Alaska Asset Protection Trust Statutes

Alaska Trust Act (Non Self-Settled)

TRUST REGISTRATION

Sec. 13.36.005. Duty to register trusts.

(a) The trustee of a trust having its principal place of administration in this state shall register the trust in the court of this state at the principal place of administration. Unless otherwise designated in the trust instrument, the principal place of administration of a trust is the trustee's usual place of business where the records pertaining to the trust are kept, or at the trustee's residence if the trustee has no such place of business. In the case of co-trustees, the principal place of administration, if not otherwise designated in the trust instrument, is

(1) the usual place of business of the corporate trustee if there is but one corporate co-trustee; or

(2) the usual place of business or residence of the individual trustee who is a professional fiduciary if there is but one such person and no corporate co-trustee; and otherwise

(3) the usual place of business or residence of any of the co-trustees as agreed upon by them.

(b) The duty to register under AS 13.36.005 - 13.36.025 does not apply to the trustee of a trust if registration would be inconsistent with the retained jurisdiction of a foreign court from which the trustee cannot obtain release.

Sec. 13.36.010. Registration procedures.

Registration shall be accomplished by filing a statement indicating the name and address of the trustee in which it acknowledges the trusteeship. The statement shall indicate whether the trust has been registered elsewhere. The statement shall identify the trust: (1) in the case of a testamentary trust, by the name of the testator and the date and place of domiciliary probate; (2) in the case of a written inter vivos trust, by the name of each settlor and the original trustee and the date of the trust instrument; or (3) in the case of an oral trust, by information identifying the settlor or other source of funds and describing the time and manner of the trust's creation and the terms of the trust, including the subject matter, beneficiaries and time of performance. If a trust has been registered elsewhere, registration in this state is ineffective until either the earlier registration is released by order of the court where prior registration occurred or an instrument executed by the trustee and all beneficiaries is filed with the registration in this state.

Sec. 13.36.015. Effect of registration.

(a) By registering a trust, or accepting the trusteeship of a registered trust, the trustee submits personally to the jurisdiction of the court in any proceeding under AS 13.36.035 relating to the trust that may be initiated by any interested person while the trust remains registered. Notice of any proceeding shall be delivered to the trustee, or mailed by ordinary first-class mail to the trustee's address as listed in the registration or as thereafter reported to the court and to the trustee's address as then known to the petitioner.

(b) To the extent of their interests in the trust, all beneficiaries of a trust properly registered in this state are subject to the jurisdiction of the court of registration for the purposes of proceedings under AS 13.36.035 , if notice is given under AS 13.06.110 .

Sec. 13.36.020. Effect of failure to register.

A trustee who fails to register a trust in a proper place as required by AS 13.36.005 - 13.36.025, for purposes of any proceedings initiated by a beneficiary of the trust before registration is subject to the personal jurisdiction of any court in which the trust could have been registered. In addition, any trustee who, within 30 days after receipt of a written demand by a settlor or beneficiary of the trust, fails to register a trust as required by AS 13.36.005 - 13.36.025 is subject to removal and denial of compensation or to surcharge as the court may direct. A provision in the terms of the trust purporting to excuse the trustee from the duty to register, or directing that the trust or trustee is not subject to the jurisdiction of the court, is ineffective.

Sec. 13.36.025. Registration, qualification of foreign trustee.

(a) A foreign corporate trustee is required to qualify as a foreign corporation doing business in this state if it maintains the principal place of administration of any trust within the state. A foreign co-trustee is not required to qualify in this state solely because its co-trustee maintains the principal place of administration in this state. Unless otherwise doing business in this state, local qualification by a foreign trustee, corporate or individual, is not required in order for the trustee to receive distribution from a local estate or to hold, invest in, manage or acquire property located in this state, or maintain litigation. Nothing in this section affects a determination of what other acts require qualification as doing business in this state.

(b) The provisions of (a) of this section are not intended to override any provision of AS 06.26, and AS 06.26 governs to the extent of any conflict.

Article 02. JURISDICTION OF COURT CONCERNING TRUSTS; CHOICE OF LAW

Sec. 13.36.035. Court jurisdiction; choice of law.

(a) The court has exclusive jurisdiction of proceedings initiated by interested parties concerning the internal affairs of trusts, including trusts covered by (c) of this section. Except as provided in (c) and (d) of this section, proceedings that may be maintained under this section are those concerning the administration and distribution of trusts, the declaration of rights, and the determination of other matters involving trustees and beneficiaries of trusts. These include proceedings to

(1) appoint or remove a trustee;

(2) review trustees' fees and to review and settle interim or final accounts;

(3) ascertain beneficiaries, determine any question arising in the administration or distribution of any trust including questions of construction of trust instruments, instruct trustees, and determine the existence or nonexistence of any immunity, power, privilege, duty, or right; and

(4) release registration of a trust.

(b) Neither registration of a trust nor a proceeding under this section results in continuing supervisory proceedings. The management and distribution of a trust estate, submission of accounts and reports to beneficiaries, payment of trustee's fees and other obligations of a trust, acceptance and change of trusteeship, and other aspects of the administration of a trust shall proceed expeditiously consistently with the terms of the trust, free of judicial intervention and without order, approval or other action of any court, subject to the jurisdiction of the court as invoked by interested parties or as otherwise exercised as provided by law.

(c) A provision that the laws of this state govern the validity, construction, and administration of the trust and that the trust is subject to the jurisdiction of this state is valid, effective, and conclusive for the trust if

(1) some or all of the trust assets are deposited in this state and are being administered by a qualified person; in this paragraph, "deposited in this state" includes being held in a checking account, time deposit, certificate of deposit, brokerage account, trust company fiduciary account, or other similar account or deposit that is located in this state;

(2) a trustee is a qualified person who is designated as a trustee under the governing instrument or by a court having jurisdiction over the trust;

(3) the powers of the trustee identified under (2) of this subsection include or are limited to

(A) maintaining records for the trust on an exclusive basis or a nonexclusive basis; and

(B) preparing or arranging for the preparation of, on an exclusive basis or a nonexclusive basis, an income tax return that must be filed by the trust; and

(4) part or all of the administration occurs in this state, including physically maintaining trust records in this state.

(d) The validity, construction, and administration of a trust with a state jurisdiction provision are determined by the laws of this state, including the

(1) capacity of the settlor;

(2) powers, obligations, liabilities, and rights of the trustees and the appointment and removal of the trustees; and

(3) existence and extent of powers, conferred or retained, including a trustee's discretionary powers, the powers retained by a beneficiary of the trust, and the validity of the exercise of a power.

(e) [Repealed, Sec. 22 ch 105 SLA 1998].

Sec. 13.36.040. Trust proceedings; venue.

Venue for proceedings under AS 13.36.035 involving registered trusts is in the place of registration. Venue for proceedings under AS 13.36.035 involving trusts not registered in this state is in any place where the trust properly could have been registered, and otherwise by the rules of civil procedure.

Sec. 13.36.043. Change of situs to Alaska.

(a) The situs of a foreign trust is moved to this state when the trust satisfies AS 13.36.035 (c) and a qualified person serving as trustee registers the trust under AS 13.36.010 .

(b) If the situs of a foreign trust is moved to this state as provided in this section, a provision in the trust that restricts the transfer of trust assets in a manner similar to AS 34.40.110 , that allows the trust to be perpetual, or that is not expressly prohibited by the law of this state is effective and enforceable under the laws of this state.

(c) A foreign trust that moves its situs to this state is valid whether or not the trust complied with the laws of this state at the time of its creation or after its creation.

(d) In this section, "foreign trust" means a trust that is created in another state or country and that is valid in that state or country.

Sec. 13.36.045. Trust proceedings; matters relating to foreign trusts.

(a) The court will not, over the objection of a party, entertain proceedings under AS 13.36.035 involving a trust registered or having its principal place of administration in another state, unless

(1) all appropriate parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration;

(2) the interests of justice otherwise would seriously be impaired; or

(3) the trust satisfies AS 13.36.035 (c).

(b) The court may condition a stay or dismissal of a proceeding under this section on any party's consent to jurisdiction of the state in which the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.

Sec. 13.36.050. Court; concurrent jurisdiction of litigation involving trusts and third parties.

The court of the place in which the trust is registered has concurrent jurisdiction with other courts of this state of actions and proceedings to determine the existence or nonexistence of trusts created other than by will, of actions by or against creditors or debtors of trusts, and of other actions and proceedings involving trustees and third parties. Venue is determined by the rules generally applicable to civil actions.

Sec. 13.36.055. Proceedings for review of employment of agents and review of compensation of trustee and employees of trust.

On petition of an interested person, after notice to all interested persons, the court may review the propriety of employment of any person by a trustee including any attorney, auditor, investment advisor or other specialized agent or assistant, and the reasonableness of the compensation of any person so employed, and the reasonableness of the compensation determined by the trustee for the trustee's services. Any person who has received excessive compensation from a trust may be ordered to make appropriate refunds.

Sec. 13.36.060. Trust proceedings; initiation by notice; necessary parties.

Proceedings under AS 13.36.035 are initiated by filing a petition in the court and giving notice under AS 13.06.110 to interested parties. The court may order notification of additional persons. A decree is valid as to all who are given notice of the proceeding though fewer than all interested parties are notified.

Article 03. DUTIES AND LIABILITIES OF TRUSTEES

Sec. 13.36.070. General duties not limited.

Except as specifically provided, the general duty of the trustee to administer a trust expeditiously for the benefit of the beneficiaries is not altered by AS 13.06 - AS 13.36.

Sec. 13.36.075. Trustee's standard of care and performance. [Repealed, Sec. 4 ch 43 SLA 1998].

Repealed or Renumbered

Sec. 13.36.080. Duty to inform and account to beneficiaries.

(a) The trustee shall keep the beneficiaries of the trust reasonably informed of the trust and its administration. In addition:

(1) within 30 days after acceptance of the trust, the trustee shall inform in writing the current beneficiaries and if possible, one or more persons who under AS 13.06.120 may represent beneficiaries with future interests, of the court in which the trust is registered and of the trustee's name and address;

(2) upon reasonable request, the trustee shall provide the beneficiary with a copy of the terms of the trust which describe or affect the beneficiary's interest and with relevant information about the assets of the trust and the particulars relating to the administration;

(3) upon reasonable request, a beneficiary is entitled to a statement of the accounts of the trust annually and on termination of the trust or change of the trustee.

(b) The settlor of a trust may exempt a trustee from the duties under (a) of this section to provide notification or information regarding the trust to a beneficiary who is not entitled to a mandatory distribution of income or principal from the trust on an annual or more frequent basis. The settlor may provide the exemption by provision in the instrument creating the trust if the trust is created by a writing, by an amendment of the trust if the settlor reserved the power to amend the trust, or by a written document after the trust is created. The exemption may not exceed in duration the shorter of the settlor's lifetime or a judicial determination of the settlor's incapacity.

(c) If a settlor provides for an exemption under (b) of this section and a beneficiary with a future interest

(1) who is not a beneficiary entitled to a mandatory distribution of income or principal from the trust on an annual or more frequent basis receives a distribution, the trustee shall provide notification or information limited to the accounting period during which the distribution was made;

(2) becomes a beneficiary entitled to a mandatory distribution of income or principal from the trust on an annual or more frequent basis, the trustee shall provide notification and information as required under AS 13.16 and (a) of this section.

Sec. 13.36.085. Duty to provide bond.

A trustee need not provide bond to secure performance of the trustee's duties unless required by the terms of the trust, reasonably requested by a beneficiary or found by the court to be necessary to protect the interests of the beneficiaries who are not able to protect themselves and whose interests otherwise are not adequately represented. On petition of the trustee or other interested person the court may excuse a requirement of bond, reduce the amount of the bond, release the surety, or permit the substitution of another bond with the same or different sureties. If bond is required, it shall be filed in the court of registration or other appropriate court in amounts and with sureties and liabilities as provided in AS 13.16.260 and 13.16.270 relating to bonds of personal representatives.

Alaska Trust Act (Spendthrift)

Chapter 34.40. FRAUDULENT TRANSFERS, REVOCATIONS, AND TRUSTS
Sec. 34.40.010. Invalidity generally.

Except as provided in AS 34.40.110 , a conveyance or assignment, in writing or otherwise, of an estate or interest in land, or in goods, or things in action, or of rents or profits issuing from them or a charge upon land, goods, or things in action, or upon the rents or profits from them, made with the intent to hinder, delay, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands, or a bond or other evidence of debt given, action commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed, or defrauded is void.

Sec. 34.40.020. Invalidity as against purchasers.

A conveyance of an interest in land, or the rents or profits of it, or a charge upon land or upon the rents and profits thereof, that is made or created with the intent to defraud prior or subsequent purchasers for a valuable consideration of the land, rents, or profits, as against these purchasers, is void.

Sec. 34.40.030. Purchasers with notice.

A conveyance or charge is not considered fraudulent in favor of a subsequent purchaser who has actual or legal notice of it at the time of the purchase, unless it appears that the grantee in the conveyance, or person to be benefited by the charge, was privy to the fraud intended.

Sec. 34.40.040. Invalidating effect of provision for revocation, determination, or alteration.

A conveyance or charge of or upon an estate or interest in land containing a provision for the revocation, determination, or alteration of the estate or interest, or a part of it, at the will of the grantor, is void as against subsequent purchasers from the grantor for a valuable consideration of an estate or interest liable to be revoked or determined, although the estate or interest is not expressly revoked, determined, or altered by the grantor by virtue of the power reserved or expressed in a prior conveyance or charge.

Sec. 34.40.050. Conveyance in exercise of power to revoke and reconvey.

Where a power to revoke a conveyance of land, or the rents and profits from it, and to reconvey the land or the rents and profits is given to a person other than the grantor in the conveyance, and the person subsequently conveys the land, rents, or profits to a purchaser for a valuable consideration, the subsequent conveyance is valid in the same manner and to the same extent as if the power of revocation were recited in it and the intent to revoke the former conveyance expressly declared.

Sec. 34.40.060. Conveyance before accrual of right to execute power of revocation.

If a conveyance to a purchaser under either AS 34.40.040 or 34.40.050 is made before the person making the conveyance is entitled to execute the power of revocation, it nevertheless is valid from the time the power of revocation actually vests in the person, in the same manner and to the same extent as if then made.

Sec. 34.40.070. Requirement of writing for grant or assignment of trust.

A grant or assignment of an existing trust in land, goods, or things in action, unless the grant or assignment is in writing, subscribed by the person making it, or a lawfully authorized agent of the person, is void.

Sec. 34.40.080. Invalidity against heirs, successors, representatives, or assigns.

A conveyance, charge, instrument, or proceeding declared by law to be void as against the creditors, purchasers, or mortgagees is equally void as against the heirs, successors, personal representatives, or assigns of the creditors, purchasers, or mortgagees.

Sec. 34.40.090. Fraudulent intent question of fact.

The question of fraudulent intent in a case arising under the provisions of this chapter is a question of fact, and not of law.

Sec. 34.40.100. When title of purchaser for value not affected.

The provisions of AS 34.40.010 and 34.40.070 - 34.40.130 may not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration unless it appears that the purchaser had previous notice of the fraudulent intent of the purchaser's immediate grantor, or of the fraud rendering void the title of the grantor.

Sec. 34.40.110. Restricting transfers of trust interests.

(a) A person who in writing transfers property in trust may provide that the interest of a beneficiary of the trust may not be either voluntarily or involuntarily transferred before payment or delivery of the interest to the beneficiary by the trustee. In this subsection,

(1) "property" includes real property, personal property, and interests in real or personal property;

(2) "transfer" means any form of transfer, including deed, conveyance, or assignment.

(b) If a trust contains a transfer restriction allowed under (a) of this section, the transfer restriction prevents a creditor existing when the trust is created, a person who subsequently becomes a creditor, or another person from satisfying a claim out of the beneficiary's interest in the trust, unless the

(1) transfer was intended in whole or in part to hinder, delay, or defraud creditors or other persons under AS 34.40.010 ;

(2) trust provides that the settlor may revoke or terminate all or part of the trust without the consent of a person who has a substantial beneficial interest in the trust and the interest would be adversely affected by the exercise of the power held by the settlor to revoke or terminate all or part of the trust; in this paragraph, "revoke or terminate" does not include a power to veto a distribution from the trust, a testamentary special power of appointment or similar power, or the right to receive a distribution of income, corpus, or both in the discretion of a person, including a trustee, other than the settlor;

(3) trust requires that all or a part of the trust's income or principal, or both, must be distributed to the settlor; or

(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.

(c) The satisfaction of a claim under (b)(1) - (4) of this section is limited to that part of the trust to which (b)(1) - (4) of this section applies.

(d) A cause of action or claim for relief with respect to a fraudulent transfer under (b)(1) of this section, or under other law, is extinguished unless the action is brought as to a person who

(1) is a creditor when the trust is created, within the later of

(A) four years after the transfer is made; or

(B) one year after the transfer is or reasonably could have been discovered by the person; or

(2) becomes a creditor subsequent to the transfer into trust, within four years after the transfer is made.

(e) If a trust contains a transfer restriction allowed under (a) of this section, the transfer restriction prevents a creditor existing when the trust is created, a person who subsequently becomes a creditor, or another person from asserting any cause of action or claim for relief against a trustee of the trust or against others involved in the preparation or funding of the trust for conspiracy to commit fraudulent conveyance, aiding and abetting a fraudulent conveyance, or participation in the trust transaction. The creditor and other person prevented from asserting a cause of action or claim for relief are limited to recourse against the trust assets and the settlor to the extent allowed under AS 34.40.010 .

(f) In this section, "settlor" means a person who transfers real property, personal property, or an interest in real or personal property, in trust.

Sec. 34.40.120. ""Land'' and ""estate and interest in land'' defined.

The term "land" as used in this chapter shall be construed as coextensive in meaning with "lands, tenements, and hereditaments," and the term "estate and interest in land" shall be construed to embrace every interest, freehold, and chattel, legal and equitable, present and future, vested and contingent in land as defined in this section.

Sec. 34.40.130. ""Conveyance'' defined.

The term "conveyance," as used in this chapter, shall be construed to embrace every instrument in writing except a last will and testament, of whatever form and by whatever name it may be known in law, by which an estate or interest in land is created, aliened, assigned, or surrendered.

Chapter 34.45. UNCLAIMED PROPERTY
Article 01. CONSIGNEES AND BAILEES

Sec. 34.45.010. Record of consignee or bailee.

When personal property is consigned to or deposited with a forwarding merchant, wharf, warehouse, or tavern keeper, or the keeper of a depot for the reception and storage of trunks, baggage, merchandise, or other personal property, the consignee or bailee shall immediately record a description of the property, and the date of receipt, in a book kept by the consignee or bailee.

Sec. 34.45.020. Consignee's or bailee's notice to owner.

If the property is not left with the consignee or bailee for the purpose of being forwarded, disposed of, or kept according to directions received by the consignee or bailee, at or before the time of the reception of the property, and if the name and residence of the owner of the property is known to the person having possession of the property, the consignee or bailee shall immediately notify the owner, by letter directed to the owner and deposited in the post office, of the reception of the property.

Sec. 34.45.030. Sale.

If property held by a person described in AS 34.45.010 is not claimed and taken away within one year after the time it is received, the person having possession of the property may sell the property in the manner provided in AS 34.45.010 - 34.45.080, except that property described in AS 34.45.110 - 34.45.260 shall be reported to the Department of Revenue under AS 34.45.280 and is subject to AS 34.45.290 - 34.45.780.

Sec. 34.45.040. Presale inventory and notice.

(a) Before the property is sold, the person in possession of it shall request the district judge or magistrate in the judicial district where the property is located to inventory the property.

(b) Upon the request the district judge or magistrate or a person, other than the holder of the property or the holder's agent, appointed by the district judge or magistrate, shall attend and, in the presence of the holder, or the holder's agent, shall open, examine, and inventory the property. The inventory must be in duplicate, one copy of which shall be filed with the district judge or magistrate and one copy retained by the holder of the property.

(c) After the property is inventoried, the holder, or the holder's agent, may give notice of an intention to sell it in the following manner:

(1) if the name and residence of the owner of the property is known, by serving the notice upon the owner either personally, or at the owner's place of residence or business, or by registered mail;

(2) if the name and residence of the owner of the property is unknown to the holder, then the holder may serve the notice by publication once a week for two successive weeks in a newspaper of general circulation published in the area nearest to where the property is held.

(d) The notice must contain (1) a reasonably correct description of the property; (2) the name and residence of the owner, if known; (3) the name and residence of the holder; (4) the amount of the charges accrued and costs incurred; and (5) a statement that the holder on a certain date, that shall be specified and may not be less than three weeks after the day on which the notice is served or, if published, on which the notice is first published, will apply to the district judge or magistrate for an order to sell the property to satisfy all charges and costs that have accrued or been incurred to that date.

Alaska Asset Protection