those subsequently discovered assets
15 remain the assets of the invaded trust.
16 (b) The exercise of the power to appoint to an appointed trust under
17 AS 13.36.157 shall be evidenced by an instrument in writing that is signed, dated, and
18 acknowledged by the authorized trustee. The exercise of the power is effective 30 days
19 after the date of service of the instrument as specified in (d) of this section, unless the
20 persons entitled to notice consent in writing to a sooner effective date.
21 (c) An authorized trustee may exercise the power authorized by AS 13.36.157
22 without the consent of the settlor or a person interested in the invaded trust and
23 without court approval. However, an authorized trustee may seek court approval for
24 the exercise. When seeking court approval, notice shall be sent to all qualified
26 (d) A copy of the invaded trust, the appointed trust, and the instrument
27 exercising the power shall be delivered to
28 (1) the settlor, if living, of the invaded trust;
29 (2) a person having the right, under the terms of the invaded trust, to
30 remove or replace the authorized trustee exercising the power under AS 13.36.157;
01 (3) a qualified beneficiary or a person who may represent and bind a
02 qualified beneficiary under AS 13.06.120.
03 (e) Notice under (d) of this section to a qualified beneficiary is not required if
04 the settlor has exempted the authorized trustee from providing notification or
05 information to beneficiaries under AS 13.36.080(b). Notice under (d) of this section
06 shall be provided under AS 13.06.110.
07 (f) The instrument exercising the power must state whether the appointment is
08 of all or part of the assets making up the principal of the invaded trust and, if a part,
09 the approximate percentage of the value of the principal of the invaded trust that is the
10 subject of the appointment. A failure to state whether the appointment is of all or part
11 of the assets creates a presumption that only part of the assets is to be appointed.
12 (g) A person entitled to notice under (d) of this section may object to the
13 trustee's exercise of the power under AS 13.36.157 - 13.36.159 by serving a written
14 notice of objection on the trustee before the effective date of the exercise of the power.
15 The failure to object does not constitute consent.
16 (h) The receipt of a copy of the instrument exercising the power does not,
17 before the expiration of the limitation period in AS 13.36.100 with respect to a report
18 disclosing the exercise, affect the right of a qualified beneficiary to object to the
19 exercise of the power under AS 13.36.157 and to request the court to modify or to
20 reverse the exercise.
21 (i) A copy of the instrument exercising the power shall be kept with the
22 records of the invaded trust.
23 * Sec. 11. AS 13.36.215 is amended by adding a new subsection to read:
24 (b) In AS 13.36.157 - 13.36.159,
25 (1) "appointed trust" means an irrevocable trust that receives principal
26 from an invaded trust under AS 13.36.157, including a new trust created by the settlor
27 of the invaded trust or by the trustees, acting in that capacity, of the invaded trust;
28 (2) "authorized trustee" means, with regard to an invaded trust, a
29 trustee with the authority to pay trust principal to or for a current beneficiary; in this
30 paragraph, "trustee" does not include a settlor or a beneficiary to whom income or
31 principal must be paid, currently or in the future, or who is or will become eligible to
01 receive a distribution of income or principal in the discretion of the trustee other than
02 by the exercise of a power of appointment held in a nonfiduciary capacity;
03 (3) "current beneficiary" means a person or, with regard to a class of
04 persons, a person who is a member of the class, to whom a trustee may distribute
05 principal when exercising a power under AS 13.36.157;
06 (4) "invade" means pay directly to the beneficiary of a trust or apply to
07 the benefit of a beneficiary;
08 (5) "invaded trust" means an irrevocable inter vivos or testamentary
09 trust the principal of which is appointed under AS 13.36.157;
10 (6) "pooled trust" means a trust described in 42 U.S.C. 1396p(d)(4)(C)
11 that meets the requirements for a pooled trust under the regulations of this state
12 relating to the Medicaid treatment of trusts;
13 (7) "principal" means the assets of a trust, including accrued and
14 accumulated income, but excluding income that is currently required to be distributed;
15 (8) "special needs trust" means a trust under 42 U.S.C. 1396p(d)(4)(A)
16 that meets the requirements for a special needs trust under the regulations of this state
17 relating to the Medicaid treatment of trusts;
18 (9) "third-party trust" means a trust that is
19 (A) established by a third party with the assets of the third party
20 to provide for supplemental needs for a person eligible when the trust is
21 created or at a future time for needs-based public assistance; and
22 (B) exempt from the provisions of the regulations of this state
23 relating to the Medicaid treatment of trusts;
24 (10) "unlimited discretion" means the unlimited right to distribute
25 principal if the right is not restricted by an ascertainable standard under 26 C.F.R.
27 * Sec. 12. AS 13.36.225(a) is amended to read:
28 (a) Except as otherwise provided in (b) of this section and AS 13.36.273, a
29 trustee who invests and manages trust assets owes a duty to the beneficiaries of the
30 trust to comply with the prudent investor rule set out in AS 13.36.230 - 13.36.290.
31 * Sec. 13. AS 13.36 is amended by adding a new section to read:
01 Sec. 13.36.273. Trustee duties relating to insurance. (a) With respect to a
02 contract for life insurance acquired or retained for a trust on the life of a qualified
03 person, a trustee does not have a duty to determine whether the contract was procured
04 or effected in accordance with AS 21.42.020 unless the trust instrument provides
05 otherwise or unless the trustee applied for or accepted ownership of a contract of life
06 insurance and had knowledge that
07 (1) when the contract of life insurance was issued, the benefits were
08 not payable to a person specified in AS 21.42.020; or
09 (2) the contract was purchased with resources or guarantees directly or
10 indirectly provided by a person who, when the contract was entered into, did not have
11 an insurable interest in the insured, and, when the contract was entered into, there was
12 a verbal or written arrangement, agreement, or plan with a third party to transfer
13 ownership of the policy or the policy benefits in a manner that would violate the law
14 of this state.
15 (b) With respect to a contract for life insurance acquired or retained for a trust
16 on the life of a qualified person, if this subsection applies under (c) of this section, a
17 trustee does not have a duty to
18 (1) determine whether a contract of life insurance is a proper
20 (2) investigate the financial strength of the person issuing the life
21 insurance policy;
22 (3) determine whether to exercise a policy option available under the
24 (4) diversify the contract or the assets of the trust with respect to the
25 contract; or
26 (5) inquire about or investigate the health or financial condition of an
28 (c) Unless the trust instrument provides otherwise, (b) of this section applies
29 to a trustee if
30 (1) the trust instrument refers to this section and makes this section
31 applicable to contracts for life insurance held by the trust; or
01 (2) the trustee notifies the qualified beneficiaries or a person who may
02 represent and bind the qualified beneficiaries under AS 13.06.120 that the trustee is
03 electing to have this section apply to a contract for life insurance held by the trust.
04 (d) The notice provided under (c)(2) of this section must include a copy or
05 restatement of (b) of this section and shall be provided
06 (1) by mailing a copy of the notice by certified, registered, or ordinary
07 first-class mail addressed to the person being notified at the post office address given
08 in the person's demand for notice, if any, or at the person's office or place of residence,
09 if known;
10 (2) by delivering a copy of the notice personally to the person being
11 notified; or
12 (3) if the address or identity of the person is not known and cannot be
13 ascertained with reasonable diligence, by publishing, at least once a week for three
14 consecutive weeks, a copy of the notice in a newspaper having general circulation in
15 the judicial district where one of the trustees is located.
16 (e) If, within 30 days after a person receives notice under (d)(1) or (2) of this
17 section or 30 days after the last date of publication of the notice under (d)(3) of this
18 section, a person delivers to the trustee a written objection to the application of (b) of
19 this section, (b) of this section does not apply until the objection is withdrawn.
20 (f) Under (a) and (b) of this section, the trustee is not liable to the beneficiaries
21 of the trust or to another person for a loss sustained with respect to a life insurance
22 contract to which (a) and (b) of this section apply.
23 (g) Notwithstanding the other provisions of this section, unless the duties have
24 been delegated to another person under AS 13.36.270, (a) and (b) of this section do
25 not apply to a contract for life insurance purchased from an affiliate of a trustee or for
26 which a trustee or an affiliate of the trustee receives a commission. In this subsection,
27 "affiliate" means a person who controls, is controlled by, or is under common control
28 with the trustee.
29 (h) A trustee who performs fiduciary or advisory services related to a policy of
30 life insurance to which (a)(1) or (2) of this section applies may not be compensated for
31 performing the services to which (a)(1) or (2) of this section applies.
01 (i) In this section, "qualified person" means a person who
02 (1) is an insured or a proposed insured under a policy of life insurance
03 or the spouse of that person; and
04 (2) provides
05 (A) the actual funds used to acquire or pay the premiums for
06 the policy; or
07 (B) assets the income or principal of which is used to acquire or
08 pay the premiums for the policy.
09 * Sec. 14. AS 13.36.370(a) is amended to read:
10 (a) A trust instrument may provide for the appointment of a
11 [DISINTERESTED THIRD PARTY TO ACT AS A] trust protector.
12 * Sec. 15. AS 13.36.375 is amended by adding a new subsection to read:
13 (c) Notwithstanding (b) of this section, if, by the terms of the trust instrument,
14 a trustee is designated to follow the directions of an advisor who is not designated in
15 the trust instrument as being a trustee, the trustee who, by the terms of the trust
16 instrument, is required to follow the directions of the advisor is not liable, individually
17 or as a fiduciary, to a beneficiary for a consequence of the trustee's compliance with
18 the advisor's directions, regardless of the information available to the trustee, and the
19 trustee does not have an obligation to review, inquire, investigate, or make
20 recommendations or evaluations with respect to the exercise of a power of the trustee
21 if the exercise of the power complies with the directions given to the trustee. An
22 advisor under this subsection is liable to the beneficiaries as a fiduciary with respect to
23 the exercise of the advisor's directions by a trustee as if the trustee were not in office,
24 and the advisor has the exclusive obligation to account to the beneficiaries and to
25 defend an action brought by the beneficiaries with respect to the exercise of the
26 advisor's directions by the trustee.
27 * Sec. 16. AS 13.38.200(b) is amended to read:
28 (b) In exercising a discretionary power of administration regarding a matter
29 within the scope of this chapter, whether granted by the governing instrument or this
30 chapter, including AS 13.38.210 and 13.38.300 - 13.38.435 [13.38.300 - 13.38.410], a
31 fiduciary shall administer a trust or estate impartially based on what is fair and
01 reasonable to all of the beneficiaries, except to the extent that the governing
02 instrument clearly manifests an intention that the fiduciary shall or may favor one or
03 more of the beneficiaries. A determination in accordance with this chapter is presumed
04 to be fair and reasonable to all of the beneficiaries.
05 * Sec. 17. AS 13.38.210(c) is amended to read:
06 (c) A trustee may not make an adjustment under this section if
07 (1) the adjustment would diminish the income interest in a trust that
08 requires all of the income to be paid at least annually to a spouse and for which a
09 federal estate tax or gift tax marital deduction would be allowed, in whole or in part, if
10 the trustee did not have the power to make the adjustment; the prohibition in this
11 paragraph does not apply to a trust after the trustee determines that the marital
12 deduction has not been claimed or has not been allowed;
13 (2) the adjustment would reduce the actuarial value of the income
14 interest in a trust to which a person transfers property with the intent to qualify for a
15 federal gift tax exclusion;
16 (3) the adjustment would change the amount payable to a beneficiary
17 as a fixed annuity or a fixed fraction of the value of the trust assets;
18 (4) the adjustment is from any amount that is permanently set aside for
19 charitable purposes under the governing instrument and for which a federal estate or
20 gift tax charitable deduction has been taken, unless both income and principal are
21 permanently set aside for charitable purposes under the governing instrument;
22 (5) possessing or exercising the power to make an adjustment would
23 cause an individual to be treated as the owner of all or part of the trust for federal
24 income tax purposes, and the individual would not be treated as the owner if the
25 trustee did not possess the power to make an adjustment;
26 (6) possessing or exercising the power to make an adjustment would
27 cause all or part of the trust assets to be subject to federal estate or gift tax with respect
28 to an individual, and the assets would not be subject to federal estate or gift tax with
29 respect to the individual if the trustee did not possess the power to make an
31 (7) the trustee is a beneficiary of the trust; or
01 (8) the trust has been converted to a unitrust under AS 13.38.300 -
02 13.38.435 [AS 13.38.300 - 13.38.410].
03 * Sec. 18. AS 13.38.300 is amended to read:
04 Sec. 13.38.300. Power to convert to unitrust. Unless expressly prohibited by
05 the governing instrument, a trustee may release the power to adjust under
06 AS 13.38.210 and may convert a trust into a unitrust as described in AS 13.38.300 -
07 13.38.435 [AS 13.38.300 - 13.38.410] if
08 (1) the trustee determines that the conversion will enable the trustee to
09 better carry out the intent of the settlor or testator and the purposes of the trust;
10 (2) the trustee gives written notice of the trustee's intention to release
11 the power to adjust, of the trustee's intention to convert the trust into a unitrust, of the
12 unitrust percentage selected, of the smoothing period selected, and of how the
13 unitrust will operate, including what initial decisions the trustee intends to [WILL]
14 make under AS 13.38.340 [THIS SECTION], to all the sui juris beneficiaries who
15 (A) are currently eligible to receive income from the trust;
16 (B) would be eligible, if a power of appointment were not
17 exercised, to receive income from the trust if the interest of all of the
18 beneficiaries eligible to receive income under (A) of this paragraph were to
19 terminate immediately before the giving of the notice; and
20 (C) would, if a power of appointment were not exercised,
21 receive a distribution of principal if the trust were to terminate immediately
22 before the giving of the notice;
23 (3) there are at least one sui juris beneficiary under (2)(A) of this
24 section and at least one sui juris beneficiary under (2)(B) or (C) of this section; and
25 (4) a sui juris beneficiary does not object to the conversion to a unitrust
26 in a writing delivered to the trustee within 60 days after the mailing of the notice under
27 (2) of this section.
28 * Sec. 19. AS 13.38.310(a) is amended to read:
29 (a) A trustee may petition the court to approve the conversion to a unitrust if
30 (1) a beneficiary timely objects to the conversion to a unitrust; [OR]
31 (2) there is not a sui juris beneficiary who is currently eligible under
01 AS 13.38.300(2)(A) or who would be eligible under AS 13.38.300(2)(B) or (C); or
02 (3) the trustee is a beneficiary [AS 13.38.300(2)(A), AND THERE
03 IS NOT A SUI JURIS BENEFICIARY WHO IS ELIGIBLE UNDER
04 AS 13.38.300(2)(B) OR (C)].
05 * Sec. 20. AS 13.38.330(b) is amended to read:
06 (b) After a trust has been converted to a unitrust, "income" in the governing
07 instrument means an annual distribution equal to the amount produced by the
08 application of a fixed unitrust percentage established under (d) of this section to
09 [FOUR PERCENT OF] the net fair market value, as determined annually, of the trust's
10 assets, whether the assets would be considered income or principal under other
11 provisions of this chapter, averaged over the lesser of
12 (1) the preceding years in the smoothing period selected by the
13 trustee; or
14 (2) the period during which the trust has been in existence.
15 * Sec. 21. AS 13.38.330 is amended by adding a new subsection to read:
16 (d) The unitrust percentage to be used in determining the amount to be
17 distributed from a unitrust to a beneficiary must be a reasonable current return from
18 the unitrust of at least three percent and not more than five percent, taking into account
19 the intentions of the trustor of the unitrust as expressed in the governing instrument,
20 the needs of the beneficiaries, general economic conditions, projected current earnings
21 for the unitrust, projected appreciation for the unitrust, and the effect of projected
22 inflation on the unitrust.
23 * Sec. 22. AS 13.38.340 is amended to read:
24 Sec. 13.38.340. Trustee's discretionary powers regarding unitrust. The
25 trustee may, in the trustee's discretion, from time to time, determine
26 (1) the effective date of a conversion to a unitrust;
27 (2) the provisions for prorating a unitrust distribution for a short year
28 in which a beneficiary's right to payments commences or ceases;
29 (3) the frequency of unitrust distributions during the year;
30 (4) the effect of other payments from or contributions to the trust on
31 the trust's valuation;
01 (5) whether to value the trust's assets annually or more frequently;
02 (6) whether to use a smoothing period of three, four, or five years;
03 (7) what valuation dates to use;
04 (8) [(7)] how frequently to value nonliquid assets and whether to
05 estimate their value;
06 (9) [(8)] whether to omit trust property occupied or possessed by a
07 beneficiary from the calculations; and
08 (10) [(9)] other matters necessary for the proper functioning of the
10 * Sec. 23. AS 13.38.350(b) is amended to read:
11 (b) Unless otherwise provided by the governing instrument, a unitrust
12 distribution shall be considered to have been paid from net income as net income
13 would be determined if the trust were not a unitrust. To the extent net income is
14 insufficient, the unitrust distribution shall be considered to have been paid from
15 ordinary income that is allocable under federal income tax rules to net income as
16 determined for a unitrust. To the extent that the ordinary income is insufficient,
17 the unitrust distribution is considered to have been paid from net realized short-
18 term capital gains. To the extent net income, ordinary income, and net realized short-
19 term capital gains are insufficient, the unitrust distribution shall be considered to have
20 been paid from net realized long-term capital gains. To the extent net income,
21 ordinary income, and net realized short-term and long-term capital gains are
22 insufficient, the unitrust distribution shall be paid from the principal of the trust.
23 * Sec. 24. AS 13.38.360 is amended to read:
24 Sec. 13.38.360. Court orders regarding unitrust. The trustee or, if the trustee
25 declines to petition the court, a beneficiary may petition the court to
26 [(1) SELECT A PAYOUT PERCENTAGE DIFFERENT THAN
27 FOUR PERCENT;
28 (2)] provide for a distribution of net income, as would be determined if
29 the unitrust [TRUST] were not a unitrust, in excess of the unitrust distribution if the
30 distribution is necessary to preserve a tax benefit [;
31 (3) AVERAGE THE VALUATION OF THE TRUST'S NET ASSETS
01 OVER A PERIOD OTHER THAN THREE YEARS].
02 * Sec. 25. AS 13.38.390(b) is amended to read:
03 (b) If AS 13.38.380(a)(3), (4), or (6) applies to all the trustees, the trustees
04 may petition the court to direct a conversion. In the alternative, the trustees may
05 appoint an independent person who shall be granted the authority, while acting
06 in a fiduciary capacity, to make decisions in place of the trustees relating to a
07 conversion, reconversion, and the exercise of discretionary powers under
08 AS 13.38.340.
09 * Sec. 26. AS 13.38.400 is amended to read:
10 Sec. 13.38.400. Reconversion from a unitrust. A trustee may reconvert a
11 trust that has been converted into a unitrust under AS 13.38.300 by following the same
12 procedures provided in AS 13.38.300 - 13.38.435 [AS 13.38.300 - 13.38.410] for
13 converting a trust into a unitrust. If a unitrust is reconverted under this section, the
14 trustee's power to adjust under AS 13.38.210 applies to the trustee after the
16 * Sec. 27. AS 13.38 is amended by adding new sections to article 2 to read:
17 Sec. 13.38.420. Express total return unitrusts. (a) This section applies to a
18 trust that, by its governing instrument, requires the distribution, at least annually, of a
19 unitrust amount.
20 (b) The trustee of an express total return unitrust may determine the unitrust
21 amount by reference to the net fair market value of the unitrust's assets in one or more
23 (c) Distribution of a unitrust amount is considered a distribution of all of the
24 income of an express total return unitrust and is considered to be an income interest.
25 (d) Distribution of a unitrust amount is considered to be a reasonable
26 apportionment of the total return of an express total return unitrust.
27 (e) An express total return unitrust that provides for a distribution based on a
28 unitrust percentage in excess of five percent of the net fair market value of the unitrust
29 assets a year is considered a distribution of all of the income of the unitrust and a
30 distribution of principal of the unitrust to the extent that the distribution exceeds five
31 percent a year.
01 (f) The governing instrument of an express total return unitrust may grant
02 discretion to the trustee to adopt a consistent practice of treating capital gains as part
03 of the unitrust amount to the extent that the unitrust amount exceeds the income
04 determined as if the trust were not an express total return unitrust, or the governing
05 instrument may specify the ordering of classes of income.
06 (g) Unless the terms of the express total return unitrust specifically provide
07 otherwise, a unitrust amount is considered a distribution made from the following
08 sources, which are listed in order of priority:
09 (1) net income determined as if the trust were not a unitrust;
10 (2) ordinary income not allocable to net income;
11 (3) net realized short-term capital gains;
12 (4) net realized long-term capital gains; and
13 (5) the principal of the trust estate.
14 (h) The governing instrument of an express total return unitrust may provide
15 that the trustee may exclude assets used by the unitrust's beneficiary, including a
16 residence property or tangible personal property, from the net fair market value of the
17 unitrust's assets for the purposes of computing the unitrust amount. These assets may
18 be considered equivalent to income or to the unitrust amount.
19 (i) In this section,
20 (1) "express total return unitrust" means a trust that, by its governing
21 instrument, requires the distribution, at least annually, of a unitrust amount;
22 (2) "unitrust amount" means an amount equal to a fixed percentage of
23 not less than three nor more than five percent each year of the net fair market value of
24 the annual value of the trust's assets distributed from an express total return unitrust to
25 a beneficiary.
26 Sec. 13.38.430. Power to treat gains as part of distribution of principal.
27 Unless prohibited by the unitrust's governing instrument or specifically addressed by
28 AS 13.38.350 or 13.38.420, the trustee of a unitrust may treat gains from the sale of
29 capital assets of the unitrust as part of a distribution of principal to a beneficiary, and,
30 if the trustee treats those gains as part of a distribution of principal to a beneficiary, the
31 trustee shall treat those gains consistently on the unitrust's books, records, and tax
01 returns as part of a distribution to a beneficiary.
02 Sec. 13.38.435. Definitions. In AS 13.38.300 - 13.38.435,
03 (1) "smoothing period" means the period of years over which the fair
04 market value of the assets of a unitrust are averaged;
05 (2) "unitrust percentage" means the unitrust percentage established
06 under AS 13.38.330(d).
07 * Sec. 28. AS 13.38.690(a) is repealed and reenacted to read:
08 (a) A trustee shall allocate
09 (1) to income that portion of a payment that equals the greater of the
11 (A) the portion that the payor characterizes as interest, a
12 dividend, a remittance in place of interest, or a remittance in place of a
13 dividend; or
14 (B) the portion that is characterized as imputed interest for
15 federal income tax purposes;
16 (2) to principal that portion of a payment that remains after the
17 allocation is made under (1) of this subsection.
18 * Sec. 29. AS 13.38.690(b) is amended to read:
19 (b) If no [A] part of a payment under a contract calling for equal installments
20 over a fixed period of time is [NOT] allocable to income under the provisions of (a) of
21 this section, the difference between the trust's acquisition value of the contract and the
22 total expected return is [SHALL BE] considered to be interest. The trustee shall
23 allocate to income the portion of each payment equivalent to interest on the then
24 unpaid principal balance at the rate specified in the contract or at a rate necessary to
25 amortize the difference between the expected return and the acquisition value, where
26 that rate is readily ascertainable by the trustee.
27 * Sec. 30. AS 13.38.690(c) is amended to read:
28 (c) If no [THERE IS NOT A] portion of a payment from a separate fund held
29 exclusively for the benefit of the trust [THAT] is allocable to income under (a) or (b)
30 of this section, but the internal net income of the fund determined as if the fund were a
31 separate trust subject to AS 13.38.200 - 13.38.410, 13.38.500 - 13.38.690, or
01 13.38.710 - 13.38.860 [AS 13.38.500 - 13.38.860] is readily ascertainable by the
02 trustee, the internal net income of the fund is considered to be the income earned
03 by the fund, and the portion of the payment equal to the then undistributed net
04 income of the fund realized since the trust acquired its interest in the fund is
05 considered to be a distribution of that internal net income of the fund and shall be
06 allocated to the trust income account. The balance of the payment described in this
07 subsection shall be allocated to principal. The power to adjust under AS 13.38.210,
08 the power to convert to a unitrust under AS 13.38.300, and the provisions of
09 AS 13.38.420 apply to retirement benefits covered by this subsection that are
10 payable to a trust. Those powers and provisions may be exercised by the payee
11 trustee or in the governing instrument for the retirement benefits separately and
12 independently from the exercise by the payee trustee or in the governing
13 instrument of those powers and provisions for the trust, as if the retirement
14 benefits and the trust were separate trusts subject to this chapter.
15 * Sec. 31. AS 13.38.690(d) is amended to read:
16 (d) A trustee shall allocate 10 percent of the part of the payment that is
17 required to be made during the accounting period to income and the balance to
18 principal if there is no [NOT A] part of the payment that is allocable to income under
19 (a) - (c) of this section and all or part of the payment is required to be made. The
20 trustee shall allocate the entire payment to principal if no [A] part of a payment is
21 [NOT] required to be made or the payment received is the entire amount to which the
22 trustee is entitled. In this subsection, a payment is not "required to be made" to the
23 extent that it is made because the trustee exercises a right of withdrawal.
24 * Sec. 32. AS 13.38.690(e) is amended to read:
25 (e) If, to obtain a federal estate or gift tax marital deduction for a trust, the
26 trustee must allocate more of a payment to income than provided for by this section,
27 the trustee shall allocate to income the additional amount necessary to obtain the
28 marital deduction [TO INCOME].
29 * Sec. 33. AS 13.46.190 is amended to read:
30 Sec. 13.46.190. Termination of custodianship. The custodian shall transfer in
31 an appropriate manner the custodial property to the minor or to the minor's estate upon
01 the earlier of the
02 (1) minor's attainment of 21 years of age with respect to property
03 transferred under AS 13.46.030 or 13.46.040 unless the time of transfer of the
04 custodial property to the minor is changed under AS 13.46.195 or 13.46.197;
05 (2) minor's attainment of 18 years of age with respect to property
06 transferred under AS 13.46.050 or 13.46.060, unless the time of transfer of the
07 custodial property to the minor is changed under AS 13.46.197;
08 (3) time specified in the transfer under AS 13.46.080 if the time of
09 transfer of the custodial property to the minor is changed under AS 13.46.195 or
10 13.46.197; or
11 (4) minor's death.
12 * Sec. 34. AS 13.46 is amended by adding a new section to read:
13 Sec. 13.46.197. Extension of custodial term by custodian. (a) A custodian
14 may extend the custodial term under this section to an age older than the age that is
15 specified by this chapter or a transferring document made under AS 13.46.080, subject
16 to the right of the minor to compel immediate distribution under (c) of this section.
17 (b) To extend the custodial term under (a) of this section, the custodian shall
18 give the minor written notice of the custodian's intent to extend the custodial term. The
19 notice must specify the duration of the extension by indicating the new custodial term
20 and must inform the minor of the minor's right to compel immediate distribution under
21 (c) of this section. The custodian shall give the notice during the later of the following
23 (1) the six-month period that precedes the last day of the custodial
24 term; or
25 (2) the six-month period that begins on the minor's 18th birthday.
26 (c) Rather than permit the extension of the custodial term, the minor may
27 compel immediate distribution of all or part of the custodial property by giving written
28 notice to the custodian
29 (1) during the six-month period that begins on the day that is the last
30 day of the current custodial term; or
31 (2) within 90 days after receiving the custodian's notice under (b) of
01 this section.
02 (d) If a minor does not exercise the minor's right to compel distribution under
03 (c) of this section, the custodial term shall be extended as indicated in the custodian's
04 notice given under (b) of this section, and the minor may not compel the immediate
05 distribution of custodial property before the end of the custodial term, as extended.
06 (e) A custodian may extend the custodial term more than once under this
08 (f) In this section, "custodial term" means the time provided in or allowed by
09 this chapter during which the custodian is directed to hold custodial property until the
10 property is transferred to the minor.
11 * Sec. 35. AS 13.46.990(11) is amended to read:
12 (11) "minor" means an individual who has not attained the age of 18
13 years, except that, when used in reference to the beneficiary for whose benefit
14 custodial property is held or to be held, "minor" means an individual who has not
15 attained the age at which the custodian is required under AS 13.46.190, [AND]
16 13.46.195, and 13.46.197 to transfer the custodial property to the beneficiary;
17 * Sec. 36. AS 13 is amended by adding a new chapter to read:
18 Chapter 75. Disposition of Human Remains.
19 Sec. 13.75.010. Directions by decedent. (a) A person may provide directions
20 for the disposition of the person's remains by placing the directions in a disposition
21 document. The directions may include or be limited to designating an agent to control
22 the disposition of the person's remains.
23 (b) A disposition document must be signed by the person and acknowledged
24 before a notary public, and contain the form and contents required by AS 13.75.030. A
25 disposition document may be a separate document or it may be contained in another
26 document, including a will or prepaid funeral or burial contract. The disposition
27 document may be modified or revoked only by a subsequent disposition document that
28 complies with this subsection.
29 Sec. 13.75.020. Persons authorized to control disposition. (a) The following
30 persons, in the priority listed, may control disposition of a decedent's remains:
31 (1) a person designated in a disposition document as the disposition
01 agent for the decedent;
02 (2) a person serving, or nominated by the decedent in the decedent's
03 will to serve, as the personal representative of the decedent's estate, if the person is
04 acting according to the decedent's written instructions contained in the decedent's will;
05 (3) the individual who was the spouse of the decedent at the time of the
06 decedent's death;
07 (4) the sole surviving competent adult child of the decedent, or, if there
08 is more than one surviving competent adult child of the decedent, the majority of the
09 surviving competent adult children; fewer than one-half of the surviving competent
10 adult children may exercise the rights and duties of this section if these surviving adult
11 children use reasonable efforts to notify all other surviving competent adult children
12 that they are exercising these rights and duties and are not aware of any opposition by
13 one-half or more of all of the surviving competent adult children;
14 (5) the surviving competent parents of the decedent; if one of the
15 surviving competent parents is absent, the remaining competent parent may exercise
16 the rights and duties of this section after reasonable efforts have been unsuccessful in
17 locating the absent surviving competent parent; in this paragraph, "absent" means a
18 person who is unable to communicate decisions or participate in making decisions
19 regarding the disposition of a decedent's remains personally, telephonically, or through
20 electronic communication;
21 (6) the surviving competent adult person in the next degrees of
22 kindred, the two surviving competent adult persons of the same degree of kindred if
23 there are two, or, if there are more than two surviving competent adult persons of the
24 same degree of kindred, the majority of those persons; fewer than the majority of
25 surviving competent adult persons of the same degree of kindred may exercise the
26 rights and duties of this section if those persons use reasonable efforts to notify all
27 other surviving competent adult persons of the same degree of kindred that they are
28 exercising these rights and duties and are not aware of any opposition by one-half or
29 more of all surviving competent adult persons of the same degree of kindred;
30 (7) in the case of an indigent or another individual whose final
31 disposition is the responsibility of the state or a municipality, a public administrator,
01 medical examiner, coroner, or another public official charged with arranging the final
02 disposition of the decedent; or
03 (8) another person who is willing to assume legal and financial
05 (b) If a person takes control of the disposition under (a) of this section, the
06 person is liable for the reasonable costs of the disposition if the assets of the estate or
07 other available assets are not adequate to pay the costs of the disposition.
08 (c) In this section,
09 (1) "adult" means a person who is 18 years of age or older;
10 (2) "competent" means a person who does not suffer from disabilities
11 that prevent the person from managing the person's property or affairs.
12 Sec. 13.75.030. Form of disposition document. A disposition document must
13 be in substantially the following form:
14 DISPOSITION DOCUMENT
15 You can select Part 1, Part 2, or both, by completing the part(s)
16 you select, including providing any signatures indicated. Part 3 contains
17 general statements and a place for your signature. You must sign in
18 front of a notary.
19 PART 1. APPOINTMENT OF AGENT TO CONTROL
20 DISPOSITION OF REMAINS. If you appoint an agent, you and your
21 agent must complete this part as indicated, and the agent must sign this
23 I, ______________, being of sound mind, wilfully and
24 voluntarily make known my desire that, on my death, the disposition of
25 my remains shall be controlled by _____________ (name of agent first
26 named below), and, with respect to that subject only, I appoint that
27 person as my agent. All decisions made by my agent with respect to the
28 disposition of my remains, including cremation, are binding.
29 ACCEPTANCE BY AGENT OF APPOINTMENT.
30 THE AGENT, AND EACH SUCCESSOR AGENT, BY
31 ACCEPTING THIS APPOINTMENT, AGREES TO AND ASSUMES
01 THE OBLIGATIONS PROVIDED IN THIS DOCUMENT. AN
02 AGENT MAY SIGN AT ANY TIME, BUT AN AGENT'S
03 AUTHORITY TO ACT IS NOT EFFECTIVE UNTIL THE AGENT
04 SIGNS BELOW TO INDICATE THE ACCEPTANCE OF
05 APPOINTMENT. ANY NUMBER OF AGENTS MAY SIGN, BUT
06 ONLY THE SIGNATURE OF THE AGENT ACTING AT ANY
07 TIME IS REQUIRED.
09 Name: ___________________________________________________
10 Address: _________________________________________________
11 Telephone Number: _________________________________________
12 Signature Indicating Acceptance of Appointment:
14 Date of Signature: __________________________________________
16 If my agent dies, becomes legally disabled, resigns, or refuses to
17 act, I appoint the following persons (each to act alone and successively,
18 in the order named) to serve as my agent to control the disposition of
19 my remains as authorized by this document:
20 (1) First Successor
21 Name: ___________________________________________________
22 Address: _________________________________________________
23 Telephone Number: _________________________________________
24 Signature of First Successor Indicating Acceptance of Appointment:
26 Date of Signature: __________________________________________
27 (2) Second Successor
28 Name: ___________________________________________________
29 Address: _________________________________________________
30 Telephone Number: _________________________________________
31 Signature of Second Successor Indicating Acceptance of Appointment:
02 Date of Signature: __________________________________________
03 PART 2. DIRECTIONS FOR THE DISPOSITION OF MY
05 Stated below are my directions for the disposition of my remains:
10 If the disposition of my remains is by cremation, then (pick one):
11 ( ) I do not wish to allow any of my survivors the option of
12 canceling my cremation and selecting alternative arrangements,
13 regardless of whether my survivors consider a change to be appropriate.
14 ( ) I wish to allow only the survivors I have designated below to
15 have the option of canceling my cremation and selecting alternative
16 arrangements, if they consider a change to be appropriate:
21 PART 3. GENERAL PROVISIONS AND SIGNATURE.
22 WHEN DIRECTIONS BECOME EFFECTIVE. The directions,
23 including any appointment of an agent, in this disposition document
24 become effective on my death.
25 REVOCATION OF PRIOR APPOINTMENTS. I revoke any
26 prior appointment of any person to control the disposition of my
28 SIGNATURE OF PERSON MAKING DISPOSITION DOCUMENT
29 Signature: ________________________________________________
30 Date of signature: __________________________________________
31 (Notary acknowledgment of signature)
01 Sec. 13.75.040. Agent's appointment. The person appointed as an agent in a
02 disposition document may sign the disposition document at any time, but the agent's
03 authority to act is not effective until the agent signs the instrument.
04 Sec. 13.75.050. Exercise of authority. If a person fails to exercise the person's
05 authority to control disposition under AS 13.75.020 within 48 hours after receiving
06 notification of the decedent's death or within 48 hours after the decedent's death,
07 whichever is earlier, the person may not control the disposition of the decedent's
08 remains, and the right to control the disposition of the decedent's remains passes to the
09 person who is next listed in priority under AS 13.75.020. If the person to whom the
10 right to control the disposition passes under this section fails to exercise the person's
11 authority to control the disposition within 48 hours after being notified that the
12 authority to control the disposition has passed to the person, the authority to control
13 the disposition passes to the person who is next listed in priority under AS 13.75.020.
14 Sec. 13.75.060. Certain persons prohibited from control. If a person is
15 charged with a felonious killing in connection with a decedent's death and if the
16 funeral director or the cemetery knows about the charge, then the person may not
17 control disposition, and the right to control disposition passes to the person who is
18 next listed in priority under AS 13.75.020.
19 Sec. 13.75.070. Prohibition of cremation; written instructions. A person
20 may not authorize cremation for a decedent's remains if a decedent has left directions
21 in a disposition document that the decedent does not wish to be cremated.
22 Sec. 13.75.080. Implementation of directions. (a) The person authorized to
23 control the disposition shall carry out the directions of the decedent to the extent that
24 the decedent's estate or the person is financially able to carry out the directions.
25 (b) Notwithstanding any other provision in AS 13.06 - AS 13.36 (Uniform
26 Probate Code), if a person provides directions in a disposition document that is
27 contained in a will, the directions shall be carried out immediately without the
28 necessity of probate. If the will is not probated or is declared invalid for testamentary
29 purposes, the directions are valid to the extent to which they have been acted on in
30 good faith.
31 Sec. 13.75.090. Misrepresentation; liability. If a person represents that the
01 person knows the identity of a decedent and, with the intent to procure the disposition
02 of the decedent's remains, signs a statement, other than a death certificate, that
03 identifies the decedent, the person guarantees the identity of the decedent and is liable
04 for any damages that result, directly or indirectly, from that guarantee.
05 Sec. 13.75.100. Liability. (a) A disposition organization is not liable for
06 carrying out the directions of a decedent if the disposition organization carries out the
07 directions of a decedent or a person who establishes that the person is entitled to
08 control the disposition.
09 (b) This section may not be construed to reduce or eliminate the liability of a
10 disposition organization for its negligence or reckless acts.
11 Sec. 13.75.110. Disputes. (a) A person listed in AS 13.75.020 who is involved
12 in a dispute with one or more persons listed in AS 13.75.020 about which of the
13 persons has the authority to control disposition may bring an action in the superior
14 court to resolve the dispute.
15 (b) If there is a dispute with one or more persons listed in AS 13.75.020 about
16 which person has the authority to control disposition, a cemetery organization or
17 funeral establishment is not liable for refusing to accept, to inter, or otherwise to
18 dispose of the decedent's remains until the cemetery organization or funeral
19 establishment receives a court order or another suitable confirmation that the dispute
20 has been resolved.
21 Sec. 13.75.120. Exemptions. The disposition of the remains of a member of
22 the organized militia under AS 26.05.262, the disposition of the remains of a member
23 of the armed forces under AS 26.10.065(a), and the disposition of the remains of a
24 member of the United States Coast Guard under AS 26.10.065(b) are exempt from this
26 Sec. 13.75.190. Definitions. In this chapter,
27 (1) "control" means the authority to control disposition;
28 (2) "directions" means
29 (A) instructions for the disposition of a person's remains;
30 (B) the appointment of an agent to handle the disposition of a
31 person's remains; or
01 (C) both (A) and (B) of this paragraph;
02 (3) "disposition" means disposition of a decedent's remains, including
03 cremation, but does not include an anatomical gift; in this paragraph, "anatomical gift"
04 has the meaning given in AS 13.52.390;
05 (4) "disposition document" means a disposition document authorized
06 by AS 13.75.010
07 (A) in which a person provides directions regarding the
08 disposition of the person's remains; and
09 (B) that complies with AS 13.75.030;
10 (5) "disposition organization" means
11 (A) a cemetery association formed under AS 10.30.010;
12 (B) a nonprofit cemetery corporation authorized by
13 AS 10.30.055;
14 (C) a person operating a crematory;
15 (D) a person operating a columbarium;
16 (E) a funeral home or other type of funeral establishment;
17 (F) a funeral director or an embalmer.
18 Sec. 13.75.195. Short title. This chapter may be cited as the Disposition of
19 Human Remains Act.
20 * Sec. 37. AS 21.42.020 is amended by adding new subsections to read:
21 (e) Notwithstanding (a) of this section, a trustee, acting in a fiduciary capacity,
22 may procure or cause to be procured an insurance contract that is on the life or body of
23 an individual and under which the proceeds of the insurance contract are payable to
24 the trustee, acting in a fiduciary capacity, if
25 (1) the trustee, acting in a fiduciary capacity, owns the insurance
26 contract or the trust itself owns the insurance contract;
27 (2) on the date the contract is made, a settlor of the trust is the
28 individual insured, has an insurable interest in the individual insured, or would have
29 had an insurable interest in the individual insured if the settlor were living at the time
30 the contract was made; in this paragraph, "settlor" means a person, including a person
31 for whom a fiduciary or agent is acting, who executes the trust instrument; and
01 (3) the proceeds of the contract are primarily for the benefit of a trust
02 beneficiary who has an insurable interest in the individual insured, except that, if the
03 determination of the trust beneficiary's insurable interest is based on (d)(1) of this
04 section, the trust beneficiary's relation by blood or law must be within the third degree.
05 (f) A person who has an insurable interest in the life or body of an individual
06 may form a business firm that is substantially or solely for the purpose of purchasing,
07 holding, or administering an insurance contract on the life or body of the individual. In
08 this subsection, "firm" has the meaning given in AS 21.97.900, but also includes a
09 business trust and a joint venture.
10 * Sec. 38. AS 32.11.340(b) is amended to read:
11 (b) This section provides the exclusive remedy that a judgment creditor of a
12 general or limited partner or of the general or limited partner's assignee may use to
13 satisfy a judgment out of the judgment debtor's interest in the partnership. Other legal
14 or equitable remedies, including foreclosure on the general or limited partner's
15 partnership interest and a court order for directions, accounts, and inquiries that the
16 debtor general or limited partner might have made, are not available to the judgment
17 creditor attempting to satisfy the judgment out of the judgment debtor's interest in the
18 limited partnership and may not be ordered by a court.
19 * Sec. 39. AS 34.40.110(b) is amended to read:
20 (b) If a trust contains a transfer restriction allowed under (a) of this section,
21 the transfer restriction prevents a creditor existing when the trust is created or a person
22 who subsequently becomes a creditor from satisfying a claim out of the beneficiary's
23 interest in the trust, unless the creditor is a creditor of the settlor and
24 (1) the creditor establishes by clear and convincing evidence that the
25 settlor's transfer of property in trust was made with the intent to defraud that creditor,
26 and a cause of action or claim for relief with respect to the fraudulent transfer
27 complies with the requirements of (d) of this section; however, a settlor's expressed
28 intention to protect trust assets from a beneficiary's potential future creditors is not
29 evidence of an intent to defraud;
30 (2) the trust, except for an eligible individual retirement account trust,
31 provides that the settlor may revoke or terminate all or part of the trust without the
01 consent of a person who has a substantial beneficial interest in the trust and the interest
02 would be adversely affected by the exercise of the power held by the settlor to revoke
03 or terminate all or part of the trust; in this paragraph, "revoke or terminate" does not
04 include a power to veto a distribution from the trust, a testamentary or lifetime
05 nongeneral power of appointment or similar power, or a right to receive a distribution
06 of income or principal under (3)(A), (B), (C), or (D) of this subsection;
07 (3) the trust, except for an eligible individual retirement account trust,
08 requires that all or a part of the trust's income or principal, or both, must be distributed
09 to the settlor; however, this paragraph does not apply to a settlor's right to receive the
10 following types of distributions, which remain subject to the restriction provided by
11 (a) of this section until the distributions occur:
12 (A) income or principal from a charitable remainder annuity
13 trust or charitable remainder unitrust; in this subparagraph, "charitable
14 remainder annuity trust" and "charitable remainder unitrust" have the meanings
15 given in 26 U.S.C. 664 (Internal Revenue Code) [AS THAT SECTION
16 READS ON OCTOBER 8, 2003,] and as it may be amended;
17 (B) a percentage of the value of the trust each year as
18 determined from time to time under the trust instrument, but not exceeding the
19 amount that may be defined as income under AS 13.38 or under 26 U.S.C.
20 643(b) (Internal Revenue Code) [AS THAT SUBSECTION READS ON
21 OCTOBER 8, 2003,] and as it may be amended;
22 (C) the transferor's potential or actual use of real property held
23 under a qualified personal residence trust within the meaning of 26 U.S.C.
24 2702(c) (Internal Revenue Code) [AS THAT SUBSECTION READS ON
25 SEPTEMBER 15, 2004,] or as it may be amended in the future; or
26 (D) income or principal from a grantor retained annuity trust or
27 grantor retained unitrust that is allowed under 26 U.S.C. 2702 (Internal
28 Revenue Code) [AS THAT SECTION READS ON SEPTEMBER 15, 2004,]
29 or as it may be amended in the future; or
30 (4) at the time of the transfer, the settlor is in default by 30 or more
31 days of making a payment due under a child support judgment or order.
01 * Sec. 40. AS 34.40 is amended by adding new sections to read:
02 Sec. 34.40.113. Discretionary interests in irrevocable trusts. (a) This section
03 applies to a creditor's claim with respect to a discretionary interest in an irrevocable
04 trust unless the trust instrument provides otherwise.
05 (b) A discretionary interest in an irrevocable trust is not a property interest or
06 an enforceable right. It is an expectancy that a creditor of a beneficiary may not attach
07 or otherwise reach.
08 (c) A creditor of a beneficiary may not force a distribution with regard to a
09 discretionary interest in an irrevocable trust. A creditor may not compel a trustee to
10 exercise the trustee's discretion to make a distribution with regard to a discretionary
11 interest in an irrevocable trust.
12 (d) Even if a beneficiary has an outstanding creditor, in the case of a
13 discretionary interest in an irrevocable trust, a trustee who has the authority to pay
14 income or principal to a beneficiary may pay it to a third party if the payment is for the
15 benefit of the beneficiary. A trustee is not liable to a creditor for paying income or
16 principal on behalf of the beneficiary.
17 (e) A creditor of a beneficiary may not maintain an action or a proceeding in
18 court that interferes with the trustee's discretion to apply income or principal on behalf
19 of the beneficiary.
20 (f) A creditor of a beneficiary may not obtain an order of attachment or similar
21 relief that would prevent a trustee from making a discretionary payment to a third
22 party on behalf of the beneficiary.
23 (g) This section does not prevent a creditor from obtaining relief from a
24 fraudulent transfer under AS 34.40.110.
25 (h) In this section, a beneficiary's entitlement to a distribution is within the
26 discretion of a trustee, whether or not the trust instrument states the purposes for the
27 distribution or uses "may," "shall," "sole and absolute," "uncontrolled," or similar
29 (i) In this section, "discretionary interest" means a beneficiary's interest in an
30 irrevocable trust if the beneficiary's entitlement to a distribution is within the
31 discretion of the trustee.
01 Sec. 34.40.118. Transfers of individual retirement accounts. (a)
02 Notwithstanding a provision in AS 09.38.017(d), AS 34.40.110, or another law to the
03 contrary, a person may voluntarily transfer or assign the person's interest in an
04 individual retirement account if the person
05 (1) is the owner of or a participant in the individual retirement account;
07 (2) acquired the interest as a result of the death of another individual.
08 (b) In this section, "individual retirement account" means an individual
09 retirement account established under 26 U.S.C. 408 or a Roth IRA established under
10 26 U.S.C. 408A.
11 * Sec. 41. AS 34.77.030(g) is amended to read:
12 (g) Whether or not the community property agreement provides that all
13 property acquired by either or both spouses during the marriage is community
14 property, and except to the extent otherwise expressly provided by the spouses in the
15 community property agreement or by the settlors in a community property trust,
16 property acquired by a spouse during marriage and after the determination date is
17 individual property if acquired
18 (1) by gift or a disposition at death made by a third person to the
19 spouse and not to both spouses;
20 (2) in exchange for or with the proceeds of other individual property of
21 the spouse;
22 (3) from appreciation or income of the spouse's individual property
23 except to the extent that the income or appreciation is classified as community
24 property under AS 34.77.130;
25 (4) by a decree, community property agreement, written consent, or
26 reclassification under AS 34.77.060(b) designating it as the individual property of the
28 (5) as a recovery for damage to property under AS 34.77.140, except
29 as specifically provided otherwise in a decree, community property agreement,
30 community property trust, or written consent; [OR]
31 (6) as a recovery for personal injury, except for the amount of the
01 recovery attributable to expenses paid or otherwise satisfied from community
02 property; or
03 (7) as a transfer to a community property trust and declared by
04 the trust to be the individual property of the spouse.
05 * Sec. 42. AS 34.77.050(b) is amended to read:
06 (b) A gift of community property to a third person that is not allowed under
07 (a) of this section is subject to AS 34.77.140(e) - (h) [(d) OF THIS SECTION] unless
08 both spouses act together in making the gift or the other spouse ratifies the gift.
09 * Sec. 43. AS 34.77.110 is amended by adding new subsections to read:
10 (f) Property that spouses agree in a community property agreement is
11 community property or property that is transferred to a community property trust and
12 expressly declared by the trust to be community property is owned as community
13 property regardless of the form of title to the property, even if the title indicates that
14 the property is owned unequally by the spouses or is only in the name of one spouse.
15 (g) If the title to community property is in a form that provides for ownership
16 by survivorship between the spouses, then ownership by survivorship is presumed to
17 have been made with the consent of both spouses.
18 (h) If a spouse with management and control of community property
19 designates a beneficiary for the property on the death of one or both of the spouses,
20 and if the community property is held in a form of title that permits a beneficiary
21 designation, the beneficiary designation is effective only for the designating spouse's
22 one-half interest in the community property unless the other spouse consents in
23 writing to the designation. A designation of the following as the beneficiary is
24 presumed to have been made with the consent of the other spouse:
25 (1) the other spouse or an ancestor or descendant of either spouse;
26 (2) a charity; or
27 (3) a trust, to the extent that the beneficiaries consist of persons or
28 entities identified in (1) or (2) of this subsection.
29 (i) The testimony of one spouse is sufficient to rebut a presumption
30 established under this section.
31 (j) A disposition of community property contrary to (e) - (h) of this section is
01 voidable. An action in court to void the disposition must be commenced within the
02 time specified by AS 34.77.140(e).
03 * Sec. 44. AS 34.77.140(d) is amended to read:
04 (d) Except as provided otherwise in (e) - (h) of this section
05 [AS 34.77.050(d)], a spouse must begin an action against the other spouse under (a) of
06 this section within three years after acquiring actual knowledge of the facts giving rise
07 to the claim.
08 * Sec. 45. AS 34.77.140 is amended by adding new subsections to read:
09 (e) Except as provided by (f) - (h) of this section, if a gift of community
10 property during marriage by a spouse does not comply with AS 34.77.050(a), the
11 nondonor spouse may bring an action to recover the property or the amount of money
12 by which the gift exceeded the limit under AS 34.77.050(a). The nondonor spouse
13 may bring the action against the donor spouse, the gift recipient, or both. The
14 nondonor spouse must commence the action within the earliest of the following times:
15 (1) one year after the nondonor spouse receives notice of the gift;
16 (2) one year after dissolution of the marriage; or
17 (3) on or before the deadline for filing a claim under AS 13.16.460
18 after the death of the donor spouse.
19 (f) If a recovery under (e) of this section occurs during the marriage of the
20 donor spouse and the nondonor spouse, the property or money that is recovered is
21 considered community property. If the recovery occurs after the dissolution of the
22 marriage of the donor and nondonor spouses or after the death of either the donor or
23 the nondonor spouse, the recovery is limited to 50 percent of the property or money
24 that would have been recovered if the recovery had occurred during the marriage.
25 (g) If a transfer of community property to a third person during marriage by a
26 spouse acting without the other spouse becomes a completed gift on the death of the
27 donor spouse, or if an arrangement involving community property during marriage by
28 a spouse acting without the other spouse is intended to be and becomes a gift to a third
29 person on the death of the donor spouse, the surviving spouse may bring an action in
30 court against the gift recipient to recover one-half of the gift. To bring an action under
31 this subsection, the surviving spouse must commence the action on or before the
01 deadline for filing a claim under AS 13.16.460.
02 (h) If a spouse who would have been entitled to bring an action under (e) - (g)
03 of this section predeceases the donor spouse, the deceased spouse's successor in
04 interest may bring an action for recovery under (e) - (g) of this section, but the action
05 must be commenced within one year after the deceased spouse's death. Recovery in an
06 action under this subsection is the same as if the donor spouse had predeceased the
07 spouse entitled to the recovery, but the amount of the recovery is calculated as of the
08 date of the death of the spouse entitled to the recovery.
09 * Sec. 46. AS 13.38.330(c); AS 34.77.050(d), and 34.77.110(d) are repealed.
10 * Sec. 47. The uncodified law of the State of Alaska is amended by adding a new section to
12 INDIRECT COURT RULE AMENDMENTS. (a) AS 34.40.113(f), enacted by sec. 40
13 of this Act, has the effect of amending Rule 64, Alaska Rules of Civil Procedure, by
14 prohibiting a creditor or beneficiary from obtaining an order of attachment or similar relief in
15 certain cases.
16 (b) AS 34.77.110(i), enacted by sec. 43 of this Act, has the effect of amending Rule
17 301(a), Alaska Rules of Evidence, by specifying the evidence that is sufficient to rebut a
18 presumption under AS 34.77.110(i), enacted by sec. 43 of this Act.
19 * Sec. 48. The uncodified law of the State of Alaska is amended by adding a new section to
21 APPLICABILITY. (a) AS 09.38.017(a), as amended by sec. 1 of this Act,
22 AS 09.38.017(d), as amended by sec. 2 of this Act, and AS 09.38.017(e), as amended by sec.
23 3 of this Act, apply to a retirement plan that exists before, on, or after the effective date of this
24 Act. In this subsection, "retirement plan" has the meaning given in AS 09.38.017(e), as
25 amended by sec. 3 of this Act.
26 (b) AS 13.36.072(c), enacted by sec. 8 of this Act, AS 13.36.157, as repealed and
27 reenacted by sec. 9 of this Act, AS 13.36.158 and 13.36.159, enacted by sec. 10 of this Act,
28 AS 13.36.215(b), enacted by sec. 11 of this Act, AS 13.36.225(a), as amended by sec. 12 of
29 this Act, AS 13.36.273, enacted by sec. 13 of this Act, AS 13.36.370(a), as amended by sec.
30 14 of this Act, and AS 13.36.375(c), enacted by sec. 15 of this Act, apply to a trust that exists
31 before, on, or after the effective date of this Act.
01 (c) AS 13.46.190, as amended by sec. 33 of this Act, AS 13.46.197, enacted by sec.
02 34 of this Act, and AS 13.46.990(11), as amended by sec. 35 of this Act, apply to a transfer
03 that is made before, on, or after the effective date of this Act. In this subsection, "transfer" has
04 the meaning given in AS 13.46.990.
05 (d) AS 34.40.118, enacted by sec. 40 of this Act, applies to an individual retirement
06 account that exists before, on, or after the effective date of this Act. In this subsection,
07 "individual retirement account" means an individual retirement account established under 26
08 U.S.C. 408 or a Roth IRA established under 26 U.S.C. 408A.
09 * Sec. 49. The uncodified law of the State of Alaska is amended by adding a new section to
11 CONDITIONAL EFFECT. (a) AS 34.40.113(f), enacted by sec. 40 of this Act, takes
12 effect only if sec. 47(a) of this Act receives the two-thirds majority vote of each house
13 required by art. IV, sec. 15, Constitution of the State of Alaska.
14 (b) AS 34.77.110(i), enacted by sec. 43 of this Act, takes effect only if sec. 47(b) of
15 this Act receives the two-thirds majority vote of each house required by art. IV, sec. 15,
16 Constitution of the State of Alaska.
New Text Underlined [DELETED TEXT BRACKETED]