AS 13.06 - AS 13.36 shall be known and may be cited as the Uniform Probate Code.
(a) AS 13.06 - AS 13.36 shall be liberally construed and applied to promote their underlying purposes and policies. (b) The underlying purposes and policies of AS 13.06 - AS 13.36 are to (1) simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons; (2) discover and make effective the intent of a decedent in distribution of the decedent's property; (3) promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent's successors; (4) facilitate use and enforcement of certain trusts; and (5) make uniform the law among the various jurisdictions.
Unless displaced by the particular provisions of AS 13.06 - AS 13.36, the principles of law and equity supplement those provisions.
If any provision of AS 13.06 - AS 13.36 or their application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of AS 13.06 - AS 13.36 that can be given effect without the invalid provision or application, and to this end the provisions of AS 13.06 - AS 13.36 are declared to be severable.
AS 13.06 - AS 13.36 are intended to provide a unified coverage of their subject matter. No part of AS 13.06 - AS 13.36 may be impliedly repealed by subsequent legislation if it can reasonably be avoided.
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under AS 13.06 - AS 13.36 or if fraud is used to avoid or circumvent the provisions or purposes of AS 13.06 - AS 13.36, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during the decedent's lifetime that affects the succession of the decedent's estate.
In addition to the Alaska Rules of Evidence, the following rules relating to a determination of death and status apply: (1) death occurs when an individual has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem; a determination of death shall be made under accepted medical standards; (2) a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent; (3) a certified or authenticated copy of a record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report; (4) in the absence of prima facie evidence of death under (2) or (3) of this section, the fact of death may be established by clear and convincing evidence, including circumstantial evidence; (5) an individual whose death is not established under (1) - (4) of this section and who is absent for a continuous period of five years, during which the individual has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead; the individual's death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier; (6) in the absence of evidence disputing the time of death stated on a document described in (2) or (3) of this section, a document described in (2) or (3) of this section that states a time of death 120 hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by at least 120 hours.
For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, to register a trust, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are considered to act for beneficiaries to the extent their interests, as objects, takers in default, or otherwise, are subject to the power.
Subject to additional definitions contained in AS 13.06 - AS 13.36 that are applicable to specific provisions of AS 13.06 - AS 13.36, and unless the context otherwise requires, in AS 13.06 - AS 13.36, (1) agent means a person granted authority to act for a principal under a power of attorney or to whom an agent's authority is delegated, whether denominated an agent, attorney-in-fact, original agent, coagent, successor agent, or otherwise; (2) application means a written request to the registrar for an order of informal probate or appointment under AS 13.16.080 - 13.16.130; (3) beneficiary, as it relates to a trust beneficiary, includes a person who has a present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, beneficiary includes a person entitled to enforce the trust; as it relates to a beneficiary of a beneficiary designation, beneficiary means a beneficiary of an insurance or annuity policy, of an account with payment on death designation under AS 13.33, of a security registered in beneficiary form under AS 13.33, or of a pension, profit-sharing, retirement, or similar benefit plan, or of another nonprobate transfer at death; and, as it relates to a beneficiary designated in a governing instrument, beneficiary includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of appointment, and a person in whose favor a power of attorney or a power held in an individual, fiduciary, or representative capacity is exercised; (4) beneficiary designation means a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with payment on death designation under AS 13.33, of a security registered in beneficiary form under AS 13.33, or of a pension, profit-sharing, retirement, or similar benefit plan, or of another nonprobate transfer at death; (5) child includes an individual entitled to take as a child under AS 13.06 - AS 13.36 by intestate succession from the parent whose relationship is involved, and excludes a person who is only a stepchild, a foster child, a grandchild, or a more remote descendant; (6) claims, in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person, whether arising in contract, in tort, or in another way, and liabilities of the estate that arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration; claims does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate; (7) conservator means a person who is appointed by a court to manage the estate of a protected person; (8) court means the superior court in this state; (9) descendant of an individual means all of the individual's descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in AS 13.06 - AS 13.36; (10) devise, when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will; (11) devisee means a person designated in a will to receive a devise; in AS 13.16, in the case of a devise to an existing trust or trustee, or to a trust or trustee described by will, the trust or trustee is the devisee and the beneficiaries are not devisees; (12) disability means a cause for a protective order as described in AS 13.26.401; (13) distributee means a person who has received property of a decedent from the decedent's personal representative other than as a creditor or purchaser; distributee includes a testamentary trustee only to the extent of the distributed assets, or increment to the distributed assets, remaining in the hands of the testamentary trustee; distributee includes a beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative; in this paragraph, testamentary trustee includes a trustee to whom assets are transferred by will, to the extent of the devised assets; (14) durable, with respect to a power of attorney, means not terminated by the principal's incapacity; in this paragraph, incapacity has the meaning given in AS 13.26.695; (15) electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities; (16) estate includes the property of the decedent, trust, or other person whose affairs are subject to AS 13.06 - AS 13.36, as originally constituted and as it exists from time to time during administration; (17) exempt property means the property of a decedent's estate that is described in AS 13.12.403; (18) fiduciary includes a personal representative, guardian, conservator, and trustee; (19) foreign personal representative means a personal representative appointed by another jurisdiction; (20) formal proceedings means proceedings conducted before a judge with notice to interested persons; (21) governing instrument means a deed, a will, a trust, an insurance or annuity policy, an account with payment on death designation under AS 13.33, a security registered in beneficiary form under AS 13.33, a pension, profit-sharing, retirement, or similar benefit plan, an instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of a similar type; (22) guardian means a person who has qualified as a guardian of a minor or incapacitated person in accordance with testamentary or court appointment, but excludes a person who is merely a guardian ad litem; (23) heir, except as controlled by AS 13.12.711, means a person, including the surviving spouse and the state, who is entitled under the statutes of intestate succession to the property of a decedent; (24) incapacitated person has the meaning given in AS 13.26.005; (25) informal proceedings means those proceedings conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative; (26) interested person includes heirs, devisees, children, spouses, creditors, beneficiaries, and other persons having property rights in or claims against a trust estate or the estate of a decedent, ward, or protected person; interested person also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons; interested person, as it relates to particular persons, may vary from time to time and its meaning shall be determined according to the particular purposes of, and matter involved in, a proceeding; (27) issue of a person means a descendant under (9) of this section; (28) joint tenants with the right of survivorship includes co-owners of property held under circumstances that entitle one or more of the co-owners to the whole of the property on the death of one or more of the other co-owners, but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party's contribution; (29) lease includes an oil, gas, or mineral lease; (30) letters includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship; (31) minor means a person who is under 18 years of age; (32) mortgage means a conveyance, agreement, or arrangement in which property is encumbered or used as security; (33) nonresident decedent means a decedent who was domiciled in another jurisdiction at the time of the decedent's death; (34) organization means a corporation, business trust, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency, or another legal or commercial entity; (35) parent includes a person entitled to take, or who would be entitled to take if a child dies without a will, as a parent under AS 13.06 - AS 13.36 by intestate succession from the child whose relationship is in question, and excludes a person who is only a stepparent, foster parent, or grandparent; (36) payor means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or another person authorized or obligated by law or a governing instrument to make payments; (37) person means an individual or an organization; (38) personal representative includes an executor, an administrator, a successor personal representative, a special administrator, and a person who performs substantially the same function under the law governing their status; general personal representative excludes a special administrator; (39) petition means a written request to the court for an order after notice; (40) power of attorney means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term "power of attorney" is used; (41) principal means an individual who grants authority to an agent in a power of attorney; (42) proceeding includes an action at law and a suit in equity; (43) property means anything that may be the subject of ownership, and includes both real and personal property and an interest in real or personal property; (44) protected person has the meaning given in AS 13.26.005; (45) protective proceeding has the meaning given in AS 13.26.005; (46) record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; (47) registrar means the official of the court designated to perform the functions of registrar under AS 13.06.090; (48) security includes a note, a stock, a treasury stock, a bond, a debenture, an evidence of indebtedness, a certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under an oil, gas, or mining title or lease, a collateral trust certificate, a transferable share, a voting trust certificate, an interest or instrument commonly known as a security, or a certificate of interest or participation in, a temporary or interim certificate, receipt, or certificate of deposit for, or a warrant or right to subscribe to or purchase, one of the items identified in this paragraph; (49) settlement, in reference to a decedent's estate, includes the full process of administration, distribution, and closing; (50) sign means, with present intent to authenticate or adopt a record, (A) to execute or adopt a tangible symbol; or (B) to attach to or logically associate with the record an electronic sound, symbol, or process. (51) special administrator means a personal representative as described by AS 13.16.310 - 13.16.330; (52) state means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or a territory or insular possession subject to the jurisdiction of the United States; (53) successor means a person, other than a creditor, who is entitled to property of a decedent under the decedent's will or AS 13.06 - AS 13.36; (54) successor personal representative means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative; (55) supervised administration refers to the proceedings described in AS 13.16.215 - 13.16.235; (56) survive means to not predecease an event, including the death of another individual, or to not be considered to predecease an event under AS 13.12.104 or 13.12.702; survive includes its derivatives, including survives, survived, survivor, and surviving; (57) testacy proceeding means a proceeding to establish a will or determine intestacy; (58) testator includes an individual of either sex; (59) trust includes an express trust, private or charitable, with additions to the trust, wherever and however created; trust also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust; trust excludes other constructive trusts, resulting trusts, conservatorships, personal representatives, trust accounts that are POD designation accounts under AS 13.33.201 - 13.33.227, custodial arrangements under AS 13.26 or AS 13.46, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another; (60) trustee includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court; (61) ward has the meaning given in AS 13.26.005; (62) will includes a codicil and a testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.
Except as otherwise provided in AS 13.06 - AS 13.36, AS 13.06 - AS 13.36 apply to (1) the affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state; (2) the property of nonresidents located in this state or property coming into the control of a fiduciary who is subject to the laws of this state; (3) incapacitated persons and minors in this state; (4) survivorship and related accounts in this state; and (5) trusts subject to administration in this state.
To the full extent permitted by the constitution, the court has jurisdiction over all subject matter relating to (1) estates of decedents, including construction of wills and determination of heirs and successors of decedents, and estates of protected persons; (2) protection of minors and incapacitated persons; and (3) trusts.
(a) Subject to the other provisions of this section, the formal validity, intrinsic validity, effect, interpretation, revocation, or alteration of a testamentary disposition of real property and the manner in which the property descends at death when not disposed of by will are determined by the law of the jurisdiction in which the land is situated. (b) Subject to the other provisions of this section, the intrinsic validity, effect, revocation, or alteration of a testamentary disposition of personal property and the manner in which the property devolves at death when not disposed of by will are determined by the law of the jurisdiction in which the decedent was domiciled at death. (c) A will disposing of personal property, wherever situated, or real property situated in this state made within or outside this state by a domiciliary or nondomiciliary of the state where the property is situated, is formally valid and admissible to probate in this state if the will is in writing and signed by the testator and otherwise executed and attested to under the local law of (1) this state; (2) the jurisdiction where the will was executed at the time of execution; or (3) the jurisdiction where the testator was domiciled, either at the time of execution or at death. (d) A testamentary disposition of personal property intrinsically valid under the law of the jurisdiction where the testator was domiciled when the will was executed is not affected by a subsequent change in the domicile of the testator to a jurisdiction under the law of which the disposition is intrinsically invalid. (e) The interpretation of a testamentary disposition of personal property shall be made under the local law of the jurisdiction where the testator was domiciled when the will was executed. (f) Whether a testamentary disposition of personal property is effectively revoked or altered by a subsequent testamentary instrument or by a physical act to or on the will by which the testamentary disposition was made is determined by the local law of the jurisdiction where the testator was domiciled when the subsequent instrument was executed or the physical act performed. (g) Subject to (d) - (f) of this section, the intrinsic validity, effect, revocation, or alteration of a testamentary disposition by which a power of appointment over personal property is exercised and the question of whether the power has been exercised at all are determined by (1) in the case of a presently exercisable general power of appointment, the local law of the jurisdiction where the donee of the power was domiciled at the time of death; (2) in the case of a general power of appointment exercisable by will alone or a special power of appointment, the local law of the jurisdiction (A) that the donor of the power expressly selected in the governing instrument to govern the disposition; or (B) where the donor of the power was domiciled at the time of death if the donor did not expressly select in the governing instrument a jurisdiction to govern the disposition. (h) The formal validity of a will by which a power of appointment over personal property is exercised is determined under (b) of this section on the basis that the testator referred to in (b) of this section is the donee of the power. (i) When a testator, who is not domiciled in this state at the time of death, provides in the testator's will that the testator elects to have the disposition of the testator's property situated in this state governed by the local law of this state, the intrinsic validity, including the testator's general capacity, effect, interpretation, revocation, or alteration of the provision, is determined by the local law of this state. The formal validity of the will is determined under (b) of this section. (j) Notwithstanding the definition of real property, as set out in (l) of this section, whether an estate in, leasehold of, fixture, mortgage, or other lien on land is real property governed by (a) of this section or personal property governed by (b) of this section is determined by the local law of the jurisdiction where the land is situated. (k) Notwithstanding the other provisions of AS 13.06 - AS 13.36, the provisions of this section govern in AS 13.06 - AS 13.36. (l) In this section, (1) effect means the legal consequences attributed under the local law of a jurisdiction to a valid testamentary disposition; (2) formal validity means the formalities established by the local law of a jurisdiction for the execution and attestation of a will; (3) interpretation means the procedure of applying the law of a jurisdiction to determine the meaning of language employed by the testator if the testator's intention is not otherwise ascertainable; (4) intrinsic validity means the rules of substantive local law by which a jurisdiction determines the legality of a testamentary disposition, including the general capacity of the testator; (5) local law means the law that the courts of a jurisdiction apply when adjudicating legal questions that are not related to another jurisdiction; (6) personal property means property other than real property, and includes tangible and intangible property; (7) real property means land or an estate in land, and includes leaseholds, fixtures, and mortgages or other liens on land; (8) testamentary disposition means disposition under a will.
(a) Where a proceeding under AS 13.06 - AS 13.36 could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed. (b) If proceedings concerning the same estate, protected person, ward, or trust are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court. (c) If a court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.
The clerk of the court shall keep a record for each decedent, ward, protected person, or trust involved in any document that may be filed with the court under AS 13.06 - AS 13.36, including petitions and applications, demands for notices or bonds, trust registrations, and of any orders or responses relating thereto by the registrar or court, and establish and maintain a system for indexing, filing, or recording that is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk shall issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to probated wills must indicate whether the decedent was domiciled in this state and whether the probate was formal or informal. Certificates relating to letters must show the date of appointment.
(a) If duly demanded, a party is entitled to trial by jury in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury. (b) If there is no right to trial by jury under (a) of this section or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only.
The acts and orders that AS 13.06 - AS 13.36 specify as performable by the registrar may be performed either by a judge of the court or by a person, including the clerk, designated by the court by a written order filed and recorded in the office of the court.
Except as otherwise specifically provided in AS 13.06 - AS 13.36 or by rule, every document filed with the court under AS 13.06 - AS 13.36 including applications, petitions, and demands for notice, shall be considered to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and penalties for perjury may follow deliberate falsification in the document.
(a) If notice of a hearing on any petition is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or the person's attorney if the person has appeared by attorney or requested that notice be sent to the attorney. Notice shall be given (1) by mailing a copy of the notice at least 14 days before the time set for the hearing by certified, registered, or ordinary first-class mail addressed to the person being notified at the post office address given in the person's demand for notice, if any, or at the person's office or place of residence, if known; (2) by delivering a copy thereof to the person being notified personally at least 14 days before the time set for the hearing; or (3) if the address or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing at least once a week for three consecutive weeks, a copy of the notice in a newspaper having general circulation in the judicial district where the hearing is to be held, the last publication of which is to be at least 10 days before the time set for the hearing. (b) The court for good cause shown may provide for a different method or time of giving notice for any hearing. (c) Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.
A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by the person or the person's attorney and filed in the proceeding.
(a) In any proceedings involving trusts, nonprobate assets, or estates of decedents, minors, protected persons, or incapacitated persons brought under AS 13.06 - AS 13.36 or AS 13.38, the following apply: (1) interests to be affected shall be described in pleadings that give reasonable information to owners by name or class, by reference to the instrument creating the interests, or in other appropriate manner; (2) persons are bound by orders binding others in the following cases: (A) orders binding the sole holder or all co-holders of a power of revocation or a general or nongeneral power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests, as objects, takers in default, or otherwise, are subject to the power; (B) to the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate the conservator controls; orders binding a guardian bind the ward if no conservator of the estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary, and in proceedings involving creditors or other third parties; orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate; and orders binding an agent having authority to act with respect to the particular questions or dispute bind the principal; if there is no conflict of interest and no conservator or guardian has been appointed, a parent may represent the minor child; (C) an unborn person, a minor, an incapacitated person, or a person whose identity or location is unknown or not reasonably ascertainable who is not otherwise represented is bound by an order to the extent the interest is adequately represented by another party having a substantially identical interest in the proceeding; (D) with regard to interests given upon the happening of a certain event to persons who comprise a certain class, orders binding the living persons who would constitute the class, if the event had happened immediately before the commencement of the proceeding, bind all members of the class; (E) with regard to an interest given to a living person when the same interest or a share of the interest is to pass to the surviving spouse or to persons who are or might be the distributees, devisees, heirs, or issue of the living person upon the happening of a future event, orders binding the living person bind the surviving spouse, distributees, devisees, heirs, or issue of the living person; (F) with regard to interests given to a person or a class of persons, or to both, upon the happening of a future event, if the same interest or a share of the interest is to pass to another person or class of persons, or to both, upon the happening of an additional future event, orders binding the living person or class of persons who would take the interest upon the happening of the first event bind the persons and classes of persons who might take on the happening of the additional future event; (G) if a person is designated by a trust instrument to represent and bind a born or unborn beneficiary of the trust and receive a notice, information, accounting, or report for the beneficiary, then the beneficiary is bound by an order binding the designated person; in this subparagraph, (i) the settlor may make the designation in the trust instrument, in a separate document, or by a trust protector authorized in the trust instrument to make the designation; (ii) except as otherwise provided in this subparagraph, a person designated under (i) of this subparagraph may not represent and bind a beneficiary while the designated person is serving as trustee; (iii) except as otherwise provided in this subparagraph, a person designated under (i) of this subparagraph may not represent and bind another beneficiary if the designated person also is a beneficiary, unless the designated person was named by the settlor, is the beneficiary's spouse, or is a grandparent or descendant of a grandparent of the beneficiary or the beneficiary's spouse; in this sub-subparagraph, spouse means the individual to whom the beneficiary is married and with whom the beneficiary is living, and a physical separation primarily for education, business, health, and similar reasons does not prevent the individual from being considered to be living with the beneficiary; (3) a person representing another person under (2)(A) - (F) of this section and a person designated under (2)(G)(i) of this section are not liable to the beneficiary whose interests are represented, or to a person claiming through that beneficiary, for an action or omission to act made in good faith; (4) notice is required as follows: (A) notice as prescribed by AS 13.06.110 shall be given to every interested person or to one person who can bind an interested person as described in (2)(A), (B), or (D) - (G) of this section; notice may be given both to a person and to another person who may bind the person; (B) notice is given to unborn persons, a minor, an incapacitated person, or a person whose identity or location is unknown or not reasonably ascertainable, and persons who are not represented under (2)(A), (B), or (D) - (G) of this section, by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn persons, the minor, the incapacitated person, or the person whose identity or location is unknown or not reasonably ascertainable; (5) at any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of an unborn person, a minor, an incapacitated person, or a person whose identity or address is unknown or not reasonably ascertainable, if the court determines that representation of the interest otherwise would be inadequate; if not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests; the court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding. (b) In this section, (1) order means a judicial order, a nonjudicial order, the result of the settlement of an account of a fiduciary under a procedure authorized by AS 13.06 - AS 13.36 or AS 13.38, and a settlement agreement resulting from a proceeding; (2) proceeding means a judicial proceeding, a nonjudicial proceeding, the settlement of an account of a fiduciary under a procedure authorized by AS 13.06 - AS 13.36 or AS 13.38, and a settlement negotiation, even if the settlement negotiation does not involve a judicial or nonjudicial third party who decides or facilitates a settlement.
(a) A part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in AS 13.06 - AS 13.36, except as modified by the decedent's will. (b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed the intestate share of the individual or member.
(a) Except as provided in (b) of this section, the intestate share of a decedent's surviving spouse is (1) the entire intestate estate if (A) no descendant or parent of the decedent survives the decedent; or (B) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent; (2) the first $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; (3) the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent; (4) the first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse. (b) The intestate share of the surviving spouse in settlement common stock or other inalienable stock in a corporation organized under the laws of the state under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act) is (1) all of it if there is no surviving issue; or (2) one-half of it if the decedent is survived by issue.
A part of the intestate estate not passing to the decedent's surviving spouse under AS 13.12.102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent: (1) to the decedent's descendants by representation; (2) if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent; (3) if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation; (4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
An individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is considered that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under AS 13.12.105.
If there is no taker under this chapter, (1) personal property in the intestate estate passes to the state and is subject to AS 34.45.280 - 34.45.780; if notice to heirs, substantially equivalent to that required by AS 34.45.310, has been given by the personal representative or other person, AS 34.45.310 does not apply; (2) real property in the intestate estate passes to the state and is subject to AS 38.95.200 - 38.95.270.
(a) If, under AS 13.12.103(1), all or part of a decedent's intestate estate passes by representation to the decedent's descendants, the estate or part of the estate passing is divided into as many equal shares as there are (1) surviving descendants in the generation nearest to the decedent that contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. (b) Under (a) of this section, each surviving descendant in the nearest generation is allocated one share, and the remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent. (c) If, under AS 13.12.103(3) or (4), all or part of a decedent's intestate estate passes by representation to the descendants of the decedent's deceased parents or either of them or to the descendants of the decedent's deceased paternal or maternal grandparents or either of them, the estate or part of the estate passing is divided into as many equal shares as there are (1) surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. (d) Under (c) of this section, each surviving descendant in the nearest generation is allocated one share, and the remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent. (e) In this section, deceased descendant, deceased parent, or deceased grandparent means a descendant, parent, or grandparent who either predeceased the decedent or is considered to have predeceased the decedent under AS 13.12.104.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.
(a) If an individual dies intestate as to all or a portion of the individual's estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement; or (2) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate. (b) For purposes of (a) of this section, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs. (c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.
A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants.
An individual is not disqualified to take as an heir because the individual or another individual through whom the individual claims is or has been an alien.
An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.
(a) Except as provided in (b) - (d) of this section, for purposes of intestate succession by, through, or from a person, an individual is the child of the individual's natural parents, regardless of their marital status, and the parent and child relationship may be established as indicated under AS 25.20.050. (b) An adopted individual is the child of the individual's adopting parent or parents and not of the individual's natural parents, but adoption of a child by the spouse of either natural parent does not affect (1) the relationship between the child and that natural parent; or (2) the right of the child or a descendant of the child to inherit from or through the other natural parent. (c) Inheritance from or through a child by either natural parent or the natural parent's kindred is precluded unless that natural parent has openly treated the child as the natural parent's child, and has not refused to support the child. (d) To the extent there is a conflict between this section and either AS 25.20.050 or AS 25.23.130, this section controls.
(a) Subject to (c) of this section, a trust may be performed by the trustee for 21 years but not longer, whether or not the terms of the trust contemplate a longer duration, if (1) the trust is for a specific lawful, noncharitable purpose or for a lawful, noncharitable purpose to be selected by the trustee; and (2) there is not a definite or definitely ascertainable beneficiary designated. (b) Except as otherwise provided by this subsection and (c) of this section, a trust for the care of a designated domestic or pet animal is valid. The trust terminates when a living animal is not covered by the trust. A governing instrument shall be liberally construed to bring the transfer within this subsection, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent. (c) In addition to the provisions of (a) or (b) of this section, a trust covered by either of those subsections is subject to the following provisions: (1) except as expressly provided otherwise in the trust instrument, a portion of the principal or income may not be converted to the use of the trustee or to a use other than for the trust's purposes or for the benefit of a covered animal; (2) upon termination, the trustee shall transfer the unexpended trust property in the following order: (A) as directed in the trust instrument; (B) if the trust was created in a nonresiduary clause in the transferor's will or in a codicil to the transferor's will, under the residuary clause in the transferor's will; and (C) if a taker is not produced by the application of (A) or (B) of this paragraph, to the transferor's heirs under AS 13.12.711; (3) for the purposes of AS 13.12.707, the residuary clause is treated as creating a future interest under the terms of a trust; (4) the intended use of the principal or income may be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court upon application to the court by an individual; (5) except as ordered by the court or required by the trust instrument, a filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is not required by reason of the existence of the fiduciary relationship of the trustee; (6) a court may reduce the amount of the property transferred, if it determines that amount substantially exceeds the amount required for the intended use; the amount of the reduction, if any, passes as unexpended trust property under (2) of this subsection; (7) if a trustee is not designated or a designated trustee is not willing or able to serve, a court shall name a trustee; a court may order the transfer of the property to another trustee, if required to assure that the intended use is carried out and if a successor trustee is not designated in the trust instrument or if a designated successor trustee does not agree to serve or is unable to serve; a court may also make other orders and determinations as are advisable to carry out the intent of the transferor and the purpose of this section.
(a) Except as provided by AS 13.06.068, a will is valid as regards form, irrespective of the place where the will is made, of the location of the assets, and of the nationality, domicile, or residence of the testator, if the will is made in the form of an international will complying with the requirements of AS 13.12.912 - 13.12.921. (b) The invalidity of the will as an international will does not affect its formal validity as a will of another kind. (c) AS 13.12.912 - 13.12.921 do not apply to the form of testamentary dispositions made by two or more persons in one instrument.
(a) The international will must be written. The will does not need to be written by the testator. The will may be written in any language, or by hand or other means. (b) The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is the testator's will and that the testator knows the contents of the will. The testator does not need to inform the witnesses, or the authorized person, of the contents of the will. (c) In the presence of the witnesses, and of the authorized person, the testator shall sign the international will, or, if the testator has previously signed it, shall acknowledge the testator's signature. (d) When the testator is unable to sign, the absence of the testator's signature does not affect the validity of the international will if the testator indicates the reason for the testator's inability to sign and the authorized person makes note of the reason on the will. In these cases, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator, to sign the testator's name for the testator, if the authorized person makes note of this also on the will, but it is not required that a person sign the testator's name for the testator. (e) The witnesses and the authorized person shall there and then attest the international will by signing in the presence of the testator.
(a) The signatures shall be placed at the end of the international will. If the will consists of several sheets, each sheet shall be signed by the testator or, if the testator is unable to sign, by the person signing on the testator's behalf or, if a person is not signing on the testator's behalf, by the authorized person. In addition, each sheet shall be numbered. (b) The date of the international will is the date of its signature by the authorized person. That date shall be noted at the end of the will by the authorized person. (c) The authorized person shall ask the testator whether the testator wishes to make a declaration concerning the safekeeping of the will. If so and at the express request of the testator the place where the testator intends to have the will kept shall be mentioned in the certificate provided for in AS 13.12.915. (d) An international will executed in compliance with AS 13.12.913 is not invalid merely because it does not comply with this section.
The authorized person shall attach to the international will a certificate to be signed by the authorized person establishing that the requirements of AS 13.12.912 - 13.12.921 for valid execution of an international will have been complied with. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate shall be substantially in the following form: CERTIFICATE(Convention of October 26, 1973)1. I, _____________________________________ (name, address, and capacity), a person authorized to act in connection with international wills2. certify that on __________ (date) at __________________________________ (place)3. (testator) _____________________________________ (name, address, date, and place of birth) in my presence and that of the witnesses4. (a) _____________________________________ (name, address, date, and place of birth)(b) _____________________________________ (name, address, date, and place of birth) has declared that the attached document is the testator's will and that the testator knows the contents of the will;5. I furthermore certify that:6. (a) in my presence and in that of the witnesses(1) the testator has signed the will or has acknowledged the testator's signature previously affixed.* (2) following a declaration of the testator stating that the testator was unable to sign the testator's will for the following reason _____________________________________________________, I have mentioned this declaration on the will*and the signature has been affixed by _____________________________________ (name and address)7. (b) the witnesses and I have signed the will;8. * (c) each page of the will has been signed by __________________________________ and numbered;9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;10. (e) the witnesses met the conditions requisite to act as witnesses according to the law under which I am acting;11. * (f) the testator has requested me to include the following statement concerning the safekeeping of the testator's will:______________________________________12. PLACE OF EXECUTION13. DATE14. SIGNATURE and, if necessary, SEAL* to be completed if appropriate.
In the absence of evidence to the contrary, the certificate of the authorized person is conclusive of the formal validity of the instrument as an international will under AS 13.12.912 - 13.12.921. The absence or irregularity of a certificate does not affect the formal validity of a will under AS 13.12.912 - 13.12.921.
An international will is subject to the ordinary rules of revocation of wills.
AS 13.12.912 - 13.12.917 and 13.12.921 derive from the Annex to Convention of October 26, 1973, Providing a Uniform Law on the Form of an International Will. In interpreting and applying AS 13.12.912 - 13.12.921, regard shall be had to its international origin and to the need for uniformity in its interpretation.
Individuals who are licensed to practice law in this state and who are in good standing as active law practitioners in this state, are hereby declared to be authorized persons in relation to international wills.
The Department of Commerce, Community, and Economic Development shall establish a registry system by which authorized persons may register in a central information center information regarding the execution of international wills, keeping that information in strictest confidence until the death of the maker and then making it available to any person desiring information about any will who presents a death certificate or other satisfactory evidence of the testator's death to the center. Information that may be received, preserved in confidence until death, and reported as indicated is limited to the testator's name, social security, or other individual identifying number established by law, address, and date and place of birth, and the intended place of deposit or safekeeping of the instrument pending the death of the maker. The Department of Commerce, Community, and Economic Development, at the request of the authorized person, may cause the information it receives about execution of an international will to be transmitted to the registry system of another jurisdiction as identified by the testator, if that other system adheres to rules protecting the confidentiality of the information similar to those established in this state.
In AS 13.12.912 - 13.12.921, (1) authorized person and person authorized to act in connection with international wills mean a person who by AS 13.12.919, or by the laws of the United States, including members of the diplomatic and consular service of the United States designated by federal regulations, is empowered to supervise the execution of international wills; (2) international will means a will executed in conformity with AS 13.12.912 - 13.12.915.
(a) In AS 13.12.201 - 13.12.204 and 13.12.206 - 13.12.214, decedent's nonprobate transfers to others means the amounts that are included in the augmented estate under AS 13.12.205. (b) In AS 13.12.201 - 13.12.214, (1) fractional interest in property held in joint tenancy with the right of survivorship, whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent, and which, if the decedent was not a joint tenant, is the number of joint tenants; (2) marriage, as it relates to a transfer by the decedent during marriage, means a marriage of the decedent to the decedent's surviving spouse; (3) nonadverse party means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that the person possesses respecting the trust or other property arrangement; a person having a general power of appointment over property is considered to have a beneficial interest in the property; (4) power or power of appointment includes a power to designate the beneficiary of a beneficiary designation; (5) presently exercisable general power of appointment means a power of appointment under which, at the time in question, the decedent, whether or not the decedent then had the capacity to exercise the power, held a power to create a present or future interest in the decedent, the decedent's creditors, the decedent's estate, or the creditors of the decedent's estate, and includes a power to revoke or invade the principal of a trust or another property arrangement; (6) probate estate means property that would pass by intestate succession if the decedent died without a valid will; (7) property includes values subject to a beneficiary designation; (8) right to income includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement; (9) transfer, as it relates to a transfer by or of the decedent, includes (A) an exercise or release of a presently exercisable general power of appointment held by the decedent; (B) a lapse at death of a presently exercisable general power of appointment held by the decedent; and (C) an exercise, release, or lapse of (i) a general power of appointment that the decedent created in the decedent; and (ii) a power described in AS 13.12.205(a)(2)(B) that the decedent conferred on a nonadverse party.
(a) The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in AS 13.12.201 - 13.12.214, to take an elective share amount equal to one-third of the augmented estate. (b) If the sum of the amounts described in AS 13.12.207, 13.12.209(a)(1), and that part of the elective share amount payable from the decedent's probate estate and nonprobate transfers to others under AS 13.12.209(b) - (c) is less than $50,000, the surviving spouse is entitled to a supplemental elective share amount equal to $50,000, minus the sum of the amounts described in AS 13.12.207 and 13.12.209(a)(1), (b), and (c). The supplemental elective share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set out in AS 13.12.209(b) - (c). (c) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective share and supplemental elective share amounts. (d) The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.
Subject to AS 13.12.208, the value of the augmented estate, to the extent provided in AS 13.12.204 - 13.12.207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others.
The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable claims.
(a) The value of the augmented estate includes the value of the decedent's nonprobate transfers to others, not included under AS 13.12.204, of any of the following types, in the amount provided respectively for each type of transfer: (1) property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent's death; property included under this category consists of (A) property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment; the amount included is the value of the property subject to the power, to the extent the property passed at the decedent's death, by exercise, release, lapse, default, or otherwise, to or for the benefit of a person other than the decedent's estate or surviving spouse; (B) the decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship; the amount included is the value of the decedent's fractional interest, to the extent that the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse; (C) the decedent's ownership interest in property or accounts held in pay on death, transfer on death, or co-ownership registration with the right of survivorship; the amount included is the value of the decedent's ownership interest, to the extent the decedent's ownership interest passed at the decedent's death to or for the benefit of a person other than the decedent's estate or surviving spouse; (D) proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds; the amount included is the value of the proceeds, to the extent the proceeds were payable at the decedent's death to or for the benefit of a person other than the decedent's estate or surviving spouse; (2) property transferred in any of the following forms by the decedent during marriage: (A) an irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property, if and to the extent the decedent's right terminated at or continued beyond the decedent's death; the amount included is the value of the fraction of the property to which the decedent's right related, to the extent the fraction of the property passed outside probate to or for the benefit of a person other than the decedent's estate or surviving spouse; (B) a transfer in which the decedent created a power over the income or property, exercisable by the decedent alone or in conjunction with another person, or exercisable by a nonadverse party, to or for the benefit of the decedent, the decedent's creditors, the decedent's estate, or creditors of the decedent's estate; the amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent's death to or for the benefit of a person other than the decedent's surviving spouse or to the extent the property passed at the decedent's death, by exercise, release, lapse, default, or otherwise, to or for the benefit of a person other than the decedent's estate or surviving spouse; if the power is a power over both income and property and the preceding provision defining the amount included produces different amounts, the amount included is the greater amount; and (3) property that passed during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types: (A) property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under (1)(A), (B), or (C) or (2) of this subsection, if the right, interest, or power had not terminated until the decedent's death; the amount included is the value of the property that would have been included under (1)(A), (B), or (C) or (2) of this subsection, if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of a person other than the decedent or the decedent's estate, spouse, or surviving spouse; as used in this subparagraph, termination, with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in (1)(A) of this subsection, termination occurs when the power terminated by exercise or release, but not otherwise; (B) a transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under (1)(D) of this subsection had the transfer not occurred; the amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent's death to or for the benefit of a person other than the decedent's estate or surviving spouse; (C) a transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse; the amount included is the value of the property transferred to a person to the extent that the aggregate transfers to that person in either of the two years exceeded $10,000. (b) Notwithstanding the other provisions of this section, the augmented estate does not include property transferred to an irrevocable trust with a transfer restriction under AS 34.40.110(a) if (1) the settlor is a discretionary beneficiary of the trust; and (2) the transfer was made more than 30 days before the marriage, or the decedent's spouse consented to the transfer under AS 13.12.208(a)(2).
Excluding property passing to the surviving spouse under 42 U.S.C. 301 - 1397f (Social Security Act), the value of the augmented estate includes the value of the decedent's nonprobate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including (1) the decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant; (2) the decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and (3) all other property that would have been included in the augmented estate under AS 13.12.205(a)(1) or (2) had it passed to or for the benefit of a person other than the decedent's spouse, the decedent's surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors.
(a) Except to the extent included in the augmented estate under AS 13.12.204 or 13.12.206, the value of the augmented estate includes the value of (1) property that was owned by the decedent's surviving spouse at the decedent's death, including (A) the surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship; (B) the surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and (C) property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under 42 U.S.C. 301 - 1397f (Social Security Act); and (2) property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests included under (1)(A) or (B) of this subsection, had the spouse been the decedent. (b) Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of (a)(1)(A) and (B) of this section, the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of (a)(2) of this section, proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under AS 13.12.205(a)(1)(D) are not valued as if the spouse were deceased. (c) The value of property included under this section is reduced by enforceable claims against the surviving spouse.
(a) The value of property is excluded from the decedent's nonprobate transfers to others (1) to the extent the decedent received adequate and full consideration in money or money's worth for a transfer of the property; or (2) if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse. (b) The value of property (1) included in the augmented estate under AS 13.12.205, 13.12.206, or 13.12.207 is reduced in each category by enforceable claims against the included property; and (2) includes the commuted value of any present or future interest and the commuted value of amounts payable under a trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of 42 U.S.C. 301 - 1397f (Social Security Act). (c) In case of overlapping application to the same property of the provisions of AS 13.12.205, 13.12.206, or 13.12.207, the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if all of the overlapping provisions yield the same value. (d) Notwithstanding the other provisions of this section, the value of community property under AS 34.77 is not included in the augmented estate.
(a) In a proceeding for an elective share, the following are applied first to satisfy the elective share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others: (1) amounts included in the augmented estate under AS 13.12.204 that pass or have passed to the surviving spouse by testate or intestate succession, and amounts included in the augmented estate under AS 13.12.206; and (2) amounts included in the augmented estate under AS 13.12.207, up to two-thirds of the augmented estate. (b) If, after the application of (a) of this section, the elective share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under AS 13.12.205(a)(3)(A) or (C), are applied first to satisfy the unsatisfied balance of the elective share amount or the supplemental elective share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others shall be applied so that liability for the unsatisfied balance of the elective share amount or for the supplemental elective share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of the recipients' interests in the decedent's probate estate and that portion of the decedent's nonprobate transfers to others. (c) If, after the application of (a) and (b) of this section, the elective share or supplemental elective share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others shall be applied so that liability for the unsatisfied balance of the elective share or supplemental elective share amount is equitably apportioned among the recipients of that remaining portion of the decedent's nonprobate transfers to others in proportion to the value of the recipients' interests in the decedent's nonprobate transfers to others.
(a) Only original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective share or supplemental elective share amount. A person liable to make contribution may choose to give up the person's proportional part of the decedent's nonprobate transfers to others or to pay the value of the amount for which the person is liable. (b) If a provision of AS 13.12.201 - 13.12.214 is preempted by federal law with respect to a payment, an item of property, or another benefit included in the decedent's nonprobate transfers to others, a person who, not for value, receives the payment, item of property, or other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in AS 13.12.209, to the person who would have been entitled to it if that provision were not preempted.
(a) Except as provided in (b) of this section, the election shall be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within six months after the probate of the decedent's will, whichever limitation expires later. The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. Except as provided in (b) of this section, the decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the petition is filed more than nine months after the decedent's death. (b) Within nine months after the decedent's death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent's death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court for cause shown by the surviving spouse may extend the time for election. If the court grants the spouse's petition for an extension, the decedent's nonprobate transfers to others are not excluded from the augmented estate for the purpose of computing the elective share and supplemental elective share amounts, if the spouse makes an election by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within the time allowed by the extension. (c) The surviving spouse may withdraw the surviving spouse's demand for an elective share at any time before entry of a final determination by the court. (d) After notice and hearing, the court shall determine the elective share and supplemental elective share amounts, and shall order payment of these amounts from the assets of the augmented estate or by contribution as appears appropriate under AS 13.12.209 and 13.12.210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of a person who has an interest in the fund or property or who has possession of the fund or the property, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but a person is not subject to contribution in a greater amount than the person would have been under AS 13.12.209 and 13.12.210 if relief had been secured against all persons subject to contribution. (e) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
(a) The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the court under AS 13.12.211(a). If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by the surviving spouse's conservator, guardian, or agent under the authority of a power of attorney. (b) If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the portion of the elective share and supplemental elective share amounts due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others under AS 13.12.209(b) and (c) shall be placed in a custodial trust for the benefit of the surviving spouse under AS 13.60 (Alaska Uniform Custodial Trust Act), except as provided in (c) - (e) of this section. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. For the purposes of the custodial trust established by this subsection, (1) the electing guardian, conservator, or agent is the custodial trustee; (2) the surviving spouse is the beneficiary; and (3) the custodial trust is determined to have been created by the decedent spouse by written transfer that takes effect at the decedent spouse's death and that directs the custodial trustee to administer the custodial trust as for an incapacitated beneficiary. (c) An incapacitated beneficiary or a person acting on behalf of an incapacitated beneficiary may not terminate a custodial trust established under (b) of this section; but if the beneficiary regains capacity, the beneficiary then acquires the power to terminate the custodial trust by delivering to the custodial trustee a writing signed by the beneficiary declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary. (d) Expenditures by the custodial trustee of the property of a custodial trust established under (b) of this section shall be made with regard to other support, income, and property of the beneficiary and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the beneficiary must qualify on the basis of need. (e) Upon the beneficiary's death, the custodial trustee shall transfer the unexpended property of a custodial trust established under (b) of this section in the following order: (1) under the residuary clause, if any, of the will of the beneficiary's predeceased spouse against whom the elective share was taken, as if the predeceased spouse died immediately after the beneficiary; (2) to the predeceased spouse's heirs under AS 13.12.711.
(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or to any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse. (b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that (1) the surviving spouse did not execute the waiver voluntarily; or (2) the waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse (A) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; (B) did not voluntarily and expressly waive, in writing, a right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and (C) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent. (c) An issue of unconscionability of a waiver is for decision by the court as a matter of law. (d) Unless it provides to the contrary, a waiver of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to the spouse from the other by intestate succession or by virtue of a will executed before the waiver or property settlement.
(a) Although under AS 13.12.205 a payment, item of property, or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or spouse's representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed. (b) The written notice under (a) of this section of intention to file a petition for the elective share or that a petition for the elective share has been filed shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit an item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if proceedings have not been commenced, to or with the court located in the judicial district of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under AS 13.12.211(d), shall order disbursement in accordance with the determination. If a petition is not filed in the court within the specified time under AS 13.12.211(a) or, if filed, the demand for an elective share is withdrawn under AS 13.12.211(c), the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited. (c) Upon petition to the court by the beneficiary designated in a governing instrument, a court may order that all or part of the property paid or transferred into court under (b) of this section be paid to the beneficiary in an amount and subject to conditions consistent with AS 13.12.201 - 13.12.214.
(a) If a testator's surviving spouse married the testator after the testator executed the testator's will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes under AS 13.12.603 or 13.12.604 to such a child or to a descendant of such a child, unless (1) it appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse; (2) the will expresses the intention that it is to be effective notwithstanding a subsequent marriage; or (3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence. (b) In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under AS 13.12.603 or 13.12.604 to a descendant of the child, abate as provided in AS 13.16.540.
(a) Except as provided in (b) of this section, if a testator fails to provide in the testator's will for the testator's children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows: (1) if the testator did not have a child living when the testator executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will; (2) if the testator had one or more children living when the testator executed the will, and the will devised property or an interest in property to one or more of the then living children, an omitted after-born or after-adopted child is entitled to share in the testator's estate as follows: (A) the portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator's then living children under the will; (B) the omitted after-born or after-adopted child is entitled to receive the share of the testator's estate, as limited in (A) of this paragraph, that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child; (C) to the extent feasible, the interest granted an omitted after-born or after-adopted child under this section must be of the same character, whether equitable or legal, or present or future, as that devised to the testator's then living children under the will; (D) in satisfying a share provided by this paragraph, devises to the testator's children who were living when the will was executed abate ratably; in abating the devises of the then living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator. (b) Neither (a)(1) nor (a)(2) of this section applies if (1) it appears from the will that the omission was intentional; or (2) the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence. (c) If at the time of execution of the will the testator fails to provide in the testator's will for a living child solely because the testator believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child. (d) In satisfying a share provided by (a)(1) of this section, devises made by the will abate under AS 13.16.540.
Except as provided in AS 13.06.068, AS 13.12.401 - 13.12.405 apply to the estate of a decedent who dies domiciled in this state, and rights to homestead allowance, exempt property, and family allowance for a decedent who dies not domiciled in this state are governed by the law of the decedent's domicile at death.
A decedent's surviving spouse is entitled to a homestead allowance of $27,000. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to $27,000 divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to a share passing to the surviving spouse or minor or dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share.
In addition to the homestead allowance, the decedent's surviving spouse is entitled from the estate to a value, not exceeding $10,000 in excess of security interests in the items, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent's children are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $10,000, or if there is not $10,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $10,000 value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of homestead allowance and family allowance. These rights are in addition to a benefit or share passing to the surviving spouse or children by the decedent's will, unless otherwise provided, by intestate succession, or by way of elective share.
(a) In addition to the right to homestead allowance and exempt property, the decedent's surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration. The allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise it is payable to the children, or persons having their care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child's guardian or other person having the child's care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except the homestead allowance. (b) The family allowance is not chargeable against a benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share. The death of a person entitled to family allowance terminates the right to allowances not yet paid.
(a) If the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to homestead allowance or exempt property. Subject to this restriction, the surviving spouse, guardians of minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. The personal representative may make those selections if the surviving spouse, the children, or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. The personal representative may determine the family allowance in a lump sum not exceeding $18,000 or periodic installments not exceeding $1,500 per month for one year, and may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or an interested person aggrieved by a selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may include a family allowance other than that which the personal representative determined or could have determined. (b) If the right to an elective share is exercised on behalf of a surviving spouse who is an incapacitated person, the personal representative may add unexpended portions payable under the homestead allowance, exempt property, and family allowance to the trust established under AS 13.12.212(b).
An individual 18 or more years of age who is of sound mind may make a will.
(a) Except as provided in (b) of this section, AS 13.06.068, AS 13.12.506, and 13.12.513, a will must be (1) in writing; (2) signed by the testator or in the testator's name by another individual in the testator's conscious presence and by the testator's direction; and (3) signed by at least two individuals, each of whom signs within a reasonable time after the witness witnesses either the signing of the will as described in (2) of this subsection or the testator's acknowledgment of that signature or the will. (b) Except as provided in AS 13.06.068, a will that does not comply with (a) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
(a) A will may be simultaneously executed, attested, and made self-proved, by acknowledgment of the will by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:I, __________________________________, the testator, sign my name to this instrument this __________ day of _____, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes expressed in the will, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.TestatorWe, __________________________________, __________________________________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator's will and that the testator signs it willingly (or willingly directs another to sign for the testator), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence. WitnessState of _______________________________________________________________________________________ Judicial DistrictSubscribed, sworn to, and acknowledged before me by __________________________________, the testator, and subscribed and sworn to before me by __________________________________, and __________________________________, witness, this __________ day of _____.(Seal)(Signed) (Official capacity of officer) (b) An attested will may be made self-proved at any time after its execution by the acknowledgment of the will by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the following form:State of _______________________________________________________________________________________ Judicial DistrictWe, __________________________________, __________________________________, and __________________________________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that the testator had signed willingly (or willingly directed another to sign for the testator), and that the testator executed it as the testator's free and voluntary act for the purposes expressed in the will, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of the witnesses' knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence. TestatorWitnessSubscribed, sworn to and acknowledged before me by __________________________________, the testator, and subscribed and sworn to before me by __________________________________, and __________________________________, witnesses, this __________ day of _____.(Seal)(Signed) (Official capacity of officer) (c) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will's due execution.
(a) An individual generally competent to be a witness may act as a witness to a will. (b) The signing of a will by an interested witness does not invalidate the will or a provision of it.
Except as provided by AS 13.06.068, a written will is valid if executed in compliance with AS 13.12.502 or if its execution complies with the law at the time of execution of the place where the will is executed or of the law of the place where, at the time of execution or at the time of death, the testator is domiciled, has a place of abode, or is a national.
(a) A will or a part of a will is revoked (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or (2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part of the will or if another individual performed the act in the testator's conscious presence and by the testator's direction; in this paragraph, revocatory act on the will includes burning, tearing, canceling, obliterating, or destroying the will or any part of it; a revocatory act on the will includes a burning, tearing, or canceling whether or not the burn, tear, or cancellation touched any of the words on the will. (b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. (c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death. (d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.
Except as provided in AS 13.12.803 and 13.12.804, a change of circumstances does not revoke a will or a part of it.
(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under AS 13.12.507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed. (b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under AS 13.12.507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed. (c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
(a) A will may validly devise property to the trustee of a trust established or to be established (1) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts; or (2) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set out in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. (b) A devise under (a) of this section is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (c) Unless the testator's will provides otherwise, property devised to a trust described in (a) - (b) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and must be administered and disposed of in accordance with the provisions of the governing instrument setting out the terms of the trust, including any amendments to the trust made before or after the testator's death. (d) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise to lapse.
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is an event covered by this section.
Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that does not have significance apart from its effect on the dispositions made by the will.
(a) A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after January 1, 1997, may be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. (b) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
A will may be deposited by the testator or the testator's agent with a court for safekeeping, under rules of the court. During the testator's lifetime, the will must be kept confidential. During the testator's lifetime, a deposited will shall be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be kept confidential and on deposit after the examination.
After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and, if the person with custody does not know of a person able to secure the will's probate, to an appropriate court. A person who wilfully fails to deliver a will is liable to a person aggrieved for any damages that may be sustained by the failure. A person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.
A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
A testator, a person who is nominated in a will to serve as a personal representative, or, with the testator's consent, an interested party may petition the court to determine before the testator's death that the will is a valid will subject only to subsequent revocation or modification.
If at least one of the trustees of a trust is a qualified person, the settlor or a trustee of the trust may petition the court to determine before the settlor's death that the trust is valid and enforceable under its terms, subject only to a subsequent revocation or modification of the trust.
(a) The venue for a petition under AS 13.12.530 is (1) the judicial district of this state where the testator is domiciled; or (2) if the person who executed the will is not domiciled in this state, any judicial district of this state. (b) The venue for a petition under AS 13.12.535 is the judicial district where the trust is registered. The venue for proceedings involving a trust that is not registered in this state is (1) any place in this state where the trust could have been properly registered; or (2) the location established by the rules of court.
A petition under AS 13.12.530 must contain (1) a statement that a copy of the will has been filed with the court; (2) a statement that the will is in writing; (3) a statement that the will was signed by the testator, or was signed in the testator's name by another person in the testator's conscious presence and at the testator's direction; (4) in the case of a witnessed will, a statement that the will was signed by at least two individuals, each of whom signed within a reasonable time after witnessing the signing of the will or the testator's acknowledgment of the signature on the will; (5) in the case of a holographic will, a statement that the signature and material portions of the will are in the testator's handwriting; (6) a statement that the will was executed with testamentary intent; (7) a statement that the testator had testamentary capacity; (8) a statement that the testator was free from undue influence and duress and executed the will in the exercise of the testator's free will; (9) a statement that the execution of the will was not the result of fraud or mistake; (10) the names and addresses of the testator, the testator's spouse, the testator's children, the testator's heirs, the personal representatives nominated in the will, and the devisees under the will; (11) if minors, the ages of the testator's children, the testator's heirs, and the devisees under the will, as far as known or ascertainable with reasonable diligence by the petitioner; (12) a statement that the will has not been revoked or modified; and (13) a statement that the testator is familiar with the contents of the will.
(a) A petition for trust validity under AS 13.12.535 must contain (1) a statement that a copy of the trust has been filed with the court; (2) a statement that the trust is in writing and was signed by the settlor; (3) a statement that the trust was executed with the intent that it be enforceable in accordance with its terms; (4) a statement that the settlor had the legal capacity to enter into and establish the trust; (5) a statement that the settlor was free from undue influence and duress and executed the trust in the exercise of free will; (6) a statement that execution of the trust was not the result of fraud or mistake; (7) the names and addresses of the settlor, the settlor's spouse, the settlor's children, the settlor's heirs, and the parties in interest; (8) the ages of the settlor's children, the settlor's heirs, and the parties in interest who are minors so far as known or ascertainable with reasonable diligence by the petitioner; (9) a statement that the trust has not been revoked or modified; and (10) a statement that the settlor is familiar with the contents of the trust. (b) In this section, party in interest has the meaning given in AS 13.36.390.
The court may declare a will or trust to be valid and make other findings of fact and conclusions of law that are appropriate under the circumstances. After the testator's death, unless the will is modified or revoked after the declaration, the will has full legal effect as the instrument of the disposition of the testator's estate and shall be admitted to probate upon request.
A person, whether the person is known, unknown, born, or not born at the time of a proceeding under AS 13.12.530 - 13.12.590, including a person who is represented by another person under AS 13.06.120, is bound by the declaration under AS 13.12.555 even if, by the time of the testator's death, the representing person has died or would no longer be able to represent the person represented in the proceeding under AS 13.12.530 - 13.12.590.
(a) After the petition under AS 13.12.530 or 13.12.535 is filed, the court shall fix a time and place for a hearing. The petitioner shall notify the spouse, the children, and the heirs of the testator or settlor in the manner established by AS 13.06.110. (b) In addition to the notice required by (a) of this section, in proceedings involving a petition under AS 13.12.530, the petitioner shall notify the testator, the personal representatives nominated in the will, and the devisees under the will in the manner established by AS 13.06.110. (c) In addition to the notice required by (a) of this section, in proceedings involving a petition under AS 13.12.535, the petitioner shall notify the settlor and the parties in interest in the manner established by AS 13.06.110. Notice may be given to other persons. In this subsection, party in interest has the meaning given in AS 13.36.390.
A petitioner under AS 13.12.530 or 13.12.535 has the burden of establishing prima facie proof of the execution of the will or trust. A person who opposes the petition has the burden of establishing the lack of testamentary intent, lack of capacity, undue influence, fraud, duress, mistake, or revocation. A party to the proceeding has the ultimate burden of persuasion as to the matters for which the party has the initial burden of proof.
After a declaration of the validity of a will under AS 13.12.555, a testator may modify a will by a later will or codicil executed according to the laws of this state or another state, and the will may be revoked or modified under AS 13.12.507, 13.12.508, or another applicable law.
After a declaration of validity under AS 13.12.555, a trust may be modified, terminated, revoked, or reformed under AS 13.36.340 - 13.36.365, or another applicable law.
(a) A notice of the filing of a petition under AS 13.12.530 - 13.12.580, a summary of all formal proceedings under AS 13.12.530 - 13.12.580, and a dispositional order or a modification or termination of a dispositional order relating to a proceeding under AS 13.12.530 - 13.12.580 shall be available for public inspection. Except as provided in (b) and (c) of this section, all other information contained in the court records relating to a proceeding under AS 13.12.530 - 13.12.580 is confidential. (b) The records that are confidential under (a) of this section may be made available to (1) the petitioner and the petitioner's attorney; (2) interested persons who have appeared in the proceedings, interested persons who have otherwise submitted to the jurisdiction of the court, and the attorneys, guardians, and conservators of the interested persons; (3) the judge hearing or reviewing the matter; and (4) a member of the clerical or administrative staff of the court if access is essential for authorized internal administrative purposes. (c) For good cause shown, the court may order the records that are confidential under (a) of this section to be made available to a person who is not listed in (b) of this section.
In AS 13.12.530 - 13.12.590, (1) qualified person has the meaning given in AS 13.36.390; (2) testator means a person who executes a will as a testator; (3) trust means a revocable or irrevocable trust.
Except as provided in AS 13.06.068, in the absence of a finding of a contrary intention, the rules of construction in AS 13.12.601 - 13.12.609 control the construction of a will.
A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death.
(a) If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will, the following apply: (1) except as provided in (4) of this subsection, if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants; the surviving descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator; (2) except as provided in (4) of this subsection, if the devise is in the form of a class gift, other than a devise to issue, descendants, heirs of the body, heirs, next of kin, relatives, or family, or a class described by language of similar import, a substitute gift is created in the surviving descendants of a deceased devisee; the property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees; each surviving devisee takes the share to which the surviving devisee would have been entitled had the deceased devisees survived the testator; each deceased devisee's surviving descendants who are substituted for the deceased devisee take by representation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator; (3) for the purposes of AS 13.12.601, words of survivorship, as in a devise to an individual if the individual survives me, or in a devise to my surviving children, are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section; (4) if the will creates an alternative devise with respect to a devise for which a substitute gift is created by (1) or (2) of this subsection, the substitute gift is superseded by the alternative devise only if an expressly designated devisee of the alternative devise is entitled to take under the will; (5) unless the language creating a power of appointment expressly excludes the substitution of the descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be substituted for the appointee under this section, whether or not the descendant is an object of the power. (b) If, under (a) of this section, substitute gifts are created and not superseded with respect to more than one devise and the devises are alternative devises, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows: (1) except as provided in (2) of this subsection, the devised property passes under the primary substitute gift; (2) if there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift. (c) [Repealed,  103 ch 13 SLA 2019.] (d) In this section, (1) alternative devise means a devise that is expressly created by the will and, under the terms of the will, can take effect instead of another devise on the happening of one or more events, including survival of the testator or failure to survive the testator, whether an event is expressed in condition-precedent, condition-subsequent, or other form; a residuary clause constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general, pass under the residuary clause; (2) class member includes an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had the individual survived the testator; (3) deceased devisee means a class member who failed to survive the testator and left one or more surviving descendants; (4) devise includes an alternative devise, a devise in the form of a class gift, and an exercise of a power of appointment; (5) devisee includes (A) a class member if the devise is in the form of a class gift; (B) an individual or class member who was deceased at the time the testator executed the testator's will as well as an individual or class member who was then living but who failed to survive the testator; and (C) an appointee under a power of appointment exercised by the testator's will; (6) primary devise means the devise that would have taken effect had all the deceased devisees of the alternative devises who left surviving descendants survived the testator; (7) primary substitute gift means the substitute gift created with respect to a primary devise; (8) stepchild means a child of the surviving, deceased, or former spouse of the testator or of the donor of a power of appointment, and not of the testator or donor; (9) surviving devisee or surviving descendant means a devisee or a descendant who neither predeceases the testator nor is considered to have predeceased the testator under AS 13.12.702; (10) testator includes the donee of a power of appointment if the power is exercised in the testator's will; (11) younger-generation devise means a devise that (A) is to a descendant of a devisee of a primary devise; (B) is an alternative devise with respect to the primary devise; (C) is a devise for which a substitute gift is created; and (D) would have taken effect had all the deceased devisees who left surviving descendants survived the testator except the deceased devisee or devisees of the primary devise; (12) younger-generation substitute gift means a substitute gift created with respect to a younger-generation devise.
(a) Except as provided in AS 13.12.603, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue. (b) Except as provided in AS 13.12.603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.
(a) If a testator executes a will that devises securities and the testator then owned securities that meet the description in the will, the devise includes additional securities that are owned by the testator at death to the extent the additional securities were acquired by the testator after the will was executed as a result of the testator's ownership of the described securities and that are securities of (1) the same organization acquired by reason of action initiated by the organization or a successor, related, or acquiring organization, excluding securities acquired by exercise of purchase options; (2) another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or a successor, related, or acquiring organization; or (3) the same organization acquired as a result of a plan of reinvestment. (b) Distributions in cash before death with respect to a described security are not part of the devise.
(a) A specific devisee has a right to the specifically devised property in the testator's estate at death and (1) any amount of a condemnation award for the taking of the property unpaid at death; (2) any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property; and (3) property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for the specifically devised obligation. (b) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property are paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. (c) The right of a specific devisee under (b) of this section is reduced by any right the devisee has under (a) of this section. (d) For the purposes of the references in (b) of this section to a conservator, (b) of this section does not apply if after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator's incapacity ceased and the testator survived the adjudication by one year. (e) For the purposes of the references in (b) of this section to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (1) incapacitated principal means a principal who is an incapacitated person; (2) adjudication of incapacity before death is not necessary; and (3) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.
A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
In the absence of a requirement that a power of appointment be exercised by a reference, or by an express or specific reference, to the power, a general residuary clause in a will, or a will making general disposition of all of the testator's property, expresses an intention to exercise a power of appointment held by the testator only if (1) the power is a general power and the creating instrument does not contain a gift if the power is not exercised; or (2) the testator's will manifests an intention to include the property subject to the power.
(a) Property a testator gave in the testator's lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if (1) the will provides for deduction of the gift; (2) the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise; or (3) the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise. (b) For purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator's death, whichever occurs first. (c) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying AS 13.12.603 and 13.12.604, unless the testator's contemporaneous writing provides otherwise.
In the absence of a finding of a contrary intention, the rules of construction in AS 13.12.701 - 13.12.711 control the construction of a governing instrument. The rules of construction in AS 13.12.701 - 13.12.711 apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type of provision or governing instrument.
(a) For the purposes of AS 13.06 - AS 13.36, except as provided in (d) of this section, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is considered to have predeceased the event. (b) Except as provided in (d) of this section, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by 120 hours is considered to have predeceased the event. (c) Except as provided in (d) of this section, if it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours, and if there are more than two co-owners with right of survivorship and it is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the proportion that one bears to the whole number of co-owners. In this subsection, co-owners with right of survivorship includes joint tenants, tenants by the entirety, and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others. (d) Survival by 120 hours is not required if (1) the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case; (2) the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by a specified period or expressly requires the individual to survive the event by a specified period, but survival of the event or the specified period must be established by clear and convincing evidence; (3) the imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under AS 34.27.051 or 34.27.100 or to become invalid under AS 34.27.051 or 34.27.100, but survival must be established by clear and convincing evidence; or (4) the application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition, but survival must be established by clear and convincing evidence. (e) A payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken other action in good faith reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party receives written notice of a claimed lack of entitlement under this section. A payor or other third party is liable for a payment made or other action taken after the payor or other third party receives written notice of a claimed lack of entitlement under this section. (f) Written notice of a claimed lack of entitlement under this section shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this section, a payor or other third party may pay any amount owed or transfer or deposit an item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if proceedings have not been commenced, to or with the court in the judicial district of the decedent's residence. The court shall hold the funds or item of property and, upon the court's determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court. (g) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this section to return the payment, item of property, or benefit or liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (h) If this section or a part of this section is preempted by federal law with respect to a payment, an item of property, or other benefit covered by this section, a person who, not for value, receives the payment, item of property, or benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it if this section or part of this section were not preempted.
(a) The meaning and legal effect of a governing instrument is determined by the local law of the state selected in the governing instrument, unless the application of that law is contrary to the provisions relating to the elective share described in AS 13.12.201 - 13.12.214, the provisions relating to exempt property and allowances described in AS 13.12.401 - 13.12.405, or other public policy of this state otherwise applicable to the disposition. (b) The provisions of (a) of this section are subject to AS 13.06.068.
If a governing instrument creating a power of appointment expressly requires that the power be exercised by a reference, an express reference, or a specific reference, to the power or its source, it is presumed that the donor's intention, in requiring that the donee exercise the power by making reference to the particular power or to the creating instrument, was to prevent an inadvertent exercise of the power.
(a) Adopted individuals and individuals born out of wedlock, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship that do not differentiate relationships by blood from those by affinity, such as uncles, aunts, nieces, or nephews, are construed to exclude relatives by affinity. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces, or nephews, are construed to include both types of relationships. (b) In addition to the requirements of (a) of this section, in construing a dispositive provision of a transferor who is not the natural parent, an individual born to the natural parent is not considered the child of that natural parent unless the individual lived while a minor as a regular member of the household of that natural parent or of that natural parent's parent, brother, sister, spouse, or surviving spouse. (c) In addition to the requirements of (a) of this section, in construing a dispositive provision of a transferor who is not the adopting parent, an adopted individual is not considered the child of the adopting parent unless the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent.
(a) If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a grandparent, or a stepchild of the decedent, the following apply: (1) except as provided in (4) of this subsection, if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary's surviving descendants; the beneficiary's surviving descendants take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent; (2) except as provided in (4) of this subsection, if the beneficiary designation is in the form of a class gift, other than a beneficiary designation to issue, descendants, heirs of the body, heirs, next of kin, relatives, or family, or a class described by language of similar import, a substitute gift is created in the surviving descendants of a deceased beneficiary; the property to which the beneficiaries would have been entitled had all of them survived the decedent passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries; each surviving beneficiary takes the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the decedent; each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent; in this paragraph, deceased beneficiary means a class member who failed to survive the decedent and left one or more surviving descendants; (3) for the purposes of AS 13.12.701, words of survivorship, as in a beneficiary designation to an individual if the individual survives me, or in a beneficiary designation to my surviving children, are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section; (4) if a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by (1) or (2) of this subsection, the substitute gift is superseded by the alternative beneficiary designation only if an expressly designated beneficiary of the alternative beneficiary designation is entitled to take. (b) If, under (a) of this section, substitute gifts are created and not superseded with respect to more than one beneficiary designation and the beneficiary designations are alternative beneficiary designations, one to the other, the property passes under the primary substitute gift, except that if there is a younger-generation beneficiary designation, the property passes under the younger-generation substitute gift and not under the primary substitute gift. In this subsection, (1) primary beneficiary designation means the beneficiary designation that would have taken effect had all the deceased beneficiaries of the alternative beneficiary designations who left surviving descendants survived the decedent; (2) primary substitute gift means the substitute gift created with respect to the primary beneficiary designation; (3) younger-generation beneficiary designation means a beneficiary designation that (A) is to a descendant of a beneficiary of the primary beneficiary designation; (B) is an alternative beneficiary designation with respect to the primary beneficiary designation; (C) is a beneficiary designation for which a substitute gift is created; and (D) would have taken effect had all the deceased beneficiaries who left surviving descendants survived the decedent except the deceased beneficiary or beneficiaries of the primary beneficiary designation; (4) younger-generation substitute gift means the substitute gift created with respect to the younger-generation beneficiary designation. (c) A payor is protected from liability in making payments under the terms of the beneficiary designation until the payor has received written notice of a claim to a substitute gift under this section. Payment made before the receipt of written notice of a claim to a substitute gift under this section discharges the payor, but not the recipient, from all claims for the amounts paid. A payor is liable for a payment made after the payor has received written notice of the claim. A recipient is liable for a payment received, whether or not written notice of the claim is given. (d) In (c) of this section, the written notice of the claim shall be mailed to the payor's main office or home by registered or certified mail, return receipt requested, or served upon the payor in the same manner as a summons in a civil action. Upon receipt of written notice of the claim, a payor may pay any amount owed by it to the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if proceedings have not been commenced, to the court in the judicial district of the decedent's residence. The court shall hold the funds and, upon its determination under this section, shall order disbursement in accordance with the determination. Payment made to the court discharges the payor from all claims for the amounts paid. (e) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this section to return the payment, item of property, or benefit, or liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (f) If this section or a part of this section is preempted by federal law with respect to a payment, an item of property, or other benefit covered by this section, a person who, not for value, receives the payment, item of property, or other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it if this section or part of this section were not preempted. (g) In this section, (1) alternative beneficiary designation means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can take effect instead of another beneficiary designation on the happening of one or more events, including survival of the decedent or failure to survive the decedent, whether an event is expressed in condition-precedent, condition-subsequent, or another form; (2) beneficiary means the beneficiary of a beneficiary designation under which the beneficiary must survive the decedent and (A) includes a class member if the beneficiary designation is in the form of a class gift; (B) includes an individual or class member who was deceased at the time the beneficiary designation was executed as well as an individual or class member who was then living but who failed to survive the decedent; (C) excludes a joint tenant of a joint tenancy with the right of survivorship and a party to a joint and survivorship account; (3) beneficiary designation includes an alternative beneficiary designation and a beneficiary designation in the form of a class gift; (4) class member includes an individual who fails to survive the decedent but who would have taken under a beneficiary designation in the form of a class gift had the individual survived the decedent; (5) stepchild means a child of the decedent's surviving, deceased, or former spouse, and not of the decedent; (6) surviving beneficiary or surviving descendant means a beneficiary or a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent under AS 13.12.702.
(a) A future interest under the terms of a trust is contingent on the beneficiary's surviving the distribution date. If a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, the following apply: (1) except as provided in (4) of this subsection, if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary's surviving descendants; the beneficiary's surviving descendants take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date; (2) except as provided in (4) of this subsection, if the future interest is in the form of a class gift, other than a future interest to issue, descendants, heirs of the body, heirs, next of kin, relatives, or family, or a class described by language of similar import, a substitute gift is created in the surviving descendants of a deceased beneficiary; the property to which the beneficiaries would have been entitled had all of them survived the distribution date passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries; each surviving beneficiary takes the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the distribution date; each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date; in this paragraph, deceased beneficiary means a class member who fails to survive the distribution date and leaves one or more surviving descendants; (3) for the purposes of AS 13.12.701, words of survivorship attached to a future interest are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section; words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or another form; (4) if a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by (1) or (2) of this subsection, the substitute gift is superseded by the alternative future interest only if an expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment. (b) If, under (a) of this section, substitute gifts are created and not superseded with respect to more than one future interest and the future interests are alternative future interests, one to the other, the property passes under the primary substitute gift, except that, if there is a younger-generation future interest, the property passes under the younger-generation substitute gift and not under the primary substitute gift. In this subsection, (1) primary future interest means the future interest that would have taken effect had all the deceased beneficiaries of the alternative future interests who left surviving descendants survived the distribution date; (2) primary substitute gift means the substitute gift created with respect to the primary future interest; (3) younger-generation future interest means a future interest that (A) is to a descendant of a beneficiary of the primary future interest; (B) is an alternative future interest with respect to the primary future interest; (C) is a future interest for which a substitute gift is created; and (D) would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary of the primary future interest; (4) younger-generation substitute gift means the substitute gift created with respect to the younger-generation future interest. (c) Except as provided in (d) of this section, if, after the application of (a) and (b) of this section, there is not a surviving taker, the property passes in the following order: (1) if the trust was created in a nonresiduary devise in the transferor's will or in a codicil to the transferor's will, the property passes under the residuary clause in the transferor's will; for purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust; (2) if a taker is not produced by the application of (1) of this subsection, the property passes to the transferor's heirs under AS 13.12.711. (d) If, after the application of (a) and (b) of this section, there is not a surviving taker and if the future interest was created by the exercise of a power of appointment, (1) the property passes under the donor's gift-in-default clause, if any, and the clause is treated as creating a future interest under the terms of a trust; and (2) if a taker is not produced by the application of (1) of this subsection, the property passes as provided in (c) of this section. (e) In (c) of this section, transferor means the donor if the power was a nongeneral power and means the donee if the power was a general power. (f) In this section, (1) alternative future interest means an expressly created future interest that can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or other form; a residuary clause in a will does not create an alternative future interest with respect to a future interest created in a nonresiduary devise in the will, whether or not the will specifically provides that lapsed or failed devises are to pass under the residuary clause; (2) beneficiary means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift; (3) class member includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had the individual survived the distribution date; (4) distribution date, with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment; the distribution date does not need to occur at the beginning or end of a calendar day, but can occur at a time during the course of a day; (5) future interest includes an alternative future interest and a future interest in the form of a class gift; (6) future interest under the terms of a trust means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust; (7) surviving beneficiary or surviving descendant means a beneficiary or a descendant who neither predeceased the distribution date nor is considered to have predeceased the distribution date under AS 13.12.702.
If a class gift in favor of descendants, issue, or heirs of the body does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment, in such shares as they would receive, under the applicable law of intestate succession, if the designated ancestor had then died intestate owning the subject matter of the class gift.
(a) If an applicable statute or a governing instrument calls for property to be distributed by representation or per capita at each generation, the property is divided into as many equal shares as there are (1) surviving descendants in the generation nearest to the designated ancestor that contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. (b) In (a) of this section, each surviving descendant in the nearest generation is allocated one share, and the remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date. (c) If a governing instrument calls for property to be distributed per stirpes, the property is divided into as many equal shares as there are (1) surviving children of the designated ancestor; and (2) deceased children who left surviving descendants. (d) In (c) of this section, each surviving child, if any, is allocated one share, and the share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants. (e) For the purposes of (a) - (d) of this section, an individual who is deceased and does not leave surviving descendants is disregarded, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is not entitled to a share. (f) In this section, (1) deceased child or deceased descendant means a child or a descendant who either predeceased the distribution date or is considered to have predeceased the distribution date under AS 13.12.702; (2) distribution date, with respect to an interest, means the time when the interest is to take effect in possession or enjoyment; the distribution date does not need to occur at the beginning or end of a calendar day, but can occur at a time during the course of a day; (3) surviving ancestor, surviving child, or surviving descendant means an ancestor, a child, or a descendant who neither predeceased the distribution date nor is considered to have predeceased the distribution date under AS 13.12.702.
The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor's heirs, heirs at law, next of kin, distributees, relatives, or family, or language of similar import, does not create or presumptively create a reversionary interest in the transferor.
If an applicable statute or a governing instrument calls for a present or future distribution to or creates a present or future interest in a designated individual's heirs, heirs at law, next of kin, relatives, or family, or language of similar import, the property passes to those persons, including the state, and in such shares as would succeed to the designated individual's intestate estate under the intestate succession law of the designated individual's domicile if the designated individual died when the disposition is to take effect in possession or enjoyment. If the designated individual's surviving spouse is living but is remarried at the time the disposition is to take effect in possession or enjoyment, the surviving spouse is not an heir of the designated individual.
(a) Unless the trust provides otherwise, a beneficiary of a trust has a right to property that, by the terms of the trust, is to be specifically distributed to the beneficiary and to (1) any amount of a condemnation award that is for the taking of the property and that is unpaid when the distribution becomes effective; (2) any proceeds from fire or casualty insurance on, or other recovery for injury to, the property that are unpaid when the distribution becomes effective; and (3) property owned by the settlor when the distribution becomes effective if the property is acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for the specifically distributed obligation. (b) Unless the covered trust provides otherwise, if property that is to be specifically distributed to a beneficiary of a covered trust is instead sold or mortgaged by a trustee of the covered trust, or if a condemnation award, insurance proceeds, or a recovery for injury to the property is paid to a trustee of the covered trust, the beneficiary has the right to a general pecuniary property distribution that is equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. In this subsection, covered trust, means a trust that was originally amendable or revocable by the settlor but that cannot be amended or revoked by the settlor because of the settlor's incapacity. (c) The right of a beneficiary under (b) of this section is reduced by any right the beneficiary has under (a) of this section. (d) [Repealed,  3 ch 36 SLA 2001.]  (e) [Repealed,  3 ch 36 SLA 2001.] 
(a) If an individual includes a provision in a will, trust document, or beneficiary designation that is designed to reduce federal estate tax liability to zero, or to the lowest possible amount payable, by describing a portion or amount measured by reference to the unified credit, applicable exclusion amount, or exemption equivalent under 26 U.S.C. 2010 (Internal Revenue Code), or to other credits or deductions under 26 U.S.C. (Internal Revenue Code), then unless specifically stated otherwise, the reference to the unified credit, applicable exclusion amount, exemption equivalent, other credit, or other deduction shall be considered to include a reference to the family-owned business deduction available and allowed under 26 U.S.C. 2057 (Internal Revenue Code). (b) Unless specifically stated otherwise, the reference in the will, trust document, or beneficiary designation to the unified credit, applicable exclusion amount, exemption equivalent, family-owned business deduction, other credit, or other deduction shall be considered to refer to the unified credit, applicable exclusion amount, exemption equivalent, family-owned business deduction, other credit, or other deduction as it exists at the time of death of the individual.
(a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section. (b) In AS 13.12.101 - 13.12.405 and AS 13.16.065, a surviving spouse does not include (1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, if the decree or judgment is not recognized as valid in this state, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife; (2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or (3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
(a) An individual who feloniously kills the decedent forfeits all benefits under this chapter with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed the killer's intestate share. (b) The felonious killing of the decedent (1) revokes a revocable (A) disposition or appointment of property made by the decedent to the killer in a governing instrument; (B) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer; and (C) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and (2) severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. (c) A severance under (b)(2) of this section does not affect a third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records that are appropriate to the kind and location of the property and that are relied upon, in the ordinary course of transactions involving the type of property, as evidence of ownership. (d) Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. (e) A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer may not profit from the killer's wrong. (f) After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious killing of the decedent conclusively establishes the convicted individual as the decedent's killer for purposes of this section. In the absence of a conviction, the court, upon the petition of an interested person, shall determine whether, under the preponderance of evidence standard, the individual would be found criminally accountable for the felonious killing of the decedent. If the court determines that, under that standard, the individual would be found criminally accountable for the felonious killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section. (g) A payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken other action in good faith reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice of a claimed forfeiture or revocation under this section. A payor or other third party is liable for a payment made or other action taken after the payor or other third party receives written notice of a claimed forfeiture or revocation under this section. (h) Written notice of a claimed forfeiture or revocation under (g) of this section shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payor or other third party may pay an amount owed or transfer or deposit an item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if proceedings have not been commenced, to or with the court in the judicial district of the decedent's residence. The court shall hold the funds or item of property and, upon the court's determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court. (i) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this section to return the payment, item of property, or benefit, or liable under this section for the amount of the payment or the value of the item of property or benefit. However a person who, not for value, receives a payment, an item of property, or other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (j) If this section or part of this section is preempted by federal law with respect to a payment, an item of property, or other benefit covered by this section, a person who, not for value, receives the payment, item of property, or other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it if this section or part of this section were not preempted. (k) In the case of an unintentional felonious killing, a court may set aside the application of (a), (b), (d), or (e) of this section if the court makes special findings of fact and conclusions of law that the application of the subsection would result in a manifest injustice and that the subsection should not be applied. (l) In this section, (1) disposition or appointment of property includes a transfer of an item of property or other benefit to a beneficiary designated in a governing instrument; (2) governing instrument means a governing instrument executed by the decedent; (3) revocable, with respect to a disposition, appointment, provision, or nomination, means a disposition, appointment, provision, or nomination under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate the decedent in place of the decedent's killer or the decedent then had capacity to exercise the power.
(a) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage (1) revokes a revocable (A) disposition or appointment of property made by a divorced individual to the divorced individual's former spouse in a governing instrument and a disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse; (B) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse; and (C) nomination in a governing instrument, nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in a fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and (2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of the former spouses into tenancies in common. (b) A severance under (a)(2) of this section does not affect a third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property that are relied upon, in the ordinary course of transactions involving that kind of property, as evidence of ownership. (c) Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. (d) Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment. (e) A change of circumstances other than as described in this section and in AS 13.12.803 does not effect a revocation. (f) A payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of the divorce, annulment, or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party receives written notice of a claimed forfeiture or revocation under this section. (g) Written notice of the divorce, annulment, or remarriage under (f) of this section shall be mailed to the payor's or other third-party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if proceedings have not been commenced, to or with the court located in the judicial district of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court. (h) A person who purchases property from a former spouse, relative of a former spouse, or another person for value and without notice, or who receives from a former spouse, relative of a former spouse, or another person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this section to return the payment, an item of property, or benefit, or liable under this section for the amount of the payment or the value of the item of property or benefit. However, a former spouse, relative of a former spouse, or other person who, not for value, receives a payment, an item of property, or other benefit to which that person is not entitled under this section is obligated to return the payment, an item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (i) If this section or a part of this section is preempted by federal law with respect to a payment, an item of property, or other benefit covered by this section, a former spouse, relative of the former spouse, or another person who, not for value, received a payment, an item of property, or other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it if this section or part of this section were not preempted. (j) In this section, (1) disposition or appointment of property includes a transfer of an item of property or other benefit to a beneficiary designated in a governing instrument; (2) divorce or annulment means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of AS 13.12.802; a decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section; (3) divorced individual includes an individual whose marriage has been annulled; (4) governing instrument means a governing instrument executed by the divorced individual before the divorce or annulment of the divorced individual's marriage to the divorced individual's former spouse; (5) relative of the divorced individual's former spouse means an individual who is related to the divorced individual's former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity; (6) revocable, with respect to a disposition, appointment, provision, or nomination, means a disposition, appointment, provision, or nomination under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the divorced individual's former spouse or former spouse's relative, whether or not the divorced individual was then empowered to designate the divorced individual in place of the divorced individual's former spouse or in place of the divorced individual's former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power.
The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the property are subject to the restrictions and limitations contained in AS 13.06 - AS 13.36 to facilitate the prompt settlement of estates. Upon the death of a person, that person's real and personal property devolves to the persons to whom it is devised by the last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to the heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.
Except as provided in AS 13.16.680, to be effective to prove the transfer of property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the registrar or by an adjudication of probate by the court.
Except as otherwise provided in AS 13.21, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or registrar, qualify, and be issued letters. Administration of an estate is commenced by the issuance of letters.
A proceeding to enforce a claim against the estate of a decedent or the decedent's successors may not be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this chapter. After distribution a creditor whose claim has not been barred may recover from the distributees as provided in AS 13.16.635 or from a former personal representative individually liable as provided in AS 13.16.640. This section has no application to a proceeding by a secured creditor of the decedent to enforce a right to the security except as to any deficiency judgment that might be sought in the proceeding.
Persons interested in decedents' estates may apply to the registrar for determination in the informal proceedings provided in this chapter, and may petition the court for orders in formal proceedings within the court's jurisdiction including those described in this chapter. The court has exclusive jurisdiction of formal proceedings to determine how decedents' estates subject to the laws of this state are to be administered, expended, and distributed. The court has concurrent jurisdiction of any other action or proceeding concerning a succession or to which an estate, through a personal representative, may be a party, including actions to determine title to property alleged to belong to the estate, and of any action or proceeding in which property distributed by a personal representative or its value is sought to be subjected to rights of creditors or successors of the decedent.
In proceedings within the exclusive jurisdiction of the court where notice is required by AS 13.06 - AS 13.36 or by rule, and in proceedings to construe probated wills or determine heirs which proceedings concern estates that have not been and cannot at the time of these proceedings be opened for administration, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this state by notice in conformity with AS 13.06.110. An order is binding as to all who are given notice of the proceeding though fewer than all interested persons are notified.
Unless supervised administration as described in AS 13.16.215 - 13.16.235 is involved, (1) each proceeding before the court or registrar is independent of any other proceeding involving the same estate; (2) petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay; except as required for proceedings that are particularly described by other sections of this chapter, no petition is defective because it fails to embrace all matters that might then be the subject of a final order; (3) proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives; and (4) a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.
(a) An informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may not be commenced more than three years after the decedent's death, except (1) if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time after the dismissal upon a finding that the decedent's death occurred before the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding; (2) appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; (3) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of 12 months from the informal probate or three years from the decedent's death; (4) an informal appointment or a formal testacy or appointment proceeding may be commenced after the three years if proceedings concerning the succession or estate administration have not occurred within the three-year period after the decedent's death, but the personal representative may not possess estate assets as provided in AS 13.16.380 beyond that necessary to confirm title to the assets in the successors to the estate and claims other than expenses of administration may not be presented against the estate; and (5) a formal testacy proceeding may be commenced at any time after three years from the decedent's death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent's death from a person other than the decedent when the property is to be appointed by the terms of the decedent's will or is to pass or be distributed as a part of the decedent's estate or its transfer is otherwise to be controlled by the terms of the decedent's will. (b) The limitations in (a) of this section do not apply to proceedings to construe probated wills or determine heirs of an intestate. (c) In cases under (a)(1) or (2) of this section, the date on which a testacy or appointment proceeding is properly commenced is considered to be the date of the decedent's death for purposes of other limitations provisions of AS 13.06 - AS 13.36 that relate to the date of death.
No statute of limitation running on a cause of action belonging to a decedent that had not been barred as of the date of death shall apply to bar a cause of action surviving the decedent's death sooner than four months after death. A cause of action that, but for this section, would have been barred less than four months after death, is barred after four months unless tolled.
(a) A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative except that no petition under this section may be entertained until the time for presenting claims that arose before the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs and adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person. (b) If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding constitutes prima facie proof of due execution of any will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.
A personal representative administering an estate under an informally probated will or any devisee under an informally probated will may petition for an order of settlement of the estate that will not adjudicate the testacy status of the decedent. The personal representative may petition at any time, and a devisee may petition after one year, from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims that arose before the death of the decedent has expired. The petition may request the court to consider the final account or compel or approve an accounting and distribution, to construe the will and adjudicate final settlement and distribution of the estate. After notice to all devisees and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate under the will, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any devisee who is a party to the proceeding and those the devisee represents. If it appears that a part of the estate is intestate, the proceedings shall be dismissed or amendments made to meet the provisions of AS 13.16.620.
(a) Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings, a personal representative may close an estate by filing with the court no earlier than six months after the date of original appointment of a general personal representative for the estate, a verified statement stating that the personal representative, or a prior personal representative, has (1) published notice to creditors as provided by AS 13.16.450 and that the first publication occurred more than six months before the date of the statement; (2) fully administered the estate of the decedent by making payment, settlement, or other disposition of all claims that were presented, expenses of administration and estate, inheritance, and other death taxes, except as specified in the statement, and that the assets of the estate have been distributed to the persons entitled; if any claims remain undischarged, the statement must state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or it must state in detail other arrangements that have been made to accommodate outstanding liabilities; and (3) sent a copy of it to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred and has furnished a full account in writing of the administration to the distributees whose interests are affected by it. (b) If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
After assets of an estate have been distributed and subject to AS 13.16.645, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. A distributee is not liable to claimants for amounts received as exempt property, homestead or family allowances, or for amounts in excess of the value of a distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who fails to notify other distributees of the demand made upon the distributee by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against the distributee loses the right of contribution against other distributees.
Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert them is commenced within six months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate.
Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value of it from any distributee is forever barred at the later of (1) three years after the decedent's death; or (2) one year after the time of distribution of it. This section does not bar an action to recover property or value received as the result of fraud.
After the appointment has terminated, the personal representative, the sureties of the personal representative, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the registrar that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.
If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the court orders otherwise, the provisions of AS 13.06 - AS 13.36 apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.
A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any governing instrument, the rights or interests in the estate of the decedent, of any successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties to the compromise including those unborn, unascertained or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it.
The procedure for securing court approval of a compromise is as follows: (1) the terms of the compromise shall be set out in an agreement in writing that shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims that will or may be affected by the compromise; execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained; (2) an interested person, including the personal representative, if any, or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives; (3) after notice to all interested persons or their representatives, including the personal representative of any estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries under its supervision to execute the agreement; minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise; upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.
(a) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that (1) the entire estate, wherever located, less liens and encumbrances, consists only of not more than (A) vehicles subject to registration under AS 28.10.011 with a total value that does not exceed $100,000; and (B) personal property, other than vehicles described in (A) of this paragraph, that does not exceed $50,000; (2) 30 days have elapsed since the death of the decedent; (3) no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and (4) the claiming successor is entitled to payment or delivery of the property. (b) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in (a) of this section.
The person paying, delivering, transferring, or issuing personal property or the evidence of it under affidavit is discharged and released to the same extent as if the person dealt with a personal representative of the decedent. The person is not required to see to the application of the personal property or evidence of it or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence of it, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled to it. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable for it to any personal representative of the estate or to any other person having a superior right.
If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled to it and file a closing statement as provided in AS 13.16.695.
(a) Unless prohibited by order of the court and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of AS 13.16.690 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that (1) to the best knowledge of the personal representative, the value of the entire estate, less liens and encumbrances, did not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable, necessary medical and hospital expenses of the last illness of the decedent; (2) the personal representative has fully administered the estate by disbursing and distributing it to the persons entitled to it; and (3) the personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred and has furnished a full account in writing of the administration to the distributees whose interests are affected. (b) If no action or proceeding involving the personal representative is pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates. (c) A closing statement filed under this section has the same effect as one filed under AS 13.16.630. (d) The superior court may authorize the disposal in a manner it prescribes of personal property which has not been disposed of under this section by the end of six months if no heirs or claimants have been located.
When a judge receives information that a person has died in the judge's judicial district leaving an estate with property limited to the property described under AS 13.16.680(a)(1) or less and no qualified person has appeared to take charge of the assets, the judge may immediately appoint a person, corporation, or attorney to settle the estate in the manner provided for in AS 13.16.680 - 13.16.695.
(a) The settlement common stock or other inalienable stock in a corporation organized under the laws of Alaska under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act) is not subject to probate nor shall its value be considered in determining the value of an estate or allowance under this title. Upon death of the holder, if the stock does not pass by the testamentary disposition clause on the stock certificate or by the form authorized under (b) of this section, properly executed, it passes by will or intestate succession. In such a case, the determination of the person entitled to the stock shall be made by the corporation that initially issued the stock or its designated agent. The determination shall be made on the basis of an affidavit, furnished to the corporation that initially issued the stock, or its agent, showing the right of the person entitled to the stock to receive it. The affidavit, accepted in good faith by the corporation or its agent, has the same effect as an affidavit under AS 13.16.685, and the person entitled to the stock, if the affidavit is not accepted, has the remedy set out in AS 13.16.685. In case of dispute as to the person entitled to receive the stock, a person claiming ownership may bring an independent action in the superior court. (b) Unless a separate form is provided that substantially satisfies the requirements of this subsection and that is distributed to the same extent as the certificate, each certificate representing the stock shall bear provisions, on its reverse side, containing blanks to be filled in by the owner, constituting a last will and testament for the purposes of this section and 43 U.S.C. 1606(h) insofar as the shares represented by that certificate are concerned. The clause may be signed by the owner, dated, and notarized. This testamentary disposition may be changed from time to time or revoked, and it governs unless there is a subsequently executed certificate, form, or formal will making specific disposition of the stock. (c) When ownership of stock passes by devise or inheritance or as a result of court action, the stock shall be partitioned, insofar as practicable, in whole shares among those entitled to them. (d) If a deceased shareholder has failed to dispose of the stock by will and has no heirs under the applicable laws of intestacy, the shares escheat to the corporation. (e) The situs of the stock is Alaska. (f) This section applies to stock as long as the stock remains inalienable. (g) Where appropriate, terms used in this section have the meanings given in AS 13.06.050. In this section, stock means the settlement common stock or other inalienable stock of a corporation organized under the laws of the state under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act), and includes membership in a corporation organized under AS 10.20 and inchoate rights to stock.
(a) Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is (1) in the judicial district where the decedent was domiciled at the time of death; or (2) if the decedent was not domiciled in this state, in any judicial district where (A) property of the decedent was located at the time of death; or (B) a fiduciary who is subject to the laws of this state and who comes into the control of property owned by the decedent at the time of death resides or has its principal place of business. (b) Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in AS 13.06.070 or (c) of this section. (c) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court. (d) For the purpose of aiding determinations concerning location of assets that may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.
If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this state, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this state must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding of this state.
(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order: (1) the person with priority as determined by a probated will, including a person nominated by a power conferred in a will; (2) the surviving spouse of the decedent who is a devisee of the decedent; (3) other devisees of the decedent; (4) the surviving spouse of the decedent; (5) other heirs of the decedent; (6) 45 days after the death of the decedent, any creditor. (b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in (a) of this section apply except that (1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person; (2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord, any suitable person. (c) A person entitled to letters under (a)(2) - (5) of this section, and a person aged 18 and over who would be entitled to letters but for the person's age, may nominate a qualified person to act as personal representative. Any person aged 18 and over may renounce the right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment. (d) Conservators of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment. (e) Appointment of one who does not have priority, including priority resulting from renunciation or nomination determined under this section, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary. (f) No person is qualified to serve as a personal representative who is (1) under the age of 19; (2) a person whom the court finds unsuitable in formal proceedings. (g) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative. (h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
Any person desiring notice of any order or filing pertaining to a decedent's estate in which the person has a financial or property interest, may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of the demandant's interest in the estate, and the demandant's address or that of the demandant's attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in AS 13.06.110 to the demandant or the demandant's attorney. The validity of an order that is issued or a filing that is accepted without compliance with this requirement is not affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of the demandant's interest in the estate.
(a) Applications for informal probate or informal appointment shall be directed to the registrar, and verified by the applicant to be accurate and complete to the best of the applicant's knowledge and belief as to the following information: (1) every application for informal probate of a will or for informal appointment of a personal representative other than a special or successor representative, must contain the following: (A) a statement of the interest of the applicant; (B) the name and age of the decedent, the date of death of the decedent, the judicial district and state of the decedent's domicile at the time of death, and the names and addresses of the spouse, children, heirs, and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant; (C) if the decedent was not domiciled in the state at the time of death, a statement showing venue; (D) a statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated; (E) a statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere; (F) a statement that the time limit for informal probate as provided in AS 13.16.080 - 13.16.130 has not expired either because three years or less have passed since the decedent's death, or, if more than three years from death have passed, that circumstances as described by AS 13.16.040 authorizing tardy probate or appointment have occurred; (2) an application for informal probate of a will must state the following in addition to the statements required by (1) of this subsection: (A) that the original of the decedent's last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application; (B) that the applicant, to the best of the applicant's knowledge, believes the will to have been validly executed; (C) that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument that is the subject of the application is the decedent's last will; (3) an application for informal appointment of a personal representative to administer an estate under a will must describe the will by date of execution and state the time and place of probate or the pending application or petition for probate; the application for appointment must adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought; (4) an application for informal appointment of an administrator in intestacy must state in addition to the statements required by (1) of this subsection: (A) that after the exercise of reasonable diligence the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under AS 13.06.060, or a statement why any such instrument of which the applicant may be aware is not being probated; (B) the priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under AS 13.16.065; (5) an application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status must refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant; (6) an application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in AS 13.16.290(c), or whose appointment has been terminated by death or removal, must adopt the statements in the application or petition that led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant. (b) By verifying an application for informal probate or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against the applicant.
Upon receipt of an application requesting informal probate of a will, the registrar, upon making the findings required by AS 13.16.090, shall issue a written statement of informal probate if at least 120 hours have elapsed since the decedent's death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating to it that leads to informal probate of a will renders the probate void.
(a) In an informal proceeding for original probate of a will, the registrar shall determine whether (1) the application is complete; (2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief; (3) the applicant appears from the application to be an interested person as defined in AS 13.06.050; (4) on the basis of the statements in the application, venue is proper; (5) an original, duly executed and apparently unrevoked will is in the registrar's possession; (6) any notice required by AS 13.16.070 has been given and that the application is not within AS 13.16.095; and (7) it appears from the application that the time limit for original probate has not expired. (b) The application shall be denied if it indicates that a personal representative has been appointed in another judicial district of this state or, except as provided in (d) of this section, if it appears that this or another will of the decedent has been the subject of a previous probate order. (c) A will that appears to have the required signatures and that contains an attestation clause showing that requirements of execution under AS 13.12.502 or 13.12.506 have been met shall be probated without further proof. In other cases, the registrar may assume execution if the will appears to have been properly executed, or the registrar may accept a sworn statement or affidavit of a person having knowledge of the circumstances of execution, whether or not the person was a witness to the will. (d) Informal probate of a will that has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated. (e) A will from a place that does not provide for probate of a will after death and that is not eligible for probate under (a) of this section, may be probated in this state upon receipt by the registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.
Applications for informal probate that relate to one or more of a known series of testamentary instruments, other than wills and codicils, the latest of which does not expressly revoke the earlier, shall be declined.
If the registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of AS 13.16.090 and 13.16.095 or any other reason, the registrar may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
(a) The moving party must give notice as described by AS 13.06.110 of the party's application for informal probate (1) to any person demanding it under AS 13.16.070, and (2) to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required. (b) If an informal probate is granted, within 30 days the applicant shall give written information of the probate to the heirs and devisees. The information shall include the name and address of the applicant, the name and location of the court granting the informal probate, and the date of the probate. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred if a personal representative is appointed who is required to give the written information required by AS 13.16.360. An applicant's failure to give information as required by this section is a breach of a duty to the heirs and devisees but does not affect the validity of the probate.
(a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in AS 13.16.310, if at least 120 hours have elapsed since the decedent's death, the registrar, after making the findings required by AS 13.16.115, shall appoint the applicant subject to qualification and acceptance; however, if the decedent was a nonresident, the registrar shall delay the order of appointment until 30 days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that the estate be subject to the laws of this state. (b) The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in AS 13.16.280 - 13.16.300, but is not subject to retroactive vacation.
(a) In informal appointment proceedings, the registrar must determine whether (1) the application for informal appointment of a personal representative is complete; (2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief; (3) the applicant appears from the application to be an interested person as defined in AS 13.06.050; (4) on the basis of the statements in the application, venue is proper; (5) any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator; (6) any notice required by AS 13.16.070 has been given; (7) from the statements in the application, the person whose appointment is sought has priority entitling the person to the appointment. (b) Unless AS 13.16.300 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in AS 13.16.290(c) has been appointed in a judicial district of this state, that, unless the applicant is the domiciliary personal representative or the personal representative's nominee, the decedent was not domiciled in this state and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.
If the registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of AS 13.16.110 and 13.16.115, or for any other reason, the registrar may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
The moving party must give notice as described by AS 13.06.110 of intention to seek an appointment informally (1) to any person demanding it under AS 13.16.070; and (2) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required.
If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument that may relate to property subject to the laws of this state, and that is not filed for probate in this court, the registrar shall decline the application.
(a) A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in AS 13.16.145(a) in which the person requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will that is the subject of a pending application, or a petition in accordance with AS 13.16.145(b) for an order that the decedent died intestate. (b) A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative. (c) During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent. (d) Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising the power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the personal representative's powers of office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will must (1) request an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs; (2) contain the statements required for informal applications as stated in AS 13.16.080(a)(1)(A)-(E), the statements required by AS 13.16.080(a)(2)(B) and (C); and (3) state whether the original of the last will of the decedent is in the possession of the court or accompanies the petition. (b) If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable. (c) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by AS 13.16.080(a)(1) and (4) and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by AS 13.16.080(a)(4)(B) may be omitted.
(a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by AS 13.06.110 by the petitioner to the persons enumerated in this subsection and to any additional person who has filed a demand for notice under AS 13.16.070. Notice shall be given to the following persons: (1) the surviving spouse, children, and other heirs of the decedent; (2) the devisees and executors named in any will that is being, or has been probated or offered for informal or formal probate in the judicial district, or that is known by the petitioner to have been probated or offered for informal or formal probate elsewhere; and (3) any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated. (b) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by registered mail to the alleged decedent at the last known address of the alleged decedent. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods: (1) by inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent; (2) by notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent; (3) by engaging the services of an investigator; the costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.
Any party to a formal proceeding who opposes the probate of a will for any reason shall state in the pleadings the objections to probate of the will.
If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of AS 13.16.180 have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.
(a) If evidence concerning execution of an attested will that is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the state, competent, and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence. (b) If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.
Subject to AS 13.06.068, a final order of a court of another state determining testacy, the validity, or construction of a will made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at death in the state where the order was made.
After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead, that venue is proper, and that the proceeding was commenced within the limitation prescribed by AS 13.16.040, it shall determine the decedent's domicile at death, any heirs, and the state of testacy of the decedent. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative that may be appropriate in view of the relief requested and findings is governed by AS 13.16.300. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place that does not provide for probate of a will after death, may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place. 
If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions that work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of AS 13.16.195.
If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.
(a) Subject to appeal and subject to vacation as provided in this section and in AS 13.16.200, a formal testacy order under AS 13.16.180 - 13.16.190, including an order that the decedent did not leave a valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that (1) the court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were (A) unaware of the later-offered will's existence at the time of the earlier proceeding; or (B) unaware of the earlier proceeding and were not given notice of the proceeding, except by publication; (2) if intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of the death, or were not given notice of any proceeding concerning the estate, except by publication; (3) a petition for vacation under either (1) or (2) of this subsection must be filed before the earliest of the following time limits: (A) if a personal representative has been appointed for the estate, the time of entry of an order approving final distribution of the estate, or, if the estate is closed by statement, six months after the filing of the closing statement; (B) whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by AS 13.16.040 when it is no longer possible to initiate an original proceeding to probate a will of the decedent; or (C) 12 months after the entry of the order sought to be vacated; (4) the order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs; (5) the finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at the last known address of the alleged decedent and the court finds that a search under AS 13.16.150(b) was made. (b) If the alleged decedent is not dead, even if notice was sent and search was made, the alleged decedent may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.
For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.
(a) A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by AS 13.16.145, as well as by this section. In other cases, the petition must contain or adopt the statements required by AS 13.16.080(a)(1) and describe the question relating to priority or qualification of the personal representative that is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise. (b) After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as personal representative, the court shall determine who is entitled to appointment under AS 13.16.065, make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under AS 13.16.295.
Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A supervised personal representative is responsible to the court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in AS 13.16.215 - 13.16.235, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised.
A petition for supervised administration may be filed by any interested person or by a personal representative at any time or the prayer for supervised administration may be joined with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for supervised administration must include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied. After notice to interested persons, the court shall order supervised administration of a decedent's estate as follows: (1) if the decedent's will directs supervised administration, it shall be ordered unless the court finds that circumstances bearing on the need for supervised administration have changed since the execution of the will and that there is no necessity for supervised administration; (2) if the decedent's will directs unsupervised administration, supervised administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate; or (3) in other cases if the court finds that supervised administration is necessary under the circumstances.
(a) The pendency of a proceeding for supervised administration of a decedent's estate stays action on any informal application then pending or thereafter filed. (b) If a will has been previously probated in informal proceedings, the effect of the filing of a petition for supervised administration is as provided for formal testacy proceedings by AS 13.16.140. (c) After receiving notice of the filing of a petition for supervised administration, a personal representative who has been appointed previously may not exercise the power to distribute any estate. The filing of the petition does not affect other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.
Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under AS 13.06 - AS 13.36, but a supervised personal representative may not exercise the power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative that may be ordered by the court must be endorsed on the letters of appointment and, unless so endorsed, is ineffective as to persons dealing in good faith with the personal representative.
Unless otherwise ordered by the court, supervised administration is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under AS 13.16.620. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of a supervised administration on the application of the personal representative or any interested person.
Before receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.
By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed by ordinary first-class mail to the personal representative at the address as listed in the application or petition for appointment or as thereafter reported to the court and to the personal representative's address as then known to the petitioner.
A personal representative shall execute and file a bond with the registrar unless (1) the estate is testate and the will expressly waives surety bond as to the person qualifying as personal representative; (2) the devisees or the heirs file written waiver of surety bond; (3) the personal representative is a qualified corporate fiduciary; or (4) the personal representative, pursuant to statute, has deposited cash or collateral with an agency of the state to secure performance of the personal representative's duties.
If bond is required and the provisions of the will or order do not specify the amount, unless stated in the application or petition, the person qualifying shall file a statement under oath with the registrar indicating the person's best estimate of the value of the personal estate of the decedent and of the income expected from the personal and real estate during the next year. The person qualifying shall execute and file a bond with the registrar, or give other suitable security, in an amount not less than the estimate. The registrar shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The registrar may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in AS 13.33.201, in a manner that prevents their unauthorized disposition. On petition of the personal representative or another interested person the court may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties.
Any person apparently having an interest in the estate worth in excess of $1,000, or any creditor having a claim in excess of $1,000, may make a written demand that a personal representative give bond. The demand must be filed with the registrar and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, bond is required, but the requirement ceases if the person demanding bond ceases to be interested in the estate, or if bond is excused as provided in AS 13.16.255 or 13.16.260. After receiving notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of the personal representative's office except as necessary to preserve the estate. Failure of the personal representative to meet a requirement of bond by giving suitable bond within 30 days after receipt of notice is cause for removal and appointment of a successor personal representative.
(a) The following requirements and provisions apply to any bond required by AS 13.16.245 - 13.16.330: (1) bonds shall name the state as obligee for the benefit of persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law; (2) unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other; the address of each surety shall be stated in the bond; (3) by executing an approved bond of a personal representative, the surety consents to the jurisdiction of the probate court that issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party; notice of any proceeding shall be delivered to the surety or mailed by registered or certified mail to the surety at the address as listed with the court where the bond is filed and to the surety's address as then known to the petitioner; (4) on petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative; (5) the bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted. (b) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
(a) On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement, or distribution, or exercise of any powers or discharge of any duties of the personal representative's office, or make any other order to secure proper performance of the personal representative's duty, if it appears to the court that the personal representative otherwise may take some action that would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties. (b) The matter shall be set for hearing within 10 days unless the parties otherwise agree. Notice as the court directs shall be given to the personal representative and the personal representative's attorney of record, if any, and to any other parties named defendant in the petition.
Termination of appointment of a personal representative occurs as indicated in AS 13.16.285 - 13.16.300. Termination ends the right and power pertaining to the office of personal representative as conferred by AS 13.06 - AS 13.36 or any will, except that a personal representative, at any time before distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve the personal representative of the duty to preserve assets subject to the personal representative's control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates the personal representative's authority to represent the estate in any pending or future proceeding.
The death of a personal representative or the appointment of a conservator for the estate of a personal representative, terminates the personal representative's appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by the decedent or ward at the time the appointment terminates, has the power to perform acts necessary for protection, and shall account for and deliver the estate assets to a successor or special personal representative upon appointment and qualification.
(a) An appointment of a personal representative terminates as provided in AS 13.16.630, one year after the filing of a closing statement. (b) An order closing an estate as provided in AS 13.16.620 or 13.16.625 terminates an appointment of a personal representative. (c) A personal representative may resign the position by filing a written statement of resignation with the registrar after giving at least 15 days' written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to that successor.
(a) A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in AS 13.16.275, after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed. (b) Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking appointment intentionally misrepresented material facts in the proceedings leading to appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of the office, or has mismanaged the estate or failed to perform any duty pertaining to the office. Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment either personally or for a nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.
Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will that is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative under it, does not terminate the appointment of the personal representative although the personal representative's powers may be reduced as provided in AS 13.16.140. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within 30 days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be.
AS 13.16.080 - 13.16.205 govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process, or claim that was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration that the former personal representative would have had if the appointment had not been terminated.
A special administrator may be appointed (1) informally by the registrar on the application of any interested person when necessary to protect the estate of a decedent before the appointment of a general personal representative or if a prior appointment has been terminated as provided in AS 13.16.285; (2) in a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration, including its administration in circumstances where a general personal representative cannot or should not act; if it appears to the court that an emergency exists, appointment may be ordered without notice.
(a) If a special administrator is to be appointed pending the probate of a will that is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available and qualified. (b) In other cases, any proper person may be appointed special administrator.
A special administrator appointed by the registrar in informal proceedings pursuant to AS 13.16.310(1) has the duty to collect and manage the assets of the estate, to preserve them, to account for them, and to deliver them to the general personal representative upon qualification. The special administrator has the power of a personal representative under AS 13.06 - AS 13.36 necessary to perform the special administrator's duties.
A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct.
The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in AS 13.16.280 - 13.16.295.
The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed that are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to the decedent's body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
A person to whom general letters are issued first has exclusive authority under the letters until the appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
(a) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees under AS 13.36.225 - 13.36.290. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and AS 13.06 - AS 13.36, and as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by AS 13.06 - AS 13.36, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of successors to the estate. (b) A personal representative may not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning the appointment or fitness to continue, or a supervised administration proceeding. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children and any pretermitted child of the decedent as described elsewhere in AS 13.06 - AS 13.36. (c) Except as to proceedings that do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately before death.
A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but the personal representative may invoke the jurisdiction of the court, in proceedings authorized by AS 13.06 - AS 13.36, to resolve questions concerning the estate or its administration.
Not later than 30 days after appointment, every personal representative, except any special administrator, shall give information of the appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information must include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, and describe the court where papers relating to the estate are on file. The personal representative's failure to give this information is a breach of duty to the persons concerned but does not affect the validity of the appointment, the personal representative's powers or other duties. A personal representative may inform other persons of the appointment by delivery or ordinary first-class mail.
(a) Within three months after appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare and file or mail an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item. (b) The personal representative shall send a copy of the inventory to interested persons who request it. The personal representative may also file the original of the inventory with the court.
The personal representative may employ a qualified and disinterested appraiser to assist in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items appraised.
If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative shall make a supplementary inventory or appraisal showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the original inventory was filed, or furnish copies of it or information on it to persons interested in the new information.
Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession of it, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in the personal representative's possession. The personal representative may maintain an action to recover possession of property or to determine the title to it.
When there is no taker of an intestate estate, or if an heir, devisee, or claimant cannot be found and the missing person has no conservator, the personal representative shall handle the (1) unclaimed personal property of the estate in accordance with AS 34.45.280 - 34.45.780; and (2) unclaimed real property of the estate in accordance with AS 38.95.
The property liable for the payment of unsecured debts of a decedent includes all property transferred by the decedent by any means that is in law void or voidable as against creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.
Until termination of appointment, a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in AS 13.16.400 and 13.16.405.
Any sale or encumbrance to the personal representative, the personal representative's spouse, agent, or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction that is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless (1) the will or a contract entered into by the decedent expressly authorized the transaction; or (2) the transaction is approved by the court after notice to interested persons.
A person who in good faith either assists a personal representative or deals with the personal representative for value is protected as if the personal representative properly exercised the personal representative's power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of supervised personal representatives which are endorsed on letters as provided in AS 13.16.230, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge of it. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the priorities stated in AS 13.16.540, a personal representative, acting reasonably for the benefit of the interested persons, may properly (1) retain assets owned by the decedent pending distribution or liquidation, including those in which the representative is personally interested or that are otherwise improper for trust investment; (2) receive assets from fiduciaries, or other sources; (3) perform, compromise, or refuse performance of the decedent's contracts that continue as obligations of the estate, as the personal representative may determine under the circumstances; in performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may: (A) execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or (B) deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement; (4) satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances; (5) if funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including money received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments which would be reasonable for use by trustees generally; (6) acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset; (7) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing or erect new party walls or buildings; (8) subdivide, develop or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; or adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration; (9) enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration; (10) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement; (11) abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate; (12) vote stocks or other securities in person or by general or limited proxy; (13) pay calls, assessment, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims; (14) hold a security in the name of a nominee or in other form without disclosure of the interest of the estate, but the personal representative is liable for any act of the nominee in connection with the security so held; (15) insure the assets of the estate against damage, loss, and liability and insure the personal representative against liability as to third persons; (16) borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate; (17) effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate; if the personal representative holds a mortgage, pledge, or other lien upon property of another person, the personal representative may, in place of foreclosure, accept a conveyance or transfer of encumbered assets from the owner of it in satisfaction of the indebtedness secured by lien; (18) pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate; (19) sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise; (20) allocate items of income or expense to either estate income or principal, as permitted or provided by law; (21) employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary; (22) prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of the personal representative's duties; (23) sell, mortgage, or lease any real or personal property of the estate or any interest in it for cash, credit, or for part cash and part credit, and with or without security for unpaid balances; (24) continue any unincorporated business or venture in which the decedent was engaged at the time of death (A) in the same business form for a period of not more than four months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will; (B) in the same business form for any additional period of time that may be approved by order of the court in a formal proceeding to which the persons interested in the estate are parties; or (C) throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate; (25) incorporate any business or venture in which the decedent was engaged at the time of death; (26) provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate; (27) satisfy and settle claims and distribute the estate as provided in AS 13.06 - 13.36; (28) consider discretionary distributions to a beneficiary as being made from capital gains realized during the year.
A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but the successor may not exercise any power expressly made personal to the executor named in the will.
If two or more persons are appointed co-representatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any co-representative receives and gives a receipt for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a co-representative has been delegated to act for the others. Persons dealing with a co-representative, if actually unaware that another has been appointed to serve or if advised by the personal representative with whom they deal that the personal representative has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt had been the sole personal representative.
Unless the terms of the will provide otherwise, every power exercisable by personal co-representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as co-executors is not appointed, those appointed may exercise all the powers incident to the office.
A personal representative is entitled to reasonable compensation for services. If a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, the personal representative may renounce the provision before qualifying and be entitled to reasonable compensation. A personal representative also may renounce the right to all or any part of the compensation. A written renunciation of fee may be filed with the court.
If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, that person is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred.
After notice to all interested persons or on petition of an interested person or on appropriate motion if administration is supervised, the propriety of employment of any person by a personal representative including any attorney, auditor, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for the personal representative's services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
Unless notice has already been given under this section, a personal representative upon appointment shall publish a notice once a week for three successive weeks in a newspaper of general circulation in the judicial district announcing the appointment and address and notifying creditors of the estate to present their claims within four months after the date of the first publication of the notice or be forever barred.
Unless an estate is insolvent, the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim that was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid. The running of any statute of limitations measured from some other event than death and advertisement for claims against a decedent is suspended during the four months following the decedent's death but resumes thereafter as to claims not barred pursuant to the sections that follow. For purposes of any statute of limitations, the proper presentation of a claim under AS 13.16.465 is equivalent to commencement of a proceeding on the claim.
(a) All claims against a decedent's estate that arose before the death of the decedent, including claims of the state and any subdivision of it, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows: (1) within four months after the date of the first publication of notice to creditors if notice is given in compliance with AS 13.16.450; however, claims barred by the nonclaim statute at the decedent's domicile before the first publication for claims in this state are also barred in this state; (2) within three years after the decedent's death, if notice to creditors has not been published. (b) All claims against a decedent's estate that arise at or after the death of the decedent, including claims of the state and any subdivision of it, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows: (1) a claim based on a contract with the personal representative, within four months after performance by the personal representative is due; (2) any other claim, within four months after it arises. (c) Nothing in this section affects or prevents (1) any proceeding to enforce any mortgage, pledge, or lien upon property of the estate; or (2) to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which there is protection through liability insurance.
Claims against a decedent's estate may be presented as follows: (1) the claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, or may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court; the claim is considered presented on receipt of the written statement of claim by the personal representative or on the filing of the claim with the court, whichever occurs first; if a claim is not yet due, the date when it will become due shall be stated; if the claim is contingent or unliquidated, the nature of the uncertainty shall be stated; if the claim is secured, the security shall be described; failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made; (2) the claimant may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction, to obtain payment of a claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim; no presentation of claim is required in regard to matters claimed in proceedings against the decedent that were pending at the time of death; (3) if a claim is presented under (1) of this section, no proceeding on it may be commenced more than 60 days after the personal representative has mailed a notice of disallowance; but, in the case of a claim that is not presently due or that is contingent or unliquidated, the personal representative may consent to an extension of the 60-day period, or to avoid injustice the court, on petition, may order an extension of the 60-day period, but in no event shall the extension run beyond the applicable statute of limitations.
(a) If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order: (1) costs and expenses of administration; (2) reasonable funeral expenses; (3) debts and taxes with preference under federal law and past due child support payments, except payments required under AS 25.27.120 - 25.27.130; (4) reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent; (5) debts and taxes with preference under other laws of this state; (6) all other claims. (b) Preference may not be given in the payment of any claim over any other claim of the same class, and a claim due and payable is not entitled to a preference over claims not due.
(a) As to claims presented in the manner described in AS 13.16.465 within the time limit prescribed in AS 13.16.460, the personal representative may mail a notice to any claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, the personal representative changes a decision concerning the claim, the personal representative shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim that is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than 60 days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail to a claimant notice of action on a claim for 60 days after the time for original presentation of the claim has expired has the effect of a notice of allowance. (b) Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow in whole or in part any claim or claims presented to the personal representative or filed with the clerk of the court in due time and not barred by (a) of this section. Notice in this proceeding shall be given to the claimant, the personal representative, and those other persons interested in the estate as the court may direct by order entered at the time the proceeding is commenced. (c) A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim. (d) Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing 60 days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.
(a) Upon the expiration of four months from the date of the first publication of the notice to creditors, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family and support allowances, for claims already presented that have not yet been allowed or whose allowance has been appealed, and for unbarred claims that may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment. (b) The personal representative at any time may pay any just claim that has not been barred, with or without formal presentation, but the personal representative is personally liable to any other claimant whose claim is allowed and who is injured by such payment if (1) the payment was made before the expiration of the time limit stated in (a) of this section and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or (2) the payment was made, due to the negligence or wilful fault of the personal representative, in such a manner as to deprive the injured claimant of priority.
(a) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in a fiduciary capacity in the course of administration of the estate unless the personal representative fails to reveal the representative capacity and identify the estate in the contract. (b) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if personally at fault. (c) Claims based on contracts entered into by a personal representative in a fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in the personal representative's fiduciary capacity, whether or not the personal representative is individually liable therefor. (d) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.
Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders the creditor's security; otherwise payment is upon the basis of one of the following: (1) if the creditor exhausts the security before receiving payment, unless precluded by other law, upon the amount of the claim allowed less the fair value of the security; or (2) if the creditor does not have the right to exhaust the security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement under which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation.
(a) If a claim that will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class. (b) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows: (1) if the claimant consents, the claimant may be paid the present or agreed value of the claim, taking any uncertainty into account; (2) arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.
In allowing a claim the personal representative may deduct any counterclaim that the estate has against the claimant. In determining a claim against an estate a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.
No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding.
When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.
If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part of it, renew or extend any obligation secured by the encumbrance, or convey or transfer the assets to the creditor in satisfaction of a lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.
(a) All assets of estates being administered in this state are subject to all claims, allowances, and charges existing or established against the personal representative wherever appointed. (b) If the estate either in this state or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent's domicile, prior charges, and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in the state or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of each claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, the creditor so benefited is to receive dividends from local assets only upon the balance of the claim after deducting the amount of the benefit. (c) If the family exemptions and allowances, prior charges, and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this state is not the state of the decedent's last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state the amount to which they are entitled, local assets shall be marshalled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this state from assets in other jurisdictions.
The estate of a nonresident decedent being administered by a personal representative appointed in this state shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless (1) by virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified under the local law of this state without reference to the local law of the decedent's domicile; (2) the personal representative of this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary personal representative; or (3) the court orders otherwise in a proceeding for a closing order under AS 13.16.620 or incident to the closing of a supervised administration. In other cases, distribution of the estate of a decedent shall be made in accordance with AS 13.16.005 - 13.16.400 and 13.16.535 - 13.16.695.
Notwithstanding AS 13.16.450 - 13.16.525, the trustee of a trust may, under AS 13.36.368(b)(3), take the action a personal representative may take under AS 13.16.450 - 13.16.525.
In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption, or intestacy may establish title to it by proof of the decedent's ownership, death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.
(a) Except as provided in (b) of this section and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property not disposed of by the will; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will. (b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator. (c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
The amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense that would be available to the successor in a direct proceeding for recovery of the debt.
A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
(a) Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions: (1) a specific devisee is entitled to distribution of the thing devised, and a spouse or child who has selected particular assets of an estate as provided in AS 13.12.402 - 13.12.405 shall receive the items selected; (2) a homestead or family allowance or devise payable in money may be satisfied by value in kind if (A) the person entitled to the payment has not demanded payment in cash; (B) the property distributed in kind is valued at fair market value as of the date of its distribution; and (C) no residuary devisee has requested that the asset in question remain a part of the residue of the estate; (3) for the purpose of valuation under (2) of this subsection, securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day before distribution or, if there was no sale on that day, at the median between amounts bid and offered at the close of that day; assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution; for assets that do not have readily ascertainable values, a valuation as of a date not more than 30 days before the date of distribution, if otherwise reasonable, controls; for purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised; (4) the residuary estate shall be distributed in any equitable manner, including distribution in kind, in cash, partially in kind, partially in cash, in divided interests, in undivided interests, pro rata among all the distributees, or by a method other than pro rata among all distributees; distribution under this paragraph may be made without regard to the income tax basis or other special tax attributes of the assets; a distribution under this paragraph may be made in whatever manner the personal representative finds to be the most practicable and in the best interests of the distributees. (b) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset to be received by the distributee, if not waived earlier in writing, terminates if the distributee fails to object in writing received by the personal representative within 30 days after mailing or delivery of the proposal.
If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property.
Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative, is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper.
Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if the distributee or claimant has the property. If the distributee or claimant does not have the property, then the distributee or claimant is liable to return the value as of the date of disposition of the property improperly received and its income and gain.
If property distributed in kind or a security interest in it is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested person, whether or not the distribution was proper or supported by court order and whether or not the authority of the personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, executed the deed of distribution, as well as a purchaser from or lender to any other distributee or transferee of a distributee. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated before the distribution. Any instrument described in this section that is recorded under AS 40.17 or filed under former AS 45.09 or under AS 45.29 and that bears a notation of that recordation or filing is prima facie evidence that the transfer described in it was made for value.
When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the court before the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in the same manner as provided by the law for civil actions of partition. The court may direct the personal representative to sell any property that cannot be partitioned without prejudice to the owners and that cannot conveniently be allotted to any one party.
Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to the obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing in this section relieves trustees of any duties owed to beneficiaries of trusts.
(a) Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee inform the beneficiaries as provided in AS 13.36.080. (b) If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if the personal representative apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and the personal representative may withhold distribution until the court has acted. (c) No inference of negligence on the part of the personal representative shall be drawn from failure to exercise the authority conferred by (a) and (b) of this section.
(a) If an heir, devisee, or claimant cannot be found, the personal representative shall distribute the share of personal property of the missing person to the person's conservator, or if the person has no conservator to the Department of Revenue to be deposited in the general fund as required by AS 34.45.370. Property distributable to the Department of Revenue under this subsection is subject to AS 34.45.280 - 34.45.780. If notice to the heir, devisee, or claimant, substantially equivalent to that required by AS 34.45.310, has been given by the personal representative or other person, AS 34.45.310 does not apply. (b) Real property distributable to a missing heir, devisee, or claimant shall be distributed first to the conservator of the heir, devisee, or claimant; if the heir, devisee, or claimant has no conservator, the real property passes to the state. Real property reported under this subsection is subject to AS 38.95.200 - 38.95.270.
A personal representative may discharge the obligation to distribute to any person under legal disability by distributing to the person's conservator, or any other person authorized by AS 13.06 - AS 13.36 or otherwise to give a valid receipt and discharge for the distribution.
(a) Unless the will provides otherwise, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent's will directs a method of apportionment of tax different from the method described in AS 13.06 - AS 13.36, the method described in the will controls. (b) The court in which venue lies for the administration of the estate of a decedent, on petition for the purpose, may determine the apportionment of the tax. (c) If the court finds that it is inequitable to apportion interest and penalties in the manner provided in (a) of this section, because of special circumstances, it may direct apportionment of them in the manner it finds equitable. (d) If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge the fiduciary with the amount of the assessed penalties and interest. (e) In any action to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with AS 13.06 - AS 13.36, the determination of the court in respect thereto shall be prima facie correct. (f) The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution, the amount of tax attributable to the distributee's interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this chapter. (g) If property held by the personal representative is distributed before final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative. (h) In making an apportionment, allowances shall be made for any exemptions granted, for any classification made of persons interested in the estate, and for any deductions and credits allowed by the law imposing the tax. (i) Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing the relationship or receiving the gift; but if an interest is subject to a prior present interest that is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal. (j) Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or the decedent's estate inures to the proportionate benefit of all persons liable to apportionment. (k) Any credit for inheritance, succession, or estate taxes, or taxes in the nature thereof applicable to property or interests includable in the estate, inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax. (l) To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar gift or devisee is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in (a) of this section, and to that extent no apportionment is made against the property. This subsection does not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under Section 2053(d) of the Internal Revenue Code of 1954, as amended, of the United States, relating to deduction for state death taxes on transfers for public, charitable, or religious uses. (m) No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder. (n) Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax who institutes the action within a reasonable time after the three-month period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectable at a time following the death of the decedent but thereafter became uncollectable. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment. (o) A personal representative acting in another state or a person required to pay the tax domiciled in another state may institute an action in the courts of this state and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state or of a death duty due by a decedent's estate to another state, from a person interested in the estate who is either domiciled in this state or who owns property in this state subject to attachment or execution. For the purposes of the action the determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct. (p) In this section, (1) estate means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this state; (2) fiduciary means personal representative or trustee; (3) person means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency; (4) person interested in the estate means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest in the property included in the decedent's estate; it includes a personal representative, conservator, and trustee; (5) state means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico; (6) tax means the federal estate tax and the additional inheritance tax imposed by AS 43.31 and interest and penalties imposed in addition to the tax.
In this chapter, (1) local administration means administration by a personal representative appointed in this state under appointment proceedings described in AS 13.16; (2) local personal representative includes any personal representative appointed in this state under appointment proceedings described in AS 13.16 and excludes foreign personal representatives who acquire the power of a local personal representative under AS 13.21.035; (3) resident creditor means a person domiciled in, or doing business in this state, who is, or could be, a claimant against an estate of a nonresident decedent.
At any time after the expiration of 60 days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock, or chose in action, belonging to the estate of the nonresident decedent may pay the debt, and deliver the personal property, or the instrument evidencing the debt, obligation, stock, or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of appointment and an affidavit made by or on behalf of the representative stating: (1) the date of the death of the nonresident decedent; (2) that no local administration, or application or petition therefor, is pending in this state; (3) that the domiciliary foreign personal representative is entitled to payment or delivery.
Payment or delivery made in good faith under the provisions of AS 13.21.015 releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
Payment or delivery under AS 13.21.015 may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
If no local administration or application or petition therefor is pending in this state, a domiciliary foreign personal representative may file with a court in this state in a judicial district in which property belonging to the decedent is located, authenticated copies of appointment and of any official bond that has been given by the foreign personal representative.
A domiciliary foreign personal representative who has complied with AS 13.21.030 may exercise as to assets in this state all powers of a local personal representative and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.
The power of a domiciliary foreign personal representative under AS 13.21.015 - 13.21.035 shall be exercised only if there is no administration or application therefor pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under AS 13.21.035 but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. A person who, before receiving actual notice of a pending local administration, has changed position in reliance upon the powers of a foreign personal representative is not prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations that have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for the foreign personal representative in any action or proceedings in this state.
In respect to a nonresident decedent, the provisions of AS 13.16 govern (1) proceedings, if any, in a court of this state for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and (2) the status, powers, duties, and liabilities of any local personal representative and the rights of claimants, purchasers, distributees, and others in regard to a local administration.
A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by (1) filing authenticated copies of appointment as provided in AS 13.21.030, (2) receiving payment of money or taking delivery of personal property under AS 13.21.015, or (3) doing any act as a personal representative in this state that would have given the state jurisdiction over the personal representative as an individual. Jurisdiction under (2) of this section is limited to the money or value of personal property collected.
In addition to jurisdiction conferred by AS 13.21.055, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that the represented decedent was subject to jurisdiction immediately before death.
(a) Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to the representative's last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first-class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this state on either the foreign personal representative or the decedent immediately before death. (b) If service is made upon a foreign personal representative as provided in (a) of this section, the representative shall be allowed at least 30 days within which to appear or respond.
An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if the representative were a party to the adjudication.
It is the policy of the state that all guardians and conservators, when making decisions for their wards or protected persons, shall abide by the highest ethical standards of decision making and shall consider the standards of practice adopted by the department by regulation. The department shall adopt standards of practice for guardians and conservators and, before doing so, shall review the standards of practice adopted by a national organization with expertise in the area of standards of practice for guardians and conservators, such as the National Guardianship Association.
Unless otherwise apparent from the context, in AS 13.06 - AS 13.36, (1) department means the Department of Commerce, Community, and Economic Development; (2) essential requirements for physical health or safety means the health care, food, shelter, clothing, personal hygiene, and protection without which serious physical injury or illness is more likely than not to occur; (3) full guardian means a guardian who possesses the legal duties and powers enumerated in AS 13.26.316(c); (4) guardian includes full guardian and partial guardian; (5) incapacitated person means a person whose ability to receive and evaluate information or to communicate decisions is impaired for reasons other than minority to the extent that the person lacks the ability to provide the essential requirements for the person's physical health or safety without court-ordered assistance; (6) partial guardian means a guardian who possesses fewer than all of the legal duties and powers of a full guardian, and whose rights, powers, and duties have been specifically enumerated by court order; (7) private professional conservator means a person, other than the public guardian, who is licensed under AS 08.26 or exempt under AS 08.26.180; (8) private professional guardian means a person, other than the public guardian, who is licensed under AS 08.26 or exempt under AS 08.26.180; (9) a protected person is a minor or other person for whom a conservator has been appointed or other protective order has been made; (10) a protective proceeding is a proceeding under the provisions of AS 13.26.401 to determine that a person cannot effectively manage or apply the person's estate to necessary ends, either because the person lacks the ability or is otherwise inconvenienced, or because the person is a minor, and to secure administration of the estate by a conservator or other appropriate relief; (11) respondent means a person who, in a guardianship proceeding under this chapter, is alleged to be an incapacitated person and for whom the appointment of a guardian or alternative assistance is sought; respondent includes a person seeking the appointment of a guardian or alternative assistance for oneself; (12) visitor means a person trained or experienced in law, medical care, mental health care, pastoral care, education, rehabilitation, or social work, who is an officer, employee, or special appointee of the court with no personal interest in the proceedings; (13) a ward is a person for whom a guardian has been appointed; a minor ward is a minor for whom a guardian has been appointed solely because of minority.
(a) The court has jurisdiction over protective proceedings and guardianship proceedings. (b) When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated. (c) This section is subject to the requirements of AS 13.27 (Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act).
(a) A notice of the filing of a petition, a summary of all formal proceedings, and a dispositional order or modification or termination of a dispositional order relating to a proceeding under this chapter shall be available for public inspection. All other information contained in the court records relating to a proceeding under this chapter is confidential and available only upon court order for good cause shown or to the following persons: (1) the person who is the subject of the court record, the person's attorney, or the person's guardian ad litem; (2) a person designated by the person who is the subject of the court record; (3) the guardian of the person who is the subject of the court record or the attorney of the guardian; (4) the conservator of the estate of the person who is the subject of the court record or the attorney of the conservator; (5) a party to the proceeding and the person's attorney; (6) the judge or judges hearing or reviewing the matter; (7) a member of the clerical or administrative staff of the court if access is essential for authorized internal administrative purposes; and (8) the department when a private professional guardian or a private professional conservator is involved in the proceeding. (b) Upon finding that a petition under this chapter was malicious, frivolous, or without just cause, the court may order that all information contained in the court records relating to the proceeding be sealed and that the information be disclosed only upon court order for good cause shown.
Any person under a duty to pay or deliver money or personal property to a minor may perform this duty, in amounts not exceeding $5,000 a year, by paying or delivering the money or property to (1) the minor, if the minor is married; (2) any person having the care and custody of the minor with whom the minor resides; (3) a guardian of the minor; or (4) a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor and giving notice of the deposit to the minor. This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor are pending. The persons, other than the minor or any financial institution under (4) of this section, receiving money or property for a minor, are obligated to apply the money to the support and education of the minor, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's support. Any excess sums shall be preserved for future support of the minor and any balance not so used and any property received for the minor must be turned over to the minor when the minor attains majority. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof.
(a) Upon the request of a ward, protected person, or respondent, or the attorney of a ward, protected person, or respondent, the court shall appoint a guardian ad litem to protect the rights of the ward, protected person, or respondent in proceedings under AS 13.26.201 - 13.26.580. The court shall make the appointment if the court is satisfied that, because of impaired ability effectively to receive and evaluate information regarding the proceedings or because of impaired ability to communicate decisions regarding the proceedings, the ward, protected person, or respondent is incapable of determining the ward's, protected person's, or respondent's position regarding the issues involved in the pending proceedings, and (1) a guardian or conservator has not been appointed; (2) the interests of the ward, protected person, or respondent conflict with those of the ward's, protected person's, or respondent's guardian or conservator; or (3) the appointment is otherwise in the interests of justice. (b) The guardian ad litem shall assist the ward, protected person, or respondent in determining the ward's, protected person's, or respondent's interests in regard to the legal proceedings that involve the ward, protected person, or respondent. If the ward, protected person, or respondent is entirely incapable of determining those interests, the guardian ad litem shall make the determination of those interests and advise the court and counsel for all parties accordingly. The guardian ad litem shall (1) inquire thoroughly into all the circumstances that a prudent ward, protected person, or respondent would consider in determining the ward's, protected person's, or respondent's own interests in the proceedings, including any prior relevant statements made or actions taken by the ward, protected person, or respondent; and (2) encourage the ward, protected person, or respondent to participate, to the maximum extent possible, in all decisions and to act on the ward's, protected person's, or respondent's own behalf on all matters in which the ward, protected person, or respondent is able. (c) The attorney for the ward, protected person, or respondent may be appointed as the guardian ad litem for the ward, protected person, or respondent if there is no other party readily available and able to serve as a guardian ad litem and the court determines that the appointment is appropriate under the standards set out in (a) of this section. When a person who has been appointed by the court as the attorney for the ward, protected person, or respondent is appointed to act as the guardian ad litem for the ward, protected person, or respondent under this subsection, the appointment of the person as the attorney ends, and the person appointed as the guardian ad litem shall act exclusively as a guardian ad litem for the ward, protected person, or respondent. (d) The office of public advocacy shall provide guardian ad litem services to persons who would suffer financial hardship or become dependent upon a government agency or a private person or agency if the services were not to be provided at state expense.
A parent or a guardian of an adult incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding one year, any powers regarding care, custody, or property of the adult incapacitated person.
(a) A parent or a guardian of a minor child, by a properly executed power of attorney that is substantially in the form provided in (f) of this section, may delegate to another person one or more powers regarding the care or custody of the minor child, except the power to consent to (1) the marriage or adoption of the minor child; (2) the performance or inducement of an abortion on or for the minor child; or (3) the termination of parental rights to the minor child. (b) A parent or guardian of a minor child may revoke the power of attorney made by the parent or guardian under (a) of this section at any time. A parent of a minor child may revoke a power of attorney that another parent of the minor child has made under (a) of this section. A guardian of a minor child may revoke a power of attorney that another guardian of the minor child has made under (a) of this section. If a parent or guardian revokes a power of attorney, the attorney-in-fact shall return the minor child to the custody of the parent or the guardian as soon as reasonably possible after the revocation. (c) Except as provided in (d) of this section, a power of attorney under this section is not effective for a period that exceeds one year. However, after a power of attorney expires under this subsection, a parent or guardian may enter into a new power of attorney. (d) A power of attorney made by a military parent or guardian may be effective for a period that exceeds one year if the military parent or guardian is on active duty, but the power of attorney is not effective for a period that exceeds the length of the active duty plus 30 days. (e) Unless a parent or guardian revokes a power of attorney, the attorney-in- fact shall exercise the power in the power of attorney without compensation for the duration of the power of attorney. (f) To designate an attorney-in-fact, a parent or guardian shall execute a power of attorney that is in substantially the following form:Section 1. I certify that I am the parent or guardian of(Full name of minor child)(Date of birth)(Full name of minor child)(Date of birth)(Full name of minor child)(Date of birth)who is/are minor children.Section 2. I designate _____________________________________________________ (Full name of attorney- in-fact), _____________________________________________________(Street address, city, state, and zip code of attorney-in-fact) (Home telephone of attorney-in-fact)(Work telephone of attorney-in-fact)as the attorney-in-fact of each minor child named above. Section 3. I delegate to the attorney-in-fact all of my power and authority regarding the care and custody of each minor child named above, including the right to enroll the child in school, the right to inspect and obtain copies of education records and other records concerning the child, the right to attend school activities and other functions concerning the child, and the right to give or withhold any consent or waiver with respect to school activities, medical treatment, dental treatment, and other activity, function, or treatment that may concern the minor child. This delegation does not include the power or authority to consent to the marriage or adoption of the minor child, the performance or inducement of an abortion on or for the minor child, or the termination of parental rights to the minor child. ORSection 4. I delegate to my attorney-in-fact the following specific powers and responsibilities (write in): _____Delegation under this section does not include the power or authority to consent to the marriage or adoption of the minor child, the performance or inducement of an abortion on or for the minor child, or the termination of parental rights to the minor child. (If you complete Section 4, Section 3 does not apply). Section 5. This power of attorney is effective for a period not to exceed one year, beginning __________, 20 _____, and ending __________, 20 _____. I reserve the right to revoke this authority at any time. ORSection 6. I am a military parent or guardian under AS 13.26.066(d). My active duty is scheduled to begin on __________, 20 _____, and is estimated to end on __________, 20 _____. I acknowledge that this power of attorney will not last more than one year, or the term of my active duty service plus 30 days, whichever period is longer. By: _____________________________________________________(Parent/guardian signature)Section 7. I hereby accept my designation as attorney-in-fact for the minor child/children identified in this power of attorney. _____________________________________________________(Attorney-in-fact signature)State of __________________________________________ Judicial DistrictACKNOWLEDGMENTBefore me, the undersigned, a Notary Public, in and for the Judicial District and State identified above, on this _________ day of _________, 20 _____, personally appeared _____________________________________________________ (name of parent/guardian) and _____________________________________________________ (name of attorney-in-fact), to me known to be the persons who executed this power of attorney, and each acknowledged to me that each executed the same as the person's free and voluntary act and deed for the uses and purposes set out in this power of attorney. Witness my hand and official seal the day and year written above. (Signature of notary public) (Seal, if any)_____________________________________________________(Title and rank)My commission expires: __________ (g) A power of attorney does not change parental rights, legal rights, obligations, or other authority established by an existing court order and does not deprive the parent or guardian of rights, obligations, or other authority relating to the custody, visitation, or support of the minor child. (h) Except as otherwise determined under another statute, the execution of a power of attorney by a parent or guardian does not constitute abandonment, neglect, or abuse of the minor child or ward under AS 47.10.013 - 47.10.015, unless the parent or guardian fails, after the power of attorney terminates, to retake custody of the child and does not execute a new power of attorney. (i) Under a power of attorney, a minor child is not considered to be in foster care, and the attorney-in-fact is not considered to be providing foster care for which a license is required under AS 47.32. (j) In this section, (1) active duty means military duties that are performed full time; (2) attorney-in-fact means the individual to whom a parent or guardian gives a power under a power of attorney; (3) foster care means care provided by a person for which a foster home license is required by AS 47.32; (4) guardian means a natural person who is legally appointed the guardian of a minor child by the court under this chapter; (5) military parent or guardian means a person who is a parent or guardian of a minor and who is a member of (A) the armed forces of the United States; (B) a reserve component of the armed forces of the United States; (C) the National Oceanic and Atmospheric Administration Commissioned Officer Corps or the United States Public Health Service Commissioned Corps, if the member is (i) assigned by proper authority to duty with the armed forces of the United States; or (ii) required to serve on active duty with the armed forces of the United States under a call or order of the President of the United States, or to serve on active duty with the military forces of the state; (6) minor child means a natural person who is under 18 years of age, including a stepchild or a grandchild, but not including a foster child; (7) parent includes a stepparent or a grandparent, and a parent who is incarcerated for a criminal conviction, but not a foster parent; (8) power of attorney means a power of attorney entered into under this section.
A person becomes a guardian of a minor by acceptance of a testamentary appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward.
The parent of a minor may appoint by will a guardian of an unmarried minor. Subject to the right of the minor under AS 13.26.126, a testamentary appointment becomes effective upon filing the guardian's acceptance in the court in which the will is probated, if before acceptance, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority. This state recognizes a testamentary appointment effected by filing the guardian's acceptance under a will probated in another state which is the testator's domicile. Upon acceptance of appointment, written notice of acceptance must be given by the guardian to the minor and to the person having care of the minor, or to the minor's nearest adult relation.
A minor of 14 or more years may prevent an appointment of a testamentary guardian for the minor from becoming effective, or may cause a previously accepted appointment to terminate, by filing with the court in which the will is probated a written objection to the appointment before it is accepted or within 30 days after notice of its acceptance. An objection may be withdrawn. An objection does not preclude appointment by the court in a proper proceeding of the testamentary nominee, or any other suitable person.
The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order. A guardian appointed by will as provided in AS 13.26.121 whose appointment has not been prevented or nullified under AS 13.26.126 has priority over any guardian who may be appointed by the court but the court may proceed with an appointment upon a finding that the testamentary guardian has failed to accept the testamentary appointment within 30 days after notice of the guardianship proceeding.
(a) The venue for guardianship proceedings for a minor is in the place where the minor resides or is present. (b) The venue for a guardianship proceeding for a child in state custody under AS 47.10 is the (1) superior court where the child-in-need-of-aid proceeding is pending as provided under AS 47.10.111; or (2) judicial district in which the petitioner resides if the petitioner provides notice to all of the parties to the child-in-need-of-aid proceeding and no party objects.
The court may appoint as guardian any adult whose appointment would be in the best interests of the minor and is consistent with a priority given to an adult family member. The court shall appoint a person nominated by the minor, if the minor is 14 years of age or older, unless the court finds the appointment contrary to the best interests of the minor. In this section, adult family member has the meaning given in AS 47.10.990.
(a) Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor is to be given by the petitioner in the manner prescribed by AS 13.06.110 to: (1) the minor, if the minor is 14 or more years of age; (2) the person who has had the principal care and custody of the minor during the 60 days preceding the date of the petition; and (3) any living parent of the minor. (b) Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the requirements of AS 13.26.132 have been met, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases the court may dismiss the proceedings, or make any other disposition of the matter that will best serve the interest of the minor. (c) If necessary, the court may appoint a temporary guardian, with the status of an ordinary guardian of a minor, but the authority of a temporary guardian shall not last longer than six months. (d) If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is 14 years of age or older. (e) A petitioner seeking appointment as the guardian of a minor in state custody under AS 47.10 shall file the petition in either the court where the child-in- need-of-aid proceedings are pending or the judicial district in which the petitioner resides, as required under AS 13.26.137(b) and AS 47.10.111.
Procedures relating to subsidized guardianships for hard-to-place children are governed by AS 25.23.200 - 25.23.240.
In addition to the applicable procedures under this chapter, a guardianship decree and review of a guardianship decree are governed by the procedures established under AS 25.23.180 and, for a child-in-need-of-aid, AS 47.10.089, pertaining to voluntary relinquishment of parental rights and retaining of parental privileges in a guardianship decree.
By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian, or mailed by ordinary mail to the guardian's address as listed in the court records and to the guardian's address as then known to the petitioner. Letters of guardianship must indicate whether the guardian was appointed by will or by court order.
A guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of a minor and unemancipated child, except that a guardian is not legally obligated to provide from the guardian's own funds for the ward and is not liable to third persons by reason of the parental relationship for acts of the ward. In particular, and without qualifying the foregoing, a guardian (1) must take reasonable care of the ward's personal effects and commence protective proceedings if necessary to protect other property of the ward; (2) may receive money payable for the support of the ward to the ward's parent, guardian or custodian under the terms of any statutory benefit or insurance system, or any private contract, devise, trust, conservatorship or custodianship; the guardian also may receive money or property of the ward paid or delivered by virtue of AS 13.26.031; any sums so received shall be applied to the ward's current needs for support, care and education; the guardian must exercise due care to conserve any excess for the ward's future needs unless a conservator has been appointed for the estate of the ward, in which case excess shall be paid over at least annually to the conservator; sums so received by the guardian may not be used for compensation for the guardian's services except as approved by order of court or as determined by a duly appointed conservator other than the guardian; a guardian may institute proceedings to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward; (3) may facilitate the ward's education, social, or other activities and authorize medical or other professional care, treatment, or advice; a guardian is not liable by reason of this consent for injury to the ward resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have consented; a guardian may consent to the marriage or adoption of the ward; (4) must report the condition of the ward and of the ward's estate which has been subject to the guardian's possession or control, as ordered by court on petition of any person interested in the minor's welfare or as required by court rule.
A guardian's authority and responsibility terminate upon the death, resignation, or removal of the guardian or upon the minor's death, adoption, marriage, or attainment of majority, but termination does not affect the guardian's liability for prior acts, nor the obligation to account for funds and assets of the ward. Resignation of a guardian does not terminate the guardianship until it has been approved by the court. A testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding.
(a) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting, and other proceedings relating to the guardianship. (b) If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.
(a) Any person interested in the welfare of a ward, or the ward, if 14 or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interest of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian. (b) After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate. (c) If, at any time in the proceeding, the court determines that the interests of the ward are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is 14 or more years of age.
Guardianship for an incapacitated person shall be used only as is necessary to promote and protect the well-being of the person, shall be designed to encourage the development of maximum self-reliance and independence of the person, and shall be ordered only to the extent necessitated by the person's actual mental and physical limitations. An incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those that have been expressly limited by court order or have been specifically granted to the guardian by the court.
(a) The parent of an incapacitated person may by will appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having care of the incapacitated person or to the incapacitated person's nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, if, prior thereto, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings. (b) The spouse of a married incapacitated person may by will appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having care of the incapacitated person or to the incapacitated person's nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings. (c) This state recognizes a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state. (d) On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under AS 13.26.216 - 13.26.316. (e) A testamentary appointment of a guardian by the parent of an incapacitated person, or by the spouse of a married incapacitated person, may grant all guardianship powers and duties that the deceased parent or spouse held, subject to modification by the court under AS 13.26.286.
The venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution under order of a court of competent jurisdiction, venue is also in the judicial district in which that court sits.
(a) Any person may petition the court for a finding of incapacity and the appointment of a guardian for oneself or for another person. (b) The petition for appointment of a guardian must state (1) the name, age, and address of the petitioner and any relationship to the respondent; (2) the name, age, and present address of the respondent; (3) the name and address of the person or facility presently having care, custody, guardianship, or conservatorship of the respondent, if any, and the existence of any other restrictions on the legal capacity of the respondent to act in the respondent's own behalf; (4) the nature and degree of the alleged incapacity; (5) the particular type and duration of appointment and the protection and assistance being sought; (6) the names and addresses, unless they are unknown and cannot reasonably be ascertained, of the individuals most closely related to the respondent by blood or marriage; (7) the facts supporting the allegations of incapacity and the need for appointment of a guardian; (8) the names and addresses of persons known to the petitioner who have knowledge that might prove helpful in determining the capacity and needs of the respondent. (c) The petition may also nominate a guardian and include a request for temporary guardianship as provided in AS 13.26.301 if the petitioner believes there is an imminent danger that the physical health or safety of the respondent will be seriously impaired during the pendency of the guardianship proceeding. A request for temporary guardianship must specify facts that cause the petitioner to believe that a temporary guardian is necessary. (d) [Repealed,  31 ch 84 SLA 2004.] 
(a) Upon the filing of a petition, the court shall schedule a hearing on the issue of incapacity. The hearing shall be conducted within 120 days from the filing of the petition unless the court postpones the hearing for cause. (b) The respondent is entitled to be represented by an attorney in the proceedings. If the respondent is financially unable to employ an attorney, the court shall appoint the office of public advocacy (AS 44.21.400) under AS 13.26.291 to represent the respondent in the proceedings. (c) The court shall appoint a visitor. The visitor shall arrange for evaluations to be performed and prepare a written report to be filed with the court. The court shall also appoint an expert who has expertise in regard to the alleged or admitted incapacity to investigate the issue of incapacity. The visitor shall interview the respondent and the person seeking appointment as guardian, if any. The visitor shall conduct the interviews and investigations necessary to prepare the report and shall arrange for the respondent to be examined by the expert appointed under this section. The expert's written report shall be attached to the visitor's report. Interviews and examinations shall take place in the respondent's usual residence unless (1) the respondent consents to being examined or interviewed in a medical or mental health facility; or (2) the visitor considers it necessary to conduct interviews or examinations in a medical or mental health facility. (d) The Alaska Court System shall provide visitors and experts in guardianship proceedings under AS 13.26.291. The Alaska Court System may contract for services of court-appointed visitors and experts.
(a) Upon appointment, the visitor shall promptly (1) explain to the respondent, in a language or communication system the respondent can understand, the purpose of the interview and possible consequences of the proceedings; (2) serve a copy of the petition on the respondent in accordance with the procedure described in AS 13.06.110; (3) explain and provide to the respondent a written statement of the following rights: (A) the respondent may communicate with an attorney or an expert in the field of the alleged incapacity before proceeding with the interview; (B) if the respondent does not have an attorney, an attorney, whose name, address, and telephone number shall be included in the statement, will be designated to advise and represent the respondent before and at any judicial hearings, and the attorney may arrange for an examination and consultation with an expert; and (C) the respondent may, instead, employ an attorney or expert of the respondent's own choice; and (4) offer assistance to the respondent in contacting an attorney. (b) A substantive interview of the respondent or other investigation may not be conducted until the provisions of (a) of this section are satisfied.
(a) The visitor shall file with the court an evaluation report, proof of service of the petition upon the respondent, and proof of service of the report upon the respondent, the respondent's attorney, and the petitioner, within 90 days after the date on which the petition was filed. (b) The visitor shall, as part of the evaluation report, explain alternatives to guardianship and recommend any that will safeguard the respondent's essential requirements for physical health and safety. The evaluation report may recommend personal guardianship only if the visitor determines that the needs of the respondent cannot be met by other alternatives. (c) The evaluation report must include (1) the results and analyses of medical and other tests and examinations performed that describe the respondent's mental, emotional, physical, and educational condition, adaptive behavior and social skills, and that specify the data on which the description is based; (2) recommendations regarding the types and extent of assistance, if any, necessary to meet the essential requirements for the physical health and safety of the respondent; (3) an evaluation of the respondent's need for mental health treatment and whether there is a substantial probability that available treatment will significantly improve the respondent's mental condition; (4) an evaluation of the respondent's need for educational or vocational assistance or personal care and whether these can be made available to the respondent; (5) an evaluation of the probability that the incapacity may significantly lessen, and the type of services or treatment that will facilitate improvement in the respondent's condition or skills; (6) a list of the names and addresses of all individuals who examined, interviewed, or investigated the respondent and of the names and addresses of all persons contacted in preparation of the report; (7) a summary of the information that (A) was supplied by the person described in (6) of this subsection; and (B) supports the conclusions of the report; (8) a description of the alternatives to guardianship that were considered and not recommended and an explanation of why they are not feasible to meet the respondent's needs; (9) a description of the present home and living arrangement of the respondent and of any other proposed placement and a recommendation for the respondent's living arrangement that provides the least restrictive setting necessary to protect the respondent from serious illness, injury, or disease; and (10) a specification of the financial resources of the respondent, the respondent's entitlements to insurance benefits, and publicly operated or sponsored health, mental health, and welfare assistance that might be employed in the provision of services to the respondent. (d) If personal guardianship is recommended, the evaluation report required under this section must include a guardianship outline that identifies (1) potential guardians; (2) the specific services necessary and available to protect the respondent from serious injury, illness, or disease and, to the extent possible, to return the respondent to full capacity in handling the respondent's own affairs; (3) the means by which the services described in (2) of this subsection may be financed; (4) the specific, least restrictive authority needed by the guardian to provide the services described in (2) of this subsection. (e) The petitioner and the respondent may file responses to the evaluation report within 10 days of receiving it. The court may grant additional time if requested for cause.
(a) A ward or respondent has the right to refuse to respond to questions in the course of examinations and evaluations. However, the ward or respondent may be required to submit to interviews for the purpose of ascertaining whether the ward or respondent lacks the capacity to make informed decisions about care and treatment services. (b) Statements of a ward or respondent in the course of evaluations, examinations, and treatment under AS 13.26.201 - 13.26.316 are privileged, confidential, and not admissible without the ward's or respondent's consent in any civil or criminal proceeding other than proceedings under AS 13.26.201 - 13.26.316. A ward or respondent at all times has the right to refuse to answer questions if the answers may tend to incriminate the ward or respondent. (c) During an interview or a testing conducted under AS 13.26.201 - 13.26.316, a ward or respondent has the right to be accompanied by an attorney or expert of the ward's or respondent's own choosing. (d) The court, if requested by a ward or respondent in preparation for and in connection with a hearing held under AS 13.26.201 - 13.26.316, shall appoint an expert having expertise in regard to the alleged or admitted incapacity to examine the respondent and testify on the respondent's behalf. The request shall be filed in court at least five days before the hearing. An expert appointed under this subsection may be the same expert appointed under AS 13.26.226(c).
(a) The principal duty of an attorney representing a ward or respondent is to represent the ward or respondent zealously. Zealous representation includes at least (1) personal interviews with the ward or respondent; unless good cause exists, the first contact with the ward or respondent shall be at least two weeks before the hearing; (2) explaining, if possible, to the ward or respondent in terms that the ward or respondent can understand, the nature and possible consequences of the proceeding, the alternatives that are available, and the rights to which the ward or respondent is entitled; (3) securing and presenting evidence and testimony and offering arguments that would tend to protect the ward's or respondent's rights and that would tend to further the interests of the ward or respondent. (b) To the maximum extent possible, the ward or respondent shall remain responsible for determining the interests of the ward or respondent. However, the attorney for the ward or respondent may seek appointment of a guardian ad litem if the circumstances of AS 13.26.041 apply.
(a) At the hearing scheduled under AS 13.26.226, the respondent has the right to (1) present evidence on the respondent's own behalf; (2) cross-examine adverse witnesses; (3) remain silent; (4) have the hearing open or closed to the public as the respondent elects; (5) be present unless the court determines that the respondent's conduct in the courtroom is so disruptive that the proceedings cannot reasonably continue with the respondent present; (6) be tried by jury on the issue of incapacity. (b) The burden of proof by clear and convincing evidence is upon the petitioner, and a determination of incapacity shall be made before consideration of proper disposition. If the respondent stipulates to incapacity, the court may make a finding of incapacity without obtaining evidence from the expert appointed under AS 13.26.226(c). (c) If the respondent is found to be incapacitated, the court shall determine the extent of the incapacity and the feasibility of alternatives to guardianship to meet the needs of the respondent. (d) If it is found that alternatives to guardianship are feasible and adequate to meet the needs of the respondent, the court may dismiss the action and order an alternative form of protection. (e) If it is found that the respondent is able to perform some, but not all, of the functions necessary to care for the respondent, and alternatives to guardianship are not feasible or adequate to provide for the needs of the respondent, the court may appoint a partial guardian, but may not appoint a full guardian. (f) If it is found that the respondent is totally without capacity to care for the respondent and that a combination of alternatives to guardianship and the appointment of a partial guardian is not feasible or adequate to meet the needs of the respondent, the court may appoint a full guardian. (g) If it is necessary to appoint a guardian, the court shall consider the ward's preference. (h) At the time a guardian is appointed, the court shall make a reasonable effort to acquaint the ward with the ward's right to request, at a later time, the guardian's dismissal or a modification of the guardianship order. The court shall provide a written statement to the ward, explaining the ward's rights and specifying the procedures to be followed in petitioning the court.
(a) A ward or respondent has a right to participate to the maximum extent possible in all judicial proceedings concerning the ward or respondent and to be free from the influence of psychotropic medication during the proceedings. (b) It is the responsibility of the attorney for the ward or respondent to determine if the ward or respondent is being treated with psychotropic medication the effects of which would continue during the judicial proceedings and, if so, to inform the court in writing a reasonable time before the hearing. (c) The court, upon receipt of the information provided under (b) of this section, shall require a medical examination of the ward or respondent, if the court determines that the medical examination is necessary, and shall determine the advisability of continuation or suspension of the treatment for the duration of the judicial proceedings. The court may make any appropriate order it considers necessary. The court in making its determination shall balance the interest of maximum participation of the ward or respondent in the hearings against the medical and rehabilitative needs of the ward or respondent. (d) If the ward or respondent is under the influence of psychotropic medication during the judicial proceeding determining capacity, the trier of fact shall take that fact into consideration in making its determination.
By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed by ordinary mail to the guardian's address as listed in the court records and to the guardian's address as then known to the petitioner.
(a) If the court or jury determines that a person is incapacitated and the services of a guardian are necessary, the court shall enter an order that (1) names the guardian and establishes a guardian-ward relationship; (2) includes findings of fact that support each grant of authority to the guardian; (3) adopts a guardianship plan. (b) The guardianship plan shall specify the authority that the guardian has with regard to (1) medical care for the ward's physical condition; (2) mental health treatment that the guardian considers to be in the ward's best interests; (3) housing for the ward with consideration of the following: (A) the wishes of the ward; (B) the preferability of allowing the ward to retain local community ties; and (C) the requirement for services to be provided in the least restrictive setting; (4) personal care, educational and vocational services necessary for the physical and mental welfare of the ward and to return the ward to full capacity; (5) application for health and accident insurance and any other private or governmental benefits to which the ward may be entitled to meet any part of the costs of medical, mental health, or related services provided to the ward; (6) physical and mental examinations necessary to determine the ward's medical and mental health treatment needs; and (7) control of the estate and income of the ward to pay for the cost of services that the guardian is authorized to obtain on behalf of the ward. (c) The guardianship plan may not be more restrictive of the liberty of the ward than is reasonably necessary to protect the ward from serious physical injury, illness or disease and to provide the ward with medical care and mental health treatment for physical and mental health. The guardianship plan shall be designed to encourage a ward to participate in all decisions that affect the ward and to act on the ward's own behalf to the maximum extent possible. The court may not assign a duty or power to a guardian unless the need for it has been proven to the satisfaction of the court and no less restrictive alternative or combination of alternatives is sufficient to satisfy the need. (d) The duration of the term of guardianship shall be determined by the court order. Upon receipt of a report or other information that requires further consideration, the court may order a review hearing if it determines that the hearing is in the best interests of the ward.
Within 90 days after distribution of the order of appointment as guardian, the guardian shall submit to the court a report. The report must describe the guardian's program for implementing the guardianship plan. The primary goal of the program described in the report must be, to the maximum extent possible, to develop or regain the ward's abilities to handle the ward's own affairs. The report must consider housing, medical care, and educational and vocational needs and resources. In developing the report, the guardian shall consult with the ward to the maximum extent possible. The report must specify the services that are necessary to meet the essential requirements for the ward's physical health or safety and the means for obtaining the services. The report must specify the manner in which the guardian will exercise and share decision-making authority and other items that will assist in fulfilling the needs of the ward, the terms of the guardianship order, and the duties of the guardian.
(a) A guardian shall submit a report to the court at least annually. In addition, every third year, the court shall appoint a visitor to file a report reviewing the guardianship during the period since the last visitor's report, if any. The guardian shall submit an additional report to the court when (1) the court orders it; (2) there is a significant change in the capacity of the ward to meet the essential requirements for health and safety or to protect the ward's rights; (3) the guardian resigns or is removed; (4) the guardianship is terminated; or (5) the ward requests it. (b) The report of the guardian must contain, but is not limited to, the following information: (1) the name and address of the ward and the guardian; (2) the ward's present mental, physical, and social conditions and present living arrangements and the ward's opinion of these arrangements; (3) changes in the capacity of the ward to meet essential requirements for physical health and safety; (4) the services being provided to the ward; (5) the significant actions taken by the guardian during the reporting period in regard to the ward; (6) a financial accounting of the estate that has been subject to the possession or control of the guardian; (7) a list of the number and nature of the contacts between the guardian and ward if the ward does not reside with the guardian; (8) any other information requested by the court or necessary or desirable in the opinion of the guardian. (c) The visitor report required by (a) of this section must include (1) the name and address of the ward and the guardian; (2) the services being provided to the ward by or through the guardian; (3) the significant actions taken by the guardian during the reporting period in regard to the ward; (4) a financial accounting of the estate that has been subject to the possession or control of the guardian; (5) a list of the number and nature of the contacts between the conservator and the ward if the ward does not reside with the guardian; (6) any other information requested by the court or necessary or desirable in the opinion of the visitor.
(a) The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, the removal or resignation of the guardian as provided in AS 13.26.286, or upon the expiration of the period specified by court order as the duration of the guardianship. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect a guardian's liability for prior acts nor an obligation to account for assets of the ward over which the guardian exercised control. (b) Notwithstanding (a) of this section, if a deceased ward does not have a living family member or if an individual interested in the ward is not available, the guardian of a ward who dies may arrange for the body of the ward to be transported to a funeral home and may make funeral and burial arrangements for the deceased ward. The guardian may also apply for assistance with burial expenses from the state or a municipality if the estate of the ward does not have sufficient money to pay for burial.
(a) On petition of the ward, the guardian, or any person interested in the ward's welfare, or on the court's own motion, the court may (1) review and amend a decision of a guardian; or (2) if alternatives that are less restrictive than guardianship or less restrictive than the existing guardianship plan would assist the ward in meeting essential requirements for physical health and safety, modify the provisions of its order to (A) amend the guardianship plan or the responsibilities of the guardian; (B) remove a guardian and appoint a successor; or (C) terminate the guardianship. On petition of the guardian, the court may accept a resignation and make any other order that may be appropriate. (b) The ward, the guardian, or any person interested in the ward's welfare may petition for an order that the ward is no longer incapacitated or no longer incapacitated to the same extent as the ward was when the original guardianship order was made or when the court last amended the guardianship order, and for removal or resignation of the guardian, termination of the guardianship, or a change in the responsibilities of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be held in contempt of court. (c) Before removing a guardian, changing the guardian's responsibilities, accepting the resignation of a guardian, or ordering that a ward's guardianship be changed or terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian and applying the least restrictive alternative necessary to meet the needs of the ward after consideration of alternatives to guardianship services, may send a visitor to the residence of the present guardian and to the place where the ward resides or is detained, to observe conditions and report in writing to the court. (d) If at any time the ward requests or indicates to the guardian or to the agency responsible for the ward's care or its employee that the ward desires a change in guardianship, the guardian or the agency providing care shall inform the court of the request or indication. (e) If the guardian dies, or if on the basis of a petition filed under this section or a report or other information, there is probable cause to believe a guardian is not performing the guardian's responsibilities effectively and there is an imminent danger that the physical health or safety of the ward will be seriously impaired, the court shall take whatever action is necessary to protect the ward, including the dismissal of the guardian and appointment of a temporary guardian without a hearing.
(a) Subject to (d) of this section, the Alaska Court System shall bear the costs of the visitor and expert appointed under AS 13.26.226(c). (b) Subject to (c) and (d) of this section, the respondent shall bear the costs of the attorney appointed under AS 13.26.226(b), of the expert appointed under AS 13.26.241(d), of the guardian ad litem appointed under AS 13.26.041, and of other court and guardianship costs incurred under this chapter. (c) The state shall pay all or part of the costs described in (b) of this section if the court finds that the payment is necessary to prevent the respondent from suffering financial hardship or from becoming dependent upon a government agency or a private person or agency. (d) The court may require the petitioner to pay all or some of the costs described in (a) and (b) of this section if the court finds that the petitioner initiated a proceeding under this chapter that was malicious, frivolous, or without just cause.
(a) In a proceeding for the appointment, change in responsibilities, or removal of a guardian, or termination of guardianship, other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing shall be given to each of the following: (1) the ward or respondent by the visitor as provided in AS 13.26.231; (2) any person who is serving as guardian or conservator of the ward or respondent, or who has care and custody of the ward or respondent; (3) in case a person is not notified under (4) of this subsection, at least one of the closest adult relatives of the ward or respondent, if any can be found; (4) the spouse, parents, and adult children of the ward or respondent; (5) any person who performed an evaluation for the visitor's report within the previous two years; (6) the ward's or respondent's attorney; and (7) the ward's or respondent's guardian ad litem if one has been appointed. (b) Notice shall be served personally, by certified mail, or by any other method authorized by court rule on the ward's or respondent's spouse and parents if they can be found within the state. Except as provided in (a)(1) of this section, notice to the spouse and parents, if they cannot be found within the state, and to all other persons shall be given as provided in AS 13.06.110. (c) The notice must set out the date, time, place, purpose, and possible consequences of the hearing and the rights of the ward or respondent and any other parties to the proceedings.
(a) If during the pendency of an initial petition for guardianship it appears that the respondent is in need of immediate services to protect the respondent against serious injury, illness, or disease and the respondent is not capable of procuring the necessary services, the petitioner may request the appointment of a temporary guardian to authorize the services. The request shall state the reasons and factual basis for the request. The petitioner shall immediately file the request with the court and serve copies on the respondent and the respondent's attorney. The court shall conduct a hearing within 72 hours after the filing. (b) At the temporary guardianship hearing, the respondent shall have the rights set out in AS 13.26.251(a). (c) The burden of proof at the hearing shall be by clear and convincing evidence and shall be upon the petitioner. (d) If the court determines that a temporary guardian should be appointed, it shall make the appointment and grant to the guardian only the authority that is least restrictive upon the liberty of the respondent and that enables the temporary guardian to provide the emergency services necessary to protect the respondent from serious injury, illness, or disease. (e) The temporary guardianship shall expire at the time of the appointment of a full or partial guardian or upon the dismissal of the petition for guardianship. (f) If no guardianship petition is pending but the court is informed of a person who is apparently incapacitated and in need of emergency life-saving services, the court may authorize the services upon determining that delay until a guardianship hearing can be held would entail a life-threatening risk to the person.
Notwithstanding the limits of a temporary guardianship or guardianship order, a temporary guardian and guardian at all times have the right to authorize the provision of emergency life-saving services. This right includes the power to authorize hospitalization without advance court approval.
(a) The court may appoint a competent person, including a private professional guardian, or the public guardian, as the guardian of an incapacitated person. (b) The court may not appoint a person to be a guardian of an incapacitated person if the person (1) provides, or is likely to provide during the guardianship period, substantial services to the incapacitated person in a professional or business capacity, other than in the capacity as guardian; (2) is, or is likely to become during the guardianship period, a creditor of the incapacitated person, other than in the capacity as guardian; (3) has, or is likely to have during the guardianship period, interests that may conflict with those of the incapacitated person; or (4) is employed by a person who would be disqualified under (1) - (3) of this subsection. (c) A person may be appointed as the guardian of an incapacitated person notwithstanding the provisions of (b) of this section if the person is the spouse, adult child, parent, or sibling of the incapacitated person and the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the best interests of the incapacitated person. When appointing a relative or friend of the incapacitated person as the guardian of an incapacitated person, the court shall require that the proposed guardian complete one hour of mandatory education on the basics of guardianship before the appointment or within 30 days after the appointment. (d) Subject to (e) and (f) of this section, qualified persons have priority for appointment as guardian in the following order: (1) an individual or organization nominated by the incapacitated person if, at the time of the nomination, the incapacitated person had, in the opinion of the court, sufficient mental capacity to make an informed choice; (2) the spouse of the incapacitated person; (3) an adult child or parent of the incapacitated person; (4) a relative of the incapacitated person with whom the incapacitated person has resided for more than six months during the year before the filing of the petition; (5) a relative or friend who has demonstrated a sincere, longstanding interest in the welfare of the incapacitated person; (6) a private professional guardian; (7) the public guardian. (e) When more than one person has equal priority under (d) of this section, the court shall select the person it considers to be the best qualified. (f) When in the best interest of the incapacitated person, a court may decline to appoint a person who has priority under (d) of this section as guardian of an incapacitated person and may appoint as guardian a person who has a lower priority than another person or who does not have a priority. If the court appoints a person with a lower priority under (d) of this section than another person, the court shall make appropriate written findings related to why the best interests of the respondent require appointment of the person with a lower priority.
(a) A guardian shall diligently and in good faith carry out the specific duties and powers assigned by the court. In carrying out duties and powers, the guardian shall encourage the ward to participate to the maximum extent of the ward's capacity in all decisions that affect the ward, to act on the ward's own behalf in all matters in which the ward is able, and to develop or regain, to the maximum extent possible, the capacity to meet the essential requirements for physical health or safety, to protect the ward's rights, and to manage the ward's financial resources. (b) A partial guardian of an incapacitated person has only the powers and duties respecting the ward enumerated in the court order. (c) A full guardian of an incapacitated person has the same powers and duties respecting the ward that a parent has respecting an unemancipated minor child except that the guardian is not liable for the care and maintenance of the ward and is not liable, solely by reason of the guardianship, to a person who is harmed by acts of the ward. Except as modified by order of the court, a full guardian's powers and duties include, but are not limited to, the following: (1) the guardian is entitled to custody of the person of the ward and shall assure that the ward has a place of abode in the least restrictive setting consistent with the essential requirements for the ward's physical health and safety; (2) the guardian shall assure the care, comfort, and maintenance of the ward; (3) the guardian shall assure that the ward receives the services necessary to meet the essential requirements for the ward's physical health and safety and to develop or regain, to the maximum extent possible, the capacity to meet the ward's needs for physical health and safety; (4) the guardian shall assure through the initiation of court action and other means that the ward enjoys all personal, civil, and human rights to which the ward is entitled; (5) the guardian may give consents or approvals necessary to enable the ward to receive medical or other professional care, counsel, treatment, or services except as otherwise limited by (e) of this section; (6) the guardian has the powers and duties of a conservator under this chapter; however, the guardian may not apply the ward's money or property for the services as guardian or for room and board that the guardian or the guardian's spouse, parent, or child has furnished the ward unless, before payment, the court finds that the ward is financially able to pay and that the charge is reasonable; notice of a request for payment approval shall be provided to at least one relative of the ward if possible; the guardian shall exercise care to conserve any excess money or property for the ward's needs; (7) if a conservator of the estate of the ward has also been appointed, the guardian shall pay all of the ward's estate received by the guardian to the conservator for management as provided in AS 13.26.401 - 13.26.575. (d) A guardian of a ward, for whom a conservator has also been appointed, shall have the custody and care of the ward and is entitled to receive reasonable sums for services and for room and board furnished to the ward as agreed upon between the guardian and the conservator. The guardian may request the conservator to expend the ward's estate for the ward's care and maintenance. (e) A guardian may not (1) place the ward in a facility or institution for the mentally ill other than through a formal commitment proceeding under AS 47.30 in which the ward has a separate guardian ad litem; (2) consent on behalf of the ward to an abortion, sterilization, psychosurgery, or removal of bodily organs except when necessary to preserve the life or prevent serious impairment of the physical health of the ward; (3) consent on behalf of the ward to the withholding of lifesaving medical procedures; however, a guardian is not required to oppose the cessation or withholding of lifesaving medical procedures when those procedures will serve only to prolong the dying process and offer no reasonable expectation of effecting a temporary or permanent cure of or relief from the illness or condition being treated unless the ward has clearly stated that lifesaving medical procedures not be withheld; a guardian is not civilly liable for acts or omissions under this paragraph unless the act or omission constitutes gross negligence or reckless or intentional misconduct; (4) consent on behalf of the ward to the performance of an experimental medical procedure or to participation in a medical experiment not intended to preserve the life or prevent serious impairment of the physical health of the ward; (5) consent on behalf of the ward to termination of the ward's parental rights; (6) prohibit the ward from registering to vote or from casting a ballot at public election; (7) prohibit the ward from applying for and obtaining a driver's license; (8) prohibit the marriage or divorce of the ward.
Upon petition and after notice and hearing in accordance with the provisions of AS 13.26.401 - 13.26.575, the court may appoint a conservator or issue another protective order for cause as follows: (1) appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that (A) a minor owns money or property that requires management or protection that cannot otherwise be provided; (B) the minor has or may have business affairs that may be jeopardized or prevented by the status of being a minor; or (C) funds are needed for the minor's support and education and protection is necessary or desirable to obtain or provide funds; (2) appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that (A) the person is unable to manage the person's property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, fraud, confinement, detention by a foreign power, or disappearance; and (B) the person has property that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by the person and protection is necessary or desirable to obtain or provide funds.
Except as otherwise provided under AS 13.27.110, after the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has exclusive jurisdiction to determine (1) the need for a conservator or other protective order until the proceedings are terminated; and (2) how the estate of the protected person that is subject to the laws of this state shall be managed, expended, or distributed to or for the use of the protected person or any of the person's dependents.
Venue for proceedings under AS 13.26.401 - 13.26.575 is (1) in the place in this state where the person to be protected resides whether or not a guardian has been appointed in another place; or (2) if the person to be protected does not reside in this state, in any place where the person has property.
(a) The person to be protected, a person's attorney or other legal representative, any person who is interested in the estate, affairs, or welfare of the person to be protected, including a parent, guardian, custodian, or caregiver, the Department of Health, or any person who would be adversely affected by lack of effective management of the property and affairs of the person to be protected, may petition for the appointment of a conservator or for other appropriate protective order. (b) The petition must set out to the extent known, the interest of the petitioner; the name, age, residence and address of the person to be protected; the name and address of the person's guardian, if any; the name and address of the person's nearest relative known to the petitioner; a general statement of the person's property with an estimate of its value, including any compensation, insurance, pension or allowance to which the person is entitled; and the reason why appointment of a conservator or other protective order is necessary. If the appointment of a conservator is requested, the petition also must set out the name and address of the person whose appointment is sought and the basis of priority for appointment. (c) The petition may include a request for temporary conservatorship as provided in AS 13.26.445 if it appears that the respondent's property is likely to be wasted or dissipated during the pendency of the conservatorship proceeding. A request for temporary conservatorship must specify the facts that cause the petitioner to believe that a temporary conservatorship is necessary.
(a) On a petition for appointment of a conservator or other protective order, the person to be protected and the person's spouse or, if none, the person's parents, must be served personally, by certified mail, or by any other method authorized by court rule with notice of the proceedings at least 14 days before the date of hearing if they can be found within the state, or, if they cannot be found within the state, they must be given notice in accordance with AS 13.06.110. Waiver by the person to be protected is not effective unless the person to be protected attends the hearing or, unless minority is the reason for the proceeding, waiver is confirmed in an interview with the visitor. (b) Notice of a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to any person who has filed a request for notice under AS 13.26.425 and to interested persons and other persons as the court may direct. Except as otherwise provided in (a) of this section, notice shall be given in accordance with AS 13.06.110. (c) This section does not apply to a petition or order for an ex parte protective order filed under AS 13.26.450 or a temporary protective order filed under AS 13.26.455.
Any interested person who desires to be notified before any order is made in a protective proceeding may file with the registrar a request for notice subsequent to payment of any fee required by statute or court rule. The clerk shall mail a copy of the demand to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and the person's address, or that of the person's attorney, and is effective only as to matters occurring after the filing. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings.
(a) Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if 14 years of age or older. A lawyer appointed by the court to represent a minor has the powers and duties of a guardian ad litem. (b) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected has counsel of the person's own choice, the court must appoint a lawyer to represent the person. If the alleged disability is mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, or chronic intoxication, the court may direct that the person to be protected be examined by a physician designated by the court, preferably a physician who is not connected with any institution in which the person is a patient or is detained. The court may send a visitor to interview the person to be protected. The visitor may be a guardian ad litem or an officer or employee of the court. (c) After hearing, upon finding that a basis for the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate protective order. (d) The court shall investigate alternatives to a conservator and the use of a special conservator as provided in AS 13.26.440(c). A conservator may be appointed only if a less restrictive protective order or the services of a special conservator are not adequate to protect the estate of the protected person. The court shall, to the extent possible, consult with the protected person in determining what action should be taken.
The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons: (1) while a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for the person's benefit or the benefit of the person's dependents; (2) after hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, the minor's family and members of the minor's household; (3) after hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of the person's household, all the powers over the person's estate and affairs which the person could exercise if present and not under disability, except the power to make a will; these powers include, but are not limited to, power to make gifts, to convey or release contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to exercise or release powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment, to enter into contracts, to create revocable or irrevocable trusts of property of the estate which may extend beyond the person's disability or life, to exercise options of the disabled person to purchase securities or other property, to exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value, to exercise the right to an elective share in the estate of a deceased spouse, and to renounce any interest by testate or intestate succession or by inter vivos transfer; (4) the court may exercise, or direct the exercise of its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding 20 percent of any year's income of the estate, or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person, and that the protected person either is incapable of consenting or has consented to the proposed exercise of power; (5) an order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person.
(a) If it is established in a proper proceeding that a basis exists as described in AS 13.26.401 for affecting the property and affairs of a person the court, without appointing a conservator, may authorize, direct, or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit, or retention of funds or property, sale, mortgage, lease, or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust. (b) When it has been established in a proper proceeding that a basis exists as described in AS 13.26.401 for affecting the property and affairs of a person the court, without appointing a conservator, may authorize, direct, or ratify any contract, trust, or other transaction relating to the protected person's financial affairs or involving the person's estate if the court determines that the transaction is in the best interests of the protected person. (c) Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of the protected person's disability, whether the protected person needs the continuing protection of a conservator. If only certain powers need be given to the conservator or the services of a conservator are needed only for a limited number of transactions, a special conservator may be appointed. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters carried out under the order of appointment.
(a) If, during the pendency of an initial petition for conservatorship, it appears that the respondent is in need of a protective order to protect the respondent against waste or dissipation of funds or property, or to obtain funds that are needed for the immediate support, care, and welfare of the respondent or persons entitled to be supported by the respondent, and the respondent is not capable of protecting the respondent's funds or property or obtaining the funds that are needed to support the respondent or persons whom the respondent is required to support, the petitioner may request the appointment of a temporary conservator to authorize the protection or to obtain the necessary funds. The request must state the reasons and factual basis for the request. The petitioner shall immediately file the request with the court and serve copies on the respondent and the respondent's attorney and other persons as ordered by the court. The court shall appoint an attorney for a respondent who is unrepresented to be at the hearing and conduct a hearing within 72 hours after the filing. (b) If the court determines that a temporary conservator should be appointed, it shall make the appointment and grant to the temporary conservator only the authority that is least restrictive upon the liberty of the respondent and that enables the temporary conservator to provide the protection or authority necessary to protect the respondent from waste or dissipation of funds or property or to obtain the funds necessary for support. (c) The temporary conservatorship expires at the time of the appointment of a full or partial conservator or on the dismissal of the petition for conservatorship.
(a) A person who is allowed to file a petition for a protective order under AS 13.26.415(a) may file a petition for an ex parte protective order against a person other than the protected person. A petition filed on behalf of a protected person by a person other than the protected person must be accompanied by proof of service of the petition on the protected person or the person's attorney unless service would cause an immediate threat of harm to the best interests of the protected person and the petition includes a written explanation of the harm. If the court finds that the petition establishes probable cause that the respondent is financially defrauding the petitioner or a person for whose benefit the petitioner filed the petition and that, because of the fraud, there has been or is an immediate threat of a waste or dissipation of the proposed protected person's funds or other property, the court shall ex parte and without notice to the respondent issue a protective order. The petitioner shall certify to the court in writing any effort that the petitioner made to provide notice to the respondent. (b) An ex parte protective order under this section may (1) grant any protection described in AS 13.26.435; (2) supersede an existing power of attorney; (3) prohibit the respondent from having any direct or indirect contact with the petitioner or other person for whose benefit the petitioner filed the petition; and (4) prohibit the respondent from taking any act with respect to the funds or other property of the petitioner or other person for whose benefit the petitioner filed the petition. (c) An ex parte protective order expires 20 days after it is issued, unless dissolved earlier by the court at the request of the petitioner or respondent and after notice and, if requested, a hearing, or on the earlier appointment of a temporary or permanent conservator.
On application filed with the court before the expiration of a 20-day ex parte protective order issued under AS 13.26.450, the court shall schedule a hearing on whether to convert the protective order to a temporary order effective for up to six months. The court shall provide to the protected person and the respondent at least 10 days' notice of the hearing and the respondent's right to appear and be heard. If the court finds by a preponderance of the evidence that the respondent has committed fraud against the petitioner or the person for whose benefit the petition was filed, regardless of whether the respondent appears at the hearing, the court may convert the ex parte protective order to a temporary protective order effective for up to six months.
(a) The petitioner, respondent, or protected person, if the protected person is a vulnerable adult, may request modification of a protective order issued under AS 13.26.450 - 13.26.460. Except as provided in (b) of this section, if a request is made for modification of (1) an ex parte protective order issued under AS 13.26.450, the court shall schedule a hearing on three days' notice or on shorter notice as the court may prescribe; or (2) a temporary protective order, after notice and hearing under AS 13.26.455, the court shall schedule a hearing within 20 days after the date the request is made, except that, if the court finds that the request is meritless on its face, the court may deny the request without a hearing. (b) If a request for a modification is made under this section and the respondent raises an issue not raised by the petitioner, the court may allow the petitioner additional time to respond. (c) If the court modifies a protective order, the court shall issue a modified order and shall make reasonable efforts to ensure that the order is understood by the petitioner, the respondent, and the protected person who are present at the hearing. (d) The court shall cause a copy of a protective order, any related orders, and a scheduling order, if any, to be served on the respondent and the protected person and have a protective order and any related order delivered to the appropriate local law enforcement agency for expedited entry in the central registry under AS 18.65.540. (e) A protective order issued under AS 13.26.450 - 13.26.460 is in addition to any other civil or criminal remedy. (f) A third party that has received actual or legal notice of a protective order issued under AS 13.26.450 - 13.26.460 shall comply with the order. A third party who does not comply with a protective order granted under AS 13.26.450 - 13.26.460 may be liable in a civil action to the protected person or the protected person's heirs, assigns, or estate for a civil penalty not to exceed $1,000, plus the actual damages, costs, and fees associated with the failure to comply with the protective order. A third party who does not comply with a protective order granted under AS 13.26.450 - 13.26.460 may also be criminally liable under AS 11.56.740 for violating a protective order. As used in this section, actual or legal notice means delivery by mail or facsimile at the most recently known place of residence or business of the third party. (g) The Alaska Court System, after consulting with the Department of Health, the office of public advocacy, the office of elder fraud and assistance, the long term care ombudsman, and other interested persons and organizations, shall prepare forms for petitions and protective orders and instructions for use of the forms by a person seeking a protective order under AS 13.26.450 - 13.26.460. The forms must conform to the Alaska Rules of Probate Procedure and Alaska Rules of Civil Procedure, except that information on the forms may be filled in by legible handwriting. The office of the clerk of each superior and district court shall make available to the public the forms a person seeking a protective order may need and instructions for the use of the forms. The clerk shall provide assistance in completing and filing the forms. (h) Filing fees may not be charged for a petition under AS 13.26.450, for an application under AS 13.26.455, or for a request for modification of a protective order under AS 13.26.460(a).
(a) The court may appoint a competent person, including a private professional conservator, private professional full guardian under AS 08.26.020, or the public guardian, as the conservator of the estate of a protected person. (b) The court may not appoint a person to be a conservator of a protected person if the person (1) provides, or is likely to provide during the conservatorship, substantial services to the protected person in a professional or business capacity, other than in the capacity of conservator; (2) is or is likely to become, during the conservatorship, a creditor of the protected person, other than in the capacity of conservator; (3) is likely to have, during the conservatorship, interests that may conflict with those of the protected person; or (4) is employed by a person who would be disqualified under (1) - (3) of this subsection. (c) A person may be appointed as the conservator of a protected person even if (b) of this section applies if the person is the spouse, adult child, parent, or sibling of the protected person and if the court determines that the potential conflict of interest is not substantial and that the appointment would clearly be in the best interests of the protected person. (d) Subject to (e) and (f) of this section, qualified persons have priority for appointment in the following order: (1) an individual or qualified conservator nominated by the protected person if the protected person is 14 or more years of age and had, in the opinion of the court, sufficient mental capacity to make an informed choice; (2) the spouse of the protected person; (3) an adult child or a parent of the protected person; (4) a relative of the protected person with whom the protected person has resided for more than six months during the year before the filing of the petition; (5) a relative or friend of the protected person who has demonstrated a sincere and longstanding interest in the welfare of the protected person; (6) a private professional conservator; (7) the public guardian. (e) When more than one person has equal priority under (d) of this section, the court shall select the person it considers to be the best qualified. (f) When in the best interest of the protected person, a court may decline to appoint a person who has priority under (d) of this section as conservator of the protected person and may appoint as conservator a person who has a lower priority than another person or who does not have a priority. If the court appoints a person with a lower priority under (d) of this section than another person, the court shall make appropriate written findings related to why the best interests of the respondent require appointment of the person with a lower priority. (g) In addition to any other requirement of this section, when appointing a relative or friend of the protected person as the conservator of the protected person, the court shall require that the proposed conservator complete one hour of mandatory education on the basics of conservatorship before the appointment or within 30 days after the appointment. If the person is appointed based on the person's agreement to complete the mandatory education and the person fails to complete the mandatory education within the 30 days, the court shall remove the conservator and appoint a successor.
(a) The court may require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the trust according to law, with sureties as it shall specify. Unless otherwise directed, the bond shall be in the amount of the aggregate capital value of the property of the estate in the conservator's control plus one year's estimated income minus the value of securities deposited under arrangements requiring an order of the court for their removal and the value of any land which the fiduciary, by express limitation of power, lacks power to sell or convey without court authorization. The court in place of sureties on a bond, may accept other security for the performance of the bond, including a pledge of securities or a mortgage of land. (b) If the public guardian is appointed as a conservator, the court may not require a bond under this section. (c) If the court requires a conservator to provide a bond under this section and the conservator is financially unable to provide the bond, the court may order the cost of the bond to be paid from court funds.
(a) The following requirements and provisions apply to any bond required under AS 13.26.470: (1) unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the conservator and with each other; (2) by executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant; notice of any proceeding shall be delivered to the surety or mailed by registered or certified mail to the surety at the address as listed with the court where the bond is filed and to the surety's address as then known to the petitioner; (3) on petition of a successor conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator; (4) the bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted. (b) A proceeding may not be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator, or mailed by registered or certified mail to the conservator at the address as listed in the petition for appointment or as thereafter reported to the court and to the conservator's address as then known to the petitioner.
If not otherwise compensated for services rendered, any visitor, lawyer, physician, conservator, or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the estate.
The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After death, resignation, or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of the conservator's predecessor.
(a) Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order (1) requiring bond or security or additional bond or security, or reducing bond; (2) requiring an accounting for the administration of the trust; (3) directing distribution; (4) removing the conservator and appointing a temporary or successor conservator; or (5) granting other appropriate relief. (b) A conservator may petition the appointing court for instructions concerning the fiduciary responsibility of the conservator. (c) Upon notice and hearing, the court may give appropriate instructions or make any appropriate order.
In the exercise of powers, a conservator shall act as fiduciary and shall observe the standards of care applicable to trustees under AS 13.36.225 - 13.36.290.
Within 90 days after distribution of the order of appointment, every conservator shall prepare and file with the appointing court a conservator implementation report and a complete inventory of the estate of the protected person together with an oath or affirmation that it is complete and accurate so far as the conservator is informed. The conservator shall provide a copy of it to the protected person if the protected person can be located, has attained the age of 14 years, and has sufficient mental capacity to understand these matters, and to any parent or guardian with whom the protected person resides. The conservator shall keep suitable records of the administration and exhibit them on request of any interested person.
A conservator shall submit a report to the court at least every year. In addition, a conservator shall account to the court for administration of the trust upon resignation or removal and at other times as the court may direct. On termination of the protected person's minority or disability, a conservator may account to the court or to the former protected person or the protected person's personal representative. Subject to appeal or vacation within the time permitted, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to the conservator's liabilities concerning the matters considered in connection with it; and an order, made upon notice and hearing, allowing a final account, adjudicates as to all previously unsettled liabilities of the conservator to the protected person or the protected person's successors relating to the conservatorship. In connection with any account, the court may require a conservator to submit to a physical check of the estate in the conservator's control, to be made in any manner the court may specify.
(a) The initial visitor report of a visitor appointed under AS 13.26.430(b) must include (1) the results and analyses of medical and other tests and examinations performed that describe the proposed protected person's mental, emotional, physical, and educational condition, adaptive behavior, and social skills, and that specify the data on which the description is based; (2) recommendations regarding the types and extent of assistance, if any, necessary to meet the essential requirements for managing the property and affairs of the proposed protected person; (3) an evaluation of the proposed protected person's need for mental health treatment and whether there is a substantial probability that available treatment will significantly improve the proposed protected person's mental condition; (4) an evaluation of the proposed protected person's need for educational or vocational assistance and whether the assistance can be made available to the protected person; (5) an evaluation of the probability that the incapacity may significantly lessen, and the type of services or treatment that will facilitate improvement in the condition or skills of the proposed protected person; (6) a list of the names and addresses of all individuals who examined, interviewed, or investigated the proposed protected person, and the names and addresses of all persons contacted in preparation of the visitor report; (7) a summary of the information that (A) was supplied by the person described in (6) of this subsection; and (B) supports the conclusions of the visitor report; (8) a description of the alternatives to conservatorship that were considered and not recommended and an explanation of why they are not feasible to meet the needs of the proposed protected person; (9) a specification of the financial resources of the proposed protected person, the proposed protected person's entitlements to insurance benefits, and publicly operated or sponsored health, mental health, and welfare assistance that might be employed in the provision of services to the proposed protected person; and (10) if conservatorship is recommended, a conservatorship outline that identifies (A) potential conservators; (B) the specific services necessary and available to protect the proposed protected person from serious damage to the proposed protected person's property and affairs; (C) the means by which the services described in (B) of this paragraph may be financed; (D) the specific, least restrictive authority needed by the conservator to provide the services described in (B) of this paragraph. (b) In addition to any initial visitor report provided under (a) of this section, every third year, the court may appoint a visitor to file a report reviewing the conservatorship during the period since the last visitor report, if any. (c) In addition to the reports under (a) and (b) of this section, at any time during a conservatorship, a court may appoint a visitor to file a report reviewing the conservatorship during the period since the last visitor report, if any. (d) A visitor report provided under (b) or (c) of this section must include (1) the name and address of the protected person and the conservator; (2) the services being provided to the protected person by or through the conservator; (3) the significant actions taken by the conservator during the reporting period in regard to the protected person; (4) a financial accounting of the estate that has been subject to the possession or control of the conservator; (5) a list of the number and nature of the contacts between the conservator and the protected person if the protected person does not reside with the conservator; (6) any other information requested by the court or necessary or desirable in the opinion of the visitor.
The appointment of a conservator vests in the conservator title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys-in-fact. The appointment of a conservator is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of any rights or interest, but this section does not restrict the ability of persons to make specific provision by contract or dispositive instrument relating to a conservator.
Letters of conservatorship are evidence of transfer of all assets of a protected person to the conservator. An order terminating a conservatorship is evidence of transfer of all assets of the estate from the conservator to the protected person, or the protected person's successors. Subject to the requirements of general statutes governing the recordation of documents of title to land or other property, letters of conservatorship, and orders terminating conservatorships, may be recorded to give record notice of title as between the conservator and the protected person.
Any sale or encumbrance to a conservator, the conservator's spouse, agent, or attorney, or any corporation or trust in which the conservator has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest is voidable unless the transaction is approved by the court after notice to interested persons and others as directed by the court.
A person who in good faith either assists a conservator or deals with the conservator for value in any transaction other than those requiring a court order as provided in AS 13.26.435, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in AS 13.26.550 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
(a) A conservator has all of the powers conferred herein and any additional powers conferred by law on trustees in this state. In addition, a conservator of the estate of an unmarried minor, as to whom no one has parental rights, has the duties and powers of a guardian of a minor described in AS 13.26.167 until the minor attains the age of 18 or marries, but the parental rights so conferred on a conservator do not preclude appointment of a guardian as provided by AS 13.26.101 - 13.26.186.  (b) A conservator has power without court authorization or confirmation, to invest and reinvest funds of the estate as would a trustee. (c) A conservator, acting reasonably in efforts to accomplish the purpose for which the conservator was appointed, may act, without court authorization or confirmation, to (1) collect, hold and retain assets of the estate including land in another state, until, in the conservator's judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which the conservator is personally interested; (2) receive additions to the estate; (3) continue or participate in the operation of any business or other enterprise; (4) acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest; (5) invest and reinvest estate assets in accordance with (b) of this section; (6) deposit estate funds in a bank including a bank operated by the conservator; (7) acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset; (8) make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings; (9) subdivide, develop, or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration; (10) enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship; (11) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement; (12) grant an option involving disposition of an estate asset, to take an option for the acquisition of any asset; (13) vote a security, in person or by general or limited proxy; (14) pay calls, assessments, and any other sums chargeable or accruing against or on account of securities; (15) sell or exercise stock subscription or conversion rights; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise; (16) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the stock so held; (17) insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons; (18) borrow money to be repaid from estate assets or otherwise; to advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets, and the conservator has a lien on the estate as against the protected person from advances so made; (19) pay or contest any claim; to settle a claim by or against the estate or the protected person by compromise, arbitration, or otherwise; and to release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible; (20) pay taxes, assessments, compensation of the conservator, and other expenses incurred in the collection, care, administration, and protection of the estate; (21) allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties; (22) pay any sum distributable to a protected person or the protected person's dependent, without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to the distributee's guardian or if none, to a relative or other person with custody of the distributee's person; (23) employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator to advise or assist the conservator in the performance of administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary; (24) prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of duties; and (25) execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.
(a) A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care, or benefit of the protected person and the protected person's dependents in accordance with the following principles: (1) the conservator is to consider recommendations relating to the appropriate standard of support, education, and benefit for the protected person made by a parent or guardian, if any; the conservator may not be surcharged for sums paid to persons or organizations actually furnishing support, education, or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless the conservator knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person; (2) the conservator is to expend or distribute sums reasonably necessary for the support, education, care, or benefit of the protected person with due regard to (A) the size of the estate, the probable duration of the conservatorship, and the likelihood that the protected person, at some future time, may be fully able to manage the protected person's affairs and the estate which has been conserved; (B) the accustomed standard of living of the protected person and members of the protected person's household; (C) other funds or sources used for the support of the protected person; (3) the conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person's household who are unable to support themselves and who are in need of support; (4) funds expended under this subsection may be paid by the conservator to any person, including the protected person to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances. (b) If the estate is ample to provide for the purposes implicit in the distributions authorized by (a) of this section, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts which do not exceed in total for any year 20 percent of the income from the estate. (c) When a minor who has not been adjudged disabled under AS 13.26.401(2) attains majority, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible. (d) When the conservator is satisfied that a protected person's disability (other than minority) has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the formerly protected person as soon as possible. (e) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person that may have come into the conservator's possession and inform the executor or a beneficiary named in the will that the will has been so delivered. Once a conservator knows that the protected person has died, the conservator may not exercise authority over the protected person's affairs and estate except to pay reasonable burial expenses and to preserve, account for, and transfer control of assets to a personal representative, a temporary property custodian appointed by the court, or a person authorized to take custody of personal property by affidavit under AS 13.16.680. If, after 40 days from the death of the protected person, no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative in order to proceed with administering and distributing the decedent's estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under AS 13.16.070 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section has the effect of an order of appointment of a personal representative as provided in AS 13.16.115 and 13.16.245 - 13.16.655 except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.
Subject to the restrictions in AS 13.26.435(4), the court may confer on a conservator at the time of appointment or later, in addition to the powers conferred by AS 13.26.540 and 13.26.545, any power which the court itself could exercise under AS 13.26.435(2) and (3). The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by AS 13.26.540 and 13.26.545 or previously conferred by the court, and may at any time relieve the conservator of any limitation. If the court limits any power conferred on the conservator by AS 13.26.540 and 13.26.545, the limitation shall be endorsed upon the letters of appointment.
In investing the estate, and in selecting assets of the estate for distribution under AS 13.26.545(a) and (b), in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, including a will, any revocable trust of which the protected person is settlor, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at death to another or others which the protected person may have originated. The conservator may examine the will of the protected person.
(a) Subject to AS 13.26.545(e), a conservator shall pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship was established upon their presentation and allowance. A claim is considered presented on the first to occur of receipt of the written statement of claim by the conservator or the filing of the claim with the court. A presented claim is allowed if it is not disallowed by written statement mailed by the conservator to the claimant within 60 days after its presentation. The presentation of a claim tolls any statute of limitations relating to the claim until 30 days after its disallowance. A claim may be presented by either of the following methods: (1) the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed; (2) the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court and deliver or mail a copy of the statement to the conservator. (b) A claimant whose claim has not been paid may petition the court for determination of the claim at any time before it is barred by the applicable statute of limitation, and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is pending against a protected person at the time of appointment of a conservator or is initiated against the protected person thereafter, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate. (c) If it appears that the estate in a conservatorship is likely to be exhausted before all existing claims are paid, preference is to be given to prior claims for the care, maintenance, and education of the protected person or the protected person's dependents and existing claims for expenses of administration.
(a) Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in a fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the representative capacity and identify the estate in the contract. (b) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if personally at fault. (c) Claims based on contracts entered into by a conservator in a fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in the fiduciary capacity, whether or not the conservator is individually liable for them. (d) Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.
The protected person, the protected person's personal representative, the conservator, or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. The court, upon determining after notice and hearing that the minority or disability of the protected person has ceased, may terminate the conservatorship. Upon termination, title to assets of the estate passes to the former protected person or to the person's successors subject to provision in the order for expenses of administration or to conveyances from the conservator to the former protected person or the person's successors, to evidence the transfer.
(a) Any person indebted to a protected person, or having possession of property or of an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of the fiduciary's appointment and an affidavit made by the fiduciary or on the fiduciary's behalf stating: (1) that no protective proceeding relating to the protected person is pending in this state; and (2) that the foreign conservator is entitled to payment or to receive delivery. (b) If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this state, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.
If no local conservator has been appointed and no petition in a protective proceeding is pending in this state, a domiciliary foreign conservator may file with a court in this state in a judicial district in which property belonging to the protected person is located, authenticated copies of appointment and of any official bond given. Thereafter, the domiciliary foreign conservator may exercise as to assets in this state all powers of a local conservator and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.
In AS 13.26.401 - 13.26.595, unless the context requires otherwise, fraud means (1) robbery, extortion, and coercion under AS 11.41.500 - 11.41.530; (2) offenses against property under AS 11.46.100 - 11.46.740; or (3) exploitation of another person or another person's resources for personal profit or advantage if no significant benefit accrues to the person who is exploited.
(a) A power of attorney executed in this state is valid if the principal (1) signs the power of attorney or, if the principal is physically unable to sign the power of attorney, directs, in the principal's conscious presence, another individual to sign the principal's name on the power of attorney; and (2) acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments. (b) Notwithstanding AS 44.50.062(5)(A), a notary public may consider that the principal has signed a power of attorney if the principal is physically unable to sign the power of attorney, and, in the presence of the notary public, directs another individual to sign under (a)(1) of this section.
(a) Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance. (b) An agent that violates a provision in AS 13.26.600 - 13.26.695 is liable to the principal or the principal's successors in interest for the amount required to (1) restore the value of the principal's property to what it would have been had the violation not occurred; and (2) reimburse the principal or the principal's successors in interest for the attorney fees and costs paid on the agent's behalf.
(a) Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall (1) act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest; (2) act in good faith; and (3) act only within the scope of authority granted in the power of attorney. (b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall (1) act loyally for the principal's benefit; (2) act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest; (3) act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; (4) keep a record of all receipts, disbursements, and transactions made on behalf of the principal; (5) cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and otherwise act in the principal's best interest; and (6) attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including (A) the value and nature of the principal's property; (B) the principal's foreseeable obligations and need for maintenance; (C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and (D) eligibility for a benefit, a program, or assistance under a statute or regulation. (c) An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan. (d) An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal. (e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances. (f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines. (g) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person. (h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, the personal representative or successor in interest of the principal's estate. If so requested, within 30 days, the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.
(a) A third party asked to accept a power of attorney may request, and rely upon, without further investigation (1) an agent's certification under penalty of perjury of any factual matter concerning the principal, agent, or power of attorney; (2) an English translation of the power of attorney if the power of attorney contains, in whole or in part, a language other than English; and (3) an opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request. (b) An English translation or an opinion of counsel requested under this section must be provided at the principal's expense unless the request is made more than five business days after the power of attorney is presented for acceptance. (c) For purposes of this section, a person that conducts activities through employees is without actual knowledge of a fact relating to a principal, agent, or power of attorney if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact. (d) Except as otherwise provided in (e) of this section, (1) a person shall accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel under (a) of this section not later than five business days after presentation of the power of attorney for acceptance; (2) if a person requests a certification, a translation, or an opinion of counsel under (a) of this section, the person shall accept the power of attorney not later than three business days after receipt of the certification, translation, or opinion of counsel; and (3) a person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented. (e) Notwithstanding AS 13.26.600, a person is not required to accept an acknowledged power of attorney if (1) the person is not otherwise required to engage in a transaction with the principal in the same circumstances; (2) engaging in a transaction with the agent or principal in the same circumstances would be inconsistent with federal law; (3) the person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power; (4) a request for a certification, a translation, or an opinion of counsel under (a) of this section is refused; (5) the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under (a) of this section has been requested or provided; or (6) the person makes, or has actual knowledge that another person has made, a report to the Department of Health or other governmental agency, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent. (f) A person that refuses in violation of this section to accept an acknowledged power of attorney is subject to (1) a court order mandating acceptance of the power of attorney; and (2) liability as provided by court rules of this state for attorney fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.
(a) Except as provided in AS 13.26.625, a power of attorney terminates when (1) the principal dies; (2) there is an incapacity of the principal, if the power of attorney is not durable; (3) the principal revokes the power of attorney; (4) the power of attorney provides that it terminates; (5) the purpose of the power of attorney is accomplished; or (6) the principal revokes the agent's authority, there is an incapacity of the agent, the agent dies, or the agent resigns, and the power of attorney does not provide for another agent to act under the power of attorney. (b) Unless the power of attorney provides a different method for an agent's resignation, an agent may resign by giving notice to the principal and, if there is an incapacity of the principal, (1) to the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent; or (2) if there is no person described in (1) of this subsection, to (A) the principal's custodian or caregiver; (B) another person reasonably believed by the agent to have sufficient interest in the principal's welfare; or (C) a governmental agency having statutory authority to protect the welfare of the principal.
(a) The death or incapacity of a principal who has executed a power of attorney in writing does not revoke or terminate the agency as to the agent or other person who, without actual knowledge of the death or incapacity of the principal, acts in good faith under the power of attorney. Action so taken, unless otherwise invalid or unenforceable, binds the principal and the heirs, devisees, and personal representatives of the principal. (b) An affidavit executed by the agent stating that the agent did not have, at the time of doing an act under the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death or incapacity, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power of attorney at that time. If the exercise of the power of attorney requires execution and delivery of an instrument that is recordable, the affidavit when authenticated for record is likewise recordable. (c) A special power of attorney created before September 4, 1988, shall be construed to grant the agent the powers set out in that special power of attorney.
(a) A public home care provider may not accept a designation as agent by general or special power of attorney for an individual to whom the provider furnishes services unless the designation is held jointly with another individual who is not a public home care provider. (b) In this section, public home care provider has the meaning given in AS 47.05.017(c).
(a) The following persons may petition a court in accordance with the provisions of AS 13.26.401 - 13.26.595 to construe a power of attorney, review the agent's conduct, and grant appropriate relief: (1) the principal or the agent; (2) the principal's attorney or other legal representative; (3) a guardian, conservator, or other fiduciary acting for the principal; (4) a person authorized to make health care decisions for the principal; (5) the principal's spouse, parent, or descendant; (6) an individual who would qualify as a presumptive heir of the principal; (7) a person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate; (8) the Department of Health, the Department of Administration, the office of the long term care ombudsman, or other governmental agency having statutory authority to protect the welfare of the principal; (9) the principal's caregiver, custodian, or another person that demonstrates sufficient interest in the principal's welfare; and (10) a person asked to accept the power of attorney. (b) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the power of attorney.
(a) Except as provided in (c) of this section, AS 13.26.600 - 13.26.695 do not supersede any other law applicable to a financial institution or other entity, and the other law controls if inconsistent with AS 13.26.600 - 13.26.695. (b) The remedies in AS 13.26.600 - 13.26.695 are not exclusive and do not abrogate any right or remedy under the law of this state. (c) AS 13.26.600 - 13.26.695 modify, limit, or supersede 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), but do not modify, limit, or supersede 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).
A person who wishes to designate another as agent by a power of attorney may execute a statutory power of attorney set out in substantially the following form:GENERAL POWER OF ATTORNEYTHE POWERS GRANTED FROM THE PRINCIPAL TO THE AGENT OR AGENTS IN THE FOLLOWING DOCUMENT ARE VERY BROAD. THEY MAY INCLUDE THE POWER TO DISPOSE, SELL, CONVEY, AND ENCUMBER YOUR REAL AND PERSONAL PROPERTY. ACCORDINGLY, THE FOLLOWING DOCUMENT SHOULD ONLY BE USED AFTER CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT THIS DOCUMENT, YOU SHOULD SEEK COMPETENT ADVICE.YOU MAY REVOKE THIS POWER OF ATTORNEY AT ANY TIME.Pursuant to AS 13.26.600, 13.26.625 - 13.26.640, and 13.26.655 - 13.26.695, I, (Name of principal), of (Address of principal), do hereby appoint (Name and address of agent or agents), my agent(s) to act as indicated below in my name, place, and stead in any way which I myself could do, if I were personally present, with respect to the following matters, as each of them is defined in AS 13.26.665, to the full extent that I am permitted by law to act through an agent:MARK THE BOXES BELOW TO INDICATE THE POWERS YOU WANT TO GIVE YOUR AGENT OR AGENTS. MARK THE BOX FOR YES THAT IS OPPOSITE A CATEGORY BELOW TO GIVE YOUR AGENT OR AGENTS THE POWER IN THAT CATEGORY. IF YOU DO NOT MARK A BOX OPPOSITE A CATEGORY, YOUR AGENT OR AGENTS WILL NOT HAVE THE POWER IN THAT CATEGORY.YES(A) real estate transactions( )(B) transactions involving tangible personal property, chattels, and goods( )(C) bonds, shares, and commodities transactions( )(D) banking transactions( )(E) business operating transactions( )(F) insurance transactions( )(G) estate transactions( )(H) retirement plans( )(I) claims and litigation( )(J) personal relationships and affairs( )(K) benefits from government programs and civil or military service( )(L) records, reports, and statements( )(M) voter registration and absentee ballot requests( )(N) all other matters, including those specified as follows:( )_________________________________________________________GRANT OF SPECIFIC AUTHORITY (OPTIONAL)The agent or agents you have appointed WILL NOT have the power to do any of the following acts UNLESS you MARK the box opposite that category: create, amend, revoke, or terminate an inter vivos trust; make a gift, subject to the limitations of AS 13.26.665(q) and any special instructions in this power of attorney; create or change a beneficiary designation; revoke a transfer on death deed made under AS 13.48; create or change rights of survivorship; delegate authority granted under the power of attorney; waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; exercise fiduciary powers that the principal has authority to delegate; exercise authority over the content of electronic communications, as that term is defined in 18 U.S.C. 2510(12), sent or received by the principal.IF YOU HAVE APPOINTED MORE THAN ONE AGENT, MARK ONE OF THE FOLLOWING: Each agent may exercise the powers conferred separately, without the consent of any other agent. All agents shall exercise the powers conferred jointly, with the consent of all other agents.TO INDICATE WHEN THIS DOCUMENT SHALL BECOME EFFECTIVE, MARK ONE OF THE FOLLOWING: This document shall become effective upon the date of my signature. This document shall become effective upon the date of my incapacity and shall not otherwise be affected by my incapacity.IF YOU HAVE INDICATED THAT THIS DOCUMENT SHALL BECOME EFFECTIVE ON THE DATE OF YOUR SIGNATURE, MARK ONE OF THE FOLLOWING: This document shall not be affected by my subsequent incapacity. This document shall be revoked by my subsequent incapacity.IF YOU HAVE INDICATED THAT THIS DOCUMENT SHALL BECOME EFFECTIVE UPON THE DATE OF YOUR SIGNATURE AND WANT TO LIMIT THE TERM OF THIS DOCUMENT, COMPLETE THE FOLLOWING:This document shall only continue in effect for __________ years from the date of my signature.NOTICE OF REVOCATION OF THE POWERS GRANTED IN THIS DOCUMENTYou may revoke one or more of the powers granted in this document. Unless otherwise provided in this document, you may revoke a specific power granted in this power of attorney by completing a special power of attorney that includes the specific power in this document that you want to revoke. Unless otherwise provided in this document, you may revoke all the powers granted in this power of attorney by completing a subsequent power of attorney.NOTICE TO THIRD PARTIESA third party who relies on the reasonable representations of an agent as to a matter relating to a power granted by a properly executed statutory form power of attorney does not incur any liability to the principal or to the principal's heirs, assigns, or estate as a result of permitting the agent to exercise the authority granted by the power of attorney. A third party who fails to honor a properly executed statutory form power of attorney may be liable to the principal, the agent, the principal's heirs, assigns, or estate for a civil penalty, plus damages, costs, and fees associated with the failure to comply with the statutory form power of attorney. If the power of attorney is one which becomes effective upon the incapacity of the principal, the incapacity of the principal is established by an affidavit, as required by law.IN WITNESS WHEREOF, I have hereunto signed my name this _________ day of _________, _____.___________________Acknowledged before me at ________________________________________________________________________ on ___________________.___________________If a person other than the principal executes the signature for the principal, the person may not be a person who is appointed an agent in the power of attorney, and the following signature line and notary verification must also be completed:IN WITNESS WHEREOF, I have hereunto signed my name this _________ day of _________, _____.___________________Signature of person signing at the request of _____________________________________________________Printed name of person signing ___________________Form of identification of person signing ___________________Acknowledged before me at ________________________________________________________________________ on ___________________.___________________
Each of the following provisions may be included in a statutory form power of attorney:(1) YOU MAY DESIGNATE AN ALTERNATE AGENT. ANY ALTERNATE YOU DESIGNATE WILL BE ABLE TO EXERCISE THE SAME POWERS AS THE AGENT(S) YOU NAMED AT THE BEGINNING OF THIS DOCUMENT. IF YOU WISH TO DESIGNATE AN ALTERNATE OR ALTERNATES, COMPLETE THE FOLLOWING: If the agent(s) named at the beginning of this document is unable or unwilling to serve or continue to serve, then I appoint the following agent to serve with the same powers: First alternate or successor agent(Name and address of alternate)Second alternate or successor agent(Name and address of alternate)(2) YOU MAY NOMINATE A GUARDIAN OR CONSERVATOR. IF YOU WISH TO NOMINATE A GUARDIAN OR CONSERVATOR, COMPLETE THE FOLLOWING: In the event that a court decides that it is necessary to appoint a guardian or conservator for me, I hereby nominate to be considered by the court for appointment to serve as my guardian or conservator, or in any similar representative capacity. 
(a) [Repealed,  28 ch 50 SLA 2016.] (b) Special provisions and limitations may be imposed on the statutory form power of attorney only if they conform to the requirements of AS 13.26.670.
In the instrument set out in AS 13.26.645 - 13.26.650, (1) if the principal has appointed more than one person to act as agent and failed to mark whether the agents may act jointly or severally, the agents are required to act jointly; (2) if the principal has failed to indicate when the instrument shall become effective, the instrument shall become effective upon the date of the principal's signature; (3) if the principal has indicated that the instrument shall become effective upon the date of the principal's signature or has failed to indicate when the instrument shall become effective and has failed to indicate the effect of the principal's subsequent incapacity on the instrument, the instrument shall be revoked by the subsequent incapacity of the principal; (4) if the principal has failed to indicate a specific term for the instrument, the instrument shall continue in effect until revoked.
(a) In a statutory form power of attorney, the language conferring general authority with respect to real estate transactions shall be construed to mean that, as to an estate or interest in land of the principal, whether in the state or elsewhere, the principal authorizes the agent to (1) accept as a gift or as security for a loan, demand, buy, lease, receive, or otherwise acquire either ownership or possession of any estate or interest in land; (2) sell, exchange, convey, quitclaim, release, surrender, mortgage, encumber, partition or consent to the partitioning, grant options concerning, lease or sublet, or otherwise to dispose of, an estate or interest in land; (3) release in whole or in part, assign the whole or a part of, satisfy in whole or in part, and enforce a mortgage, encumbrance, lien, or other claim to land that exists, or is claimed to exist, in favor of the principal; (4) do any act of management or of conservation with respect to an estate or interest in land owned, or claimed to be owned, by the principal, including by way of illustration, but not of restriction, power to insure against any casualty, liability, or loss, obtain or regain possession or protect the estate or interest, pay, compromise, or contest taxes or assessments, or apply for refunds in connection with a payment, compromise, or tax, purchase supplies, hire assistance of labor, and make repairs or alterations in the structures or land; (5) use, develop, modify, alter, replace, remove, erect, or install structures or other improvements on land in which the principal has, or claims to have, an estate or interest; (6) demand, receive, or obtain money or any other thing of value to which the principal is, or may become, or may claim to be entitled as the proceeds of an interest in land or of one or more of the transactions enumerated in this subsection; conserve, invest, disburse, or use anything so received for purposes enumerated in this subsection; and reimburse the agent for an expenditure properly made in the execution of the powers conferred by the statutory form power of attorney; (7) participate in any reorganization with respect to real property and receive and hold any shares of stock or instrument of similar character received under a plan of reorganization, and act with respect to a plan of reorganization, including by way of illustration, but not of restriction, power to sell or otherwise to dispose of shares, to exercise or to sell an option, conversion, or similar right, and to vote in person by the granting of a proxy; (8) agree and contract, in any manner, and with any person and on any terms that the agent may select, for the accomplishment of any of the purposes enumerated in this subsection, and perform, rescind, reform, release, or modify an agreement or contract made by or on behalf of the principal; (9) execute, acknowledge, seal, and deliver a deed, mortgage, lease, notice, check, or other instrument that the agent considers useful for the accomplishment of any of the purposes enumerated in this subsection; (10) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, a claim existing in favor of, or against, the principal based on or involving a real estate transaction or intervene in any related action; (11) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent considers that action to be desirable for the proper execution of a power described in this subsection, and for the keeping of records about that action; and (12) do any other act or acts that the principal can do through an agent with respect to any estate or interest in land. (b) In a statutory form power of attorney, the language conferring general authority with respect to tangible personal property, chattels, and goods transactions shall be construed to mean that, as to tangible personal property, chattels, or goods owned by the principal, whether located in the state or elsewhere, the principal authorizes the agent to (1) accept as a gift, or as a security for a loan, reject, demand, buy, receive, or otherwise acquire either ownership or possession of chattels or goods or an interest in the tangible personal property, chattels, or goods; (2) sell, exchange, convey, release, surrender, mortgage, encumber, pledge, hypothecate, pawn, grant options concerning, lease or sublet to others, or otherwise dispose of tangible personal property, chattels, or goods or an interest in them; (3) release in whole or in part, assign the whole or a part of, satisfy in whole or in part, and enforce a mortgage, encumbrance, lien, or other claim that exists, or is claimed to exist, in favor of the principal with respect to any tangible personal property, chattels, or goods or an interest in them; (4) do any act of management or of conservation with respect to any tangible personal property, chattels, or goods or to an interest in any tangible personal property, chattels, or goods owned, or claimed to be owned, by the principal, including by way of illustration, but not of restriction, power to insure against any casualty, liability, or loss, obtain or regain possession, or protect the tangible personal property, chattels, or goods or an interest in them, pay, compromise, or contest taxes or assessments, apply for refunds in connection with a payment, compromise, or tax, move from place to place, store for hire or on a gratuitous bailment, use, alter, and make repairs or alterations of any tangible personal property, chattels, or goods, or an interest in them; (5) demand, receive, and obtain money or any other thing of value to which the principal is, or may become, or may claim to be, entitled as the proceeds of any tangible personal property, chattels, or goods or of an interest in them, or of one or more of the transactions enumerated in this subsection, conserve, invest, disburse, or use anything so received for purposes enumerated in this subsection, and reimburse the agent for any expenditures properly made in the execution of the powers conferred by the power of attorney; (6) agree and contract, in any manner, and with any person and on any terms that the agent may select, for the accomplishment of the purposes enumerated in this subsection, and perform, rescind, reform, release, or modify any agreement or contract or any other similar agreement or contract made by or on behalf of the principal; (7) execute, acknowledge, seal, and deliver a conveyance, mortgage, lease, notice, check or other instrument that the agent considers useful for the accomplishment of the purposes enumerated in this subsection; (8) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, a claim existing in favor of, or against, the principal based on or involving a transaction involving tangible personal property, chattels, or goods, or intervene in an action or proceeding; (9) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent considers the action to be desirable to the proper execution of a power described in this subsection, and for the keeping of records about that action; (10) do any other act or acts that the principal can do through an agent with respect to any chattels or goods or interest in any tangible personal property, chattels, or goods. (c) In a statutory form power of attorney, the language conferring general authority with respect to bonds, shares, and commodities transactions shall be construed to mean that, with respect to a bond, share, or commodity of the principal, whether in the state or elsewhere, the principal authorizes the agent to (1) accept as a gift, or as a security for a loan, reject, demand, buy, receive, or otherwise acquire either ownership or possession of, a bond, share, or instrument of similar character including, by way of illustration, but not of restriction, stock in a corporation organized under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act), commodity interest, or an instrument with respect to a bond, share, or instruments of similar character, together with the interest, dividends, proceeds, or other distributions connected with a bond, share, or instrument of a similar character; (2) sell, exchange, transfer, release, surrender, hypothecate, pledge, grant options concerning, loan, trade in, or otherwise dispose of a bond, share, instrument of similar character, commodity interest, or a related instrument; (3) release, assign the whole or part of, satisfy in whole or in part, and enforce a pledge, encumbrance, lien, or other claim as to a bond, share, instrument of similar character, commodity interest, or a related interest, when the pledge, encumbrance, lien, or other claim is owned, or claimed to be owned, by the principal; (4) do any act of management or of conservation with respect to a bond, share, instrument of similar character, commodity interest, or a related instrument, owned or claimed to be owned by the principal or in which the principal has or claims to have an interest, including by way of illustration, but not of restriction, power to insure against a casualty, liability, or loss, obtain or regain possession or protect the principal's interest, pay, compromise, or contest taxes or assessments, apply for a refund in connection with a payment, compromise, or tax, consent to and participate in a reorganization, recapitalization, liquidation, merger, consolidation, sale or lease or other change in or revival of a corporation or other association, or in the financial structure of a corporation or other association, or in the priorities, voting rights, or other special rights with respect to a corporation or association, become a depositor with a protective, reorganization or similar committee of the bond, share, other instrument of similar character, commodity interest or a related instrument, belonging to the principal, make a payment reasonably incident to them, and exercise or sell an option, conversion, or similar right, or vote in person or by the granting of a proxy for the accomplishment of the purposes enumerated in this subsection; (5) carry in the name of a nominee selected by the agent evidence of the ownership of a bond, share, other instrument of similar character, commodity interest, or related instrument belonging to the principal; (6) employ, in any way believed to be desirable by the agent, a bond, share, other instrument of similar character, commodity interest, or a related instrument, in which the principal has or claims to have an interest, for the protection or continued operation of a speculative or margin transaction personally begun or personally guaranteed, in whole or in part, by the principal; (7) demand, receive, or obtain money or any other thing of value to which the principal is, or may claim to be, entitled as the proceeds of an interest in a bond, share, other instrument of similar character, commodity interest or a related instrument, or of one or more of the transactions enumerated in this subsection, conserve, invest, disburse, or use anything so received for purposes enumerated in this subsection; and reimburse the agent for an expenditure properly made in the execution of the powers conferred by the statutory form power of attorney; (8) agree and contract, in any manner, and with a broker or other person, and on terms that the agent may select, for the accomplishment of the purposes enumerated in this subsection, and perform, rescind, reform, release, or modify the agreement or contract or other similar agreement made by or on behalf of the principal; (9) execute, acknowledge, seal, and deliver a consent, agreement, authorization, assignment, notice, waiver of notice, check, or other instrument that the agent considers useful for the accomplishment of the purposes enumerated in this subsection; (10) execute, acknowledge and file a report or certificate required by law or regulation; (11) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, a claim existing in favor of, or against, the principal based on or involving a bond, share, or commodity transactions, or intervene in a related action or proceeding; (12) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent considers that action to be desirable for the proper execution of the powers described in this subsection, and for the keeping of records about that action; and (13) do any other act or acts that the principal can do through an agent, with respect to an interest in a bond, share, or other instrument of similar character, commodity, or instrument with respect to a commodity. (d) In a statutory form power of attorney, the language conferring general authority with respect to banking transactions shall be construed to mean that, as to a banking transaction engaged in by the principal, whether in the state or elsewhere, the principal authorizes the agent to (1) continue, modify, or terminate a deposit account or other banking arrangement made by or on the behalf of the principal before the execution of the power of attorney; (2) open, either in the name of the agent alone or in the name of the principal alone, or in both their names jointly, a deposit account of any type in a financial institution selected by the agent, hire a safe deposit box or vault space, and enter into contracts for the procuring of other services made available by the institution that the agent considers desirable; (3) make, sign, and deliver checks or drafts for any purpose, and withdraw funds or property of the principal deposited with or left in the custody of a financial institution, wherever located, either before or after the execution of the power of attorney; (4) prepare financial statements concerning the assets and liabilities or income and expenses of the principal, and deliver the statements to a financial institution or person whom the agent believes to be reasonably entitled to them; (5) receive statements, vouchers, notices, or other documents from a financial institution and act with respect to them; (6) have free access to a safe deposit box or vault to which the principal would have access if personally present; (7) borrow money as the agent may determine, give security out of the assets of the principal as the agent considers necessary for the borrowing, and pay, renew, or extend the time of payment of a financial institution by any other procedure made available by the institution; (8) make, assign, endorse, discount, guarantee, use, and negotiate promissory notes, bills of exchange, checks, drafts, credit and debit cards, electronic transaction authorizations, or other negotiable or nonnegotiable paper of the principal, or payable to the principal or to the principal's order, receive the cash or other proceeds of them; and accept any bill of exchange or draft drawn by any person upon the principal, and pay it when due; (9) receive for the principal and deal in and with a negotiable or nonnegotiable instrument in which the principal has or claims to have an interest; (10) apply for and receive letters of credit or traveler's checks from a banker or banking institution selected by the agent, giving indemnity or other agreements in connection with the applications or receipts that the agent considers desirable or necessary; (11) consent to an extension in the time of payment with respect to commercial paper or a banking transaction in which the principal has an interest or by which the principal is, or might be, affected in any way; (12) pay, compromise, or contest taxes or assessments and apply for refunds in connection with the payment, compromise, or contest; (13) demand, receive, or obtain money or any other thing of value to which the principal is, or may become, or may claim to be entitled as the proceeds of any banking transaction conducted by the principal or by the agent in the execution of the powers described in this subsection, or partly by the principal and partly by the agent; conserve, invest, disburse, or use anything received for purposes enumerated in this subsection, and reimburse the agent for an expenditure properly made in the execution of the powers conferred by the statutory form power of attorney; (14) execute, acknowledge, seal, and deliver an instrument, in the name of the principal or otherwise, that the agent considers useful for the accomplishment of a purpose enumerated in this subsection; (15) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, a claim existing in favor of, or against, the principal based on or involving a banking transaction, or intervene in an action or proceeding relating to a banking transaction; (16) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent considers that the action is desirable for the proper execution of the powers described in this subsection, and for the keeping of records about that action; and (17) do any other act or acts that the principal can do through an agent in connection with a banking transaction that does or might in any way affect the financial or other interests of the principal. (e) In a statutory form power of attorney, the language conferring general authority with respect to business operating transactions shall be construed to mean that, with respect to a business in which the principal has an interest, whether in the state or elsewhere, the principal authorizes the agent (1) to the extent that an agent is permitted by law to act for a principal, to discharge and perform any duty or liability and exercise any right, power, privilege, or option that the principal has, or claims to have, under a contract of partnership, whether as a general or special partner, enforce the terms of the partnership agreement for the protection of the principal that the agent considers desirable or necessary, and defend, submit to arbitration, settle, or compromise an action to which the principal is a party because of membership in a partnership; (2) to exercise in person or by proxy or enforce a right, power, privilege, or option that the principal has as the holder of a bond, share, or other instrument of similar character, and defend, submit to arbitration, settle, or compromise an action to which the principal is a party because of a bond, share, or other instrument of similar character; (3) with respect to a business enterprise that is owned solely by the principal, to (A) continue, modify, renegotiate, extend and terminate a contractual arrangement made with a person, firm, association, or corporation by or on behalf of the principal; (B) determine the policy of the enterprise as to the location of the site or sites to be used for its operation, the nature and extent of the business to be undertaken by it, the methods of manufacturing, selling, merchandising, financing, accounting, and advertising to be employed in its operation, the amount and types of insurance to be carried, the mode of securing compensation and dealing with accountants, attorneys, and employees required for its operation, agree and contract, in any manner, and with any person and on any terms, that the agent considers desirable or necessary to carry out any or all of the decisions of the agent as to policy, and perform, rescind, reform, release, or modify an agreement or contract or any other similar agreement or contract made by or on behalf of the principal; (C) change the name or form of organization under which the business is operated and enter into a partnership agreement with others or organize a corporation to take over the operation of the business, or any part of it, that the agent considers desirable or necessary; (D) demand and receive all money that is or may become due to the principal, or that may be claimed by the principal or on the principal's behalf, in the operation of the enterprise, and control and disburse the funds in the operation of the enterprise in any way that the agent considers desirable or necessary, and engage in banking transactions that the agent considers desirable or necessary to carry out the execution of the powers of the agent described in this subparagraph; (4) to prepare, sign, file, and deliver all reports, compilations of information, returns, and other papers with respect to a business operating transaction of the principal that is required by a government agency or that the agent considers desirable or necessary for any purpose, and make any payments with respect to the agency; (5) to pay, compromise, or contest taxes or assessments and do any act or acts that the agent considers desirable or necessary to protect the principal from illegal or unnecessary taxation, fines, penalties, or assessments in connection with the business operations; (6) to demand, receive, or obtain money or any other thing of value to which the principal is or may claim to be entitled as the proceeds of a business operation of the principal, conserve, invest, disburse, and use anything so received for purposes enumerated in this subsection, and reimburse the agent for expenditures properly made in the execution of the powers conferred by the statutory form power of attorney; (7) to execute, acknowledge, seal, and deliver a deed, assignment, mortgage, lease, notice, consent, agreement, authorization check, or other instrument that the agent considers useful for the accomplishment of any of the purposes enumerated in this subsection; (8) to prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, a claim existing in favor of, or against, the principal based on or involving a business operating transaction or intervene in a related action; (9) to hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent reasonably believes that the action is desirable for the proper execution of the powers described in this subsection, and for the keeping of records about that action; (10) to operate, buy, sell, enlarge, reduce, or terminate an ownership interest; (11) to put additional capital into an entity or business in which the principal has an interest; (12) to join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business; (13) to sell or liquidate all or part of an entity or business; (14) to establish the value of an entity or business under a buy-out agreement to which the principal is a party; and (15) to do any other act or acts that the principal can do through an agent in connection with a business operated by the principal that the agent considers desirable or necessary for the furtherance or protection of the interests of the principal. (f) In a statutory form power of attorney, the language conferring general authority with respect to insurance transactions shall be construed to mean that, as to a contract of insurance in which the principal has an interest, whether in the state or elsewhere, the principal authorizes the agent to (1) continue, pay the premium or assessment on, modify, rescind, release, or terminate any contract of life, accident, health, disability, or liability insurance, or any combination of insurance, procured by or on behalf of the principal before the creation of the agency that insures either the principal or any other person without regard to whether the principal is or is not a beneficiary under the insurance coverage; (2) procure new, different, or additional contracts on the life of the principal or protecting the principal with respect to ill health, disability, accident, or liability of any sort, select the amount, the type of insurance contract, and the mode of payment under each policy, pay the premium or assessment on, modify, rescind, release, or terminate a contract so procured by the agent; and designate the beneficiary of the contract of insurance, except that the agent cannot be the beneficiary unless the agent is spouse, child, grandchild, parent, brother, or sister of the principal; (3) apply for and receive a loan on the security of the contract of insurance, whether for the payment of a premium or for the procuring of cash; surrender and receive the cash surrender value; exercise an election as to beneficiary or mode of payment, change the manner of paying premiums, change or convert the type of insurance contract with respect to any insurance that the principal has, or claims to have, as to any power described in this subsection; and change the beneficiary of a contract of insurance, except that the agent cannot be the new beneficiary unless the agent is spouse, child, grandchild, parent, brother, or sister of the principal; (4) demand, receive, or obtain money or any other thing of value to which the principal is, or may become, or may claim to be entitled as the proceeds of a contract of insurance or of one or more of the transactions enumerated in this subsection; conserve, invest, disburse, or use anything received for purposes enumerated in this subsection and reimburse the agent for expenditures properly made in the execution of the powers conferred by the statutory form power of attorney; (5) apply for and procure available government aid in the guaranteeing or paying of premiums of a contract of insurance on the life of the principal; (6) sell, assign, hypothecate, borrow upon, or pledge the interest of the principal in any contract of insurance; (7) pay, from the proceeds of an insurance contract or otherwise, compromise, or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or the proceeds of or liability accruing by reason of a tax or assessment; (8) agree and contract, in any manner and with any person and on any terms that the agent may select, for the accomplishment of the purposes enumerated in this subsection, and perform, rescind, reform, release, or modify any agreement or contract; (9) execute, acknowledge, seal, and deliver any consent, demand, request, application, agreement, indemnity, authorization, assignment, pledge, notice, check, receipt, waiver, or other instrument that the agent considers useful for the accomplishment of a purpose enumerated in this subsection; (10) continue, procure, pay the premium or assessment on, modify, rescind, release, terminate, or otherwise deal with any contract of insurance, other than those enumerated in (1) and (2) of this subsection, or any combination of insurance; and do any act with respect to the contract or with respect to its proceeds or enforcement that the agent considers desirable or necessary for the promotion or protection of the interests of the principal; (11) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to a claim existing in favor of, or against, the principal based on or involving an insurance transaction, or intervene in an action relating to an insurance transaction; (12) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent considers the action to be desirable for the proper execution of a power described in this subsection, and for the keeping of records about that action; (13) exercise investment powers available under a contract of insurance or annuity; and (14) do any other act or acts that the principal can do through an agent in connection with procuring, supervising, managing, modifying, enforcing, and terminating contracts of insurance in which the principal is the insured or has an interest. (g) In a statutory form of attorney, the language conferring general authority with respect to estate transactions shall be construed to mean that, with respect to an estate of a decedent, absentee, minor, incompetent, or the administration of a trust or other fund, whether in the state or elsewhere, the principal authorizes the agent (1) to the extent that an agent is permitted by law to act for a principal, apply for and procure, in the name of the principal, authority to act as a fiduciary of any sort; (2) to the extent that an agent is permitted by law to act for a principal, represent and act for the principal in all ways and in all matters affecting any estate of a decedent, absentee, minor, or incompetent, or any trust or other fund, out of which the principal is entitled, or claims to be entitled, to some share or payment, or with respect to which the principal is a fiduciary; (3) to accept, reject, disclaim, receive, give a receipt for, sell, assign, release, pledge, exchange, or consent to a reduction in or modification of, a gift, bequest, devise, inheritance, or any interest in a share in or payment from an estate, trust, or other fund, including an interest in any jointly-owned real or personal property or proceeds from an insurance policy; (4) to demand, receive, or obtain money or any other thing of value to which the principal is, or may become, or may claim to be entitled by reason of the death of a person or of any testamentary disposition or trust, or by reason of the administration of the estate of a decedent or absentee, or of a guardianship of a minor or incompetent or the administration of any trust or other fund; initiate, participate in, and oppose a proceeding to ascertain the meaning, validity, or effect of any deed, will, declaration of trust, or other transaction affecting in any way the interest of the principal; initiate, participate in, and oppose a proceeding for the removal, substitution, or surcharge of a fiduciary; conserve, invest, disburse, or use anything received for purposes enumerated in this subsection; and reimburse the agent for expenditures properly made in the execution of the powers conferred by the statutory form powers of attorney; (5) to prepare, sign, file, and deliver all reports, compilations of information, returns, or papers with respect to an interest had or claimed by or on behalf of the principal in an estate, trust, or other fund; pay, compromise, or contest, and apply for refunds in connection with a tax or assessment with respect to any interest had or claimed by or on behalf of the principal in an estate, trust, or other fund or by reason of the death of any person, or with respect to property in which the principal had or claimed an interest; (6) to agree and contract, in any manner and with any person and on any terms that the agent may select, for the accomplishment of the purposes enumerated in this subsection, and perform, rescind, reform, release, or modify an agreement or contract or any other similar agreement or contract made by or on behalf of the principal; (7) to execute, acknowledge, verify, seal, file, and deliver a consent, designation, pleading, notice, demand, election, conveyance, release, assignment, check, pledge, waiver, admission of service, notice of appearance, or any other instrument that the agent considers useful for accomplishment of any of the purposes enumerated in this subsection; (8) to submit to arbitration or settle, and propose or accept a compromise with respect to, a controversy or claim that affects the estate of a decedent, absentee, minor, or incompetent, or the administration of a trust or other fund, in any one of which the principal has, or claims to have, an interest, and do any act that the agent considers desirable or necessary to carry out the compromise; (9) to hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent considers the action to be desirable for the proper execution of any of the powers described in this subsection, and for the keeping of records about that action; and (10) to do any other act or acts that the principal can do through an agent, with respect to the estate of a decedent, absentee, minor, or incompetent, or the administration of a trust or other fund, in any one of which the principal has, or claims to have, an interest with respect to which the principal is a fiduciary. (h) In a statutory form power of attorney, the language conferring authority with respect to retirement plans shall be construed to mean that the principal authorizes the agent to (1) select the form and timing of payments under a retirement plan and withdraw benefits from a plan; (2) make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another; (3) establish a retirement plan in the principal's name; (4) make contributions to a retirement plan; (5) exercise investment powers available under a retirement plan; and (6) borrow from, sell assets to, or purchase assets from a retirement plan. (i) In a statutory form power of attorney, the language conferring general authority with respect to claims and litigation shall be construed to mean that, as to any claim or litigation, whether arising in the state or elsewhere, the principal authorizes the agent to (1) assert and prosecute before any court, administrative board, department, or other tribunal a cause of action, claim, counterclaim, offset, or defense that the principal has, or claims to have, against an individual, partnership, association, corporation, government, or other person or instrumentality, including, by way of illustration, and not of restriction, power to sue for the recovery of land or of any other thing of value, for the recovery of damages sustained by the principal in any manner for damages sustained as a result of the refusal of a third party to honor the power of attorney, for the elimination or modification of tax liability, for an injunction, for specific performance, or for any other relief; (2) bring an action to determine adverse claims, intervene or interplead in an action or proceeding, and act in litigation as amicus curiae; (3) in connection with any legal action, apply for and, if possible, procure preliminary, provisional, or intermediate relief, and resort to and use any available procedure to obtain and satisfy a judgment, order, or decree; (4) in connection with any legal action, perform an act that the principal might perform, including by way of illustration and not of restriction, acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and generally bind the principal in the conduct of any litigation or controversy that the agent considers desirable; (5) submit to arbitration, settle, and propose or accept a compromise with respect to a claim existing in favor of or against the principal, or any litigation to which the principal is or may become or be designated a party; (6) waive the insurance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon whom process directed to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, appeal to appellate tribunals, procure and give surety and indemnity bonds that the agent finds desirable or necessary, contract and pay for the preparation and printing of records and briefs, receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument that the agent considers desirable or necessary in connection with the prosecution, settlement, or defense of a claim by or against the principal or of any litigation to which the principal is or may become or be designated a party; (7) appear for, represent, and act for the principal with respect to bankruptcy or insolvency proceedings whether of the principal or of some other person, with respect to a reorganization proceeding, or with respect to a receivership or application for the appointment of a receiver or trustee that affects an interest of the principal in any land, chattel, bond, share, commodity interest, or other thing of value; (8) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent reasonably believes the action to be desirable for the proper execution of any of the powers described in this subsection; (9) pay, from funds in the agent's control or for the account of the principal, any judgment against the principal or any settlement that may be made in connection with a transaction enumerated in this subsection, and receive and conserve any money or other thing of value paid in settlement of or as proceeds of one or more of the transactions enumerated in this subsection, and receive, endorse, and deposit checks; and (10) do any other act or acts that the principal can do through an agent in connection with a claim by or against the principal or with litigation to which the principal is or may become or be designated a party. (j) In a statutory form power of attorney, the language conferring general authority with respect to personal relationships is neither dependent on, nor limited by, authority that an agent may or may not have with respect to gifts under AS 13.26.600 - 13.26.695, and shall be construed to mean that, as to real and personal property owned by the principal, whether in the state or elsewhere, the principal authorizes the agent to (1) do all acts necessary to maintain the customary standard of living of the spouse, children, other dependents of the principal, whether living when the power of attorney is executed or later born, and individuals whom the principal has customarily supported or indicated the intent to support, including by way of illustration and not by way of restriction, power to provide living quarters by purchase, by lease, or by other contract, or by any payment of the operating costs, including interest, amortization payments, repairs, and taxes, of premises owned by the principal and occupied by the principal's family or dependents, to provide normal domestic help for the operation of the household, to provide usual vacations and usual travel expenses, to provide usual educational facilities, to provide funds for all the current living costs of the spouse, children, and other dependents, including, among other things, shelter, clothing, food, and incidentals, and to make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party; (2) provide, whenever necessary, medical, dental, and surgical care, hospitalization, and custodial care for the spouse, children, and other dependents of the principal; (3) continue whatever provision has been made by the principal for the principal's spouse, children, and other dependents, with respect to automobiles, or other means of transportation, including by way of illustration, but not by way of restriction, power to license, insure, and replace automobiles owned by the principal and customarily used by the spouse, children, or other dependents of the principal; (4) continue whatever charge accounts have been opened for the convenience of the principal's spouse, children, or other dependents, open any new accounts that the agent considers desirable to accomplish the purposes enumerated in this subsection, and pay the items charged on these accounts by a person authorized or permitted by the principal to make the charges; (5) continue the discharge of any services or duties assumed by the principal to a parent, relative, or friend of the principal; (6) supervise, enforce, defend, or settle any claim by or against the principal arising out of property damages or personal injuries suffered by or caused by the principal, or under any circumstance that the resulting loss will or may fall on the principal; (7) continue payments incidental to the membership or affiliation of the principal in a church, club, society, order, or other organization, or continue contributions to the organization; (8) demand, receive, or obtain money or any other thing of value to which the principal is or may become or may claim to be entitled as remuneration for services performed, or as a stock dividend or distribution, or as interest or principal upon indebtedness, or as a periodic distribution of profits from any partnership or business in which the principal has or claims an interest, and endorse, collect, or otherwise realize upon an instrument for the payment received; (9) prepare, execute, and file all tax, social security, unemployment insurance, and information returns required by the laws of the United States or of any state or subdivision, or of any foreign government; prepare, execute, and file all other papers and instruments that the agent considers desirable or necessary for the safeguarding of the principal against excess or illegal taxation or against penalties imposed for claimed violation of a law or regulation; and pay, compromise, or contest or apply for refunds in connection with a tax or assessment for which the principal is or may be liable; (10) use an asset of the principal to perform a power enumerated in this subsection, including by way of illustration and not by way of restriction, power to draw money by check or otherwise from a bank deposit of the principal, to sell land or a chattel, bond, share, commodity interest, or other asset of the principal, to borrow money, and to pledge as security for the loan any asset, including insurance, that belongs to the principal; (11) execute, acknowledge, verify, seal, file, and deliver an application, consent, petition, notice, release, waiver, agreement, or other instrument that the agent considers useful to accomplish a purpose enumerated in this subsection; (12) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to a claim existing in favor of, or against, the principal based on or involving a transaction enumerated in this subsection, or intervene in any action or proceeding related to a transaction; (13) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent considers the action to be desirable for the proper execution of any of the powers described in this subsection, and for the keeping of records, about that action; (14) do any other act or acts that the principal can do through an agent, for the welfare of the spouse, children, or dependents of the principal or for the preservation and maintenance of the other personal relationships of the principal to a parent, relative, friend, or organization; and (15) act as the principal's personal representative under 42 U.S.C. 1320d (Health Insurance Portability and Accountability Act of 1996 and secs. 1171 - 1179, Social Security Act), as amended, and applicable regulations, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal. (k) In a statutory form power of attorney, the language conferring general authority with respect to benefits from government programs or civil or military service shall be construed to mean that, whether the benefits from the government programs or civil or military service have accrued to the principal in the state or elsewhere, the principal authorizes the agent to (1) prepare and execute vouchers, applications, requests, forms, and other legal documents in the name of the principal for all benefits, bonuses, dividends, allowances, and reimbursements payable under any government program or military service of the United States, a state, or a subdivision, including allowances and reimbursements for transportation of the individuals described in (j)(1) of this section, and for shipment of their household effects, and receive, endorse, and collect the proceeds of a check payable to the order of the principal drawn on the treasurer or other fiscal officer or depositary of the United States, a state, or a subdivision; (2) take possession and order the removal and shipment of property of the principal from any post, warehouse, depot, dock, or other place or storage or safekeeping and execute and deliver any release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument that the agent considers desirable or necessary for that purpose; (3) prepare, file, and prosecute the claim of the principal to any benefit or assistance to which the principal is, or claims to be, entitled under the provisions of a statute or regulation of the United States, a state, or a subdivision; (4) receive the financial proceeds of a claim of the type described in this subsection; conserve, invest, disburse or use anything received for purposes enumerated in this subsection; and reimburse the agent for expenditures properly made in the execution of the powers conferred by the statutory form power of attorney; (5) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to a claim existing in favor of, or against, the principal based on or involving a benefit from a government program or military service, or intervene in an action relating to a claim; (6) hire, discharge, or compensate an attorney, accountant, expert witness, or assistant when the agent considers that action to be desirable for the proper execution of any of the powers described in this subsection; (7) enroll in, apply for, select, reject, change, amend, or discontinue, on the principal's behalf, a benefit or program; and (8) do any other act or acts that the principal can do through an agent, and that the agent considers desirable or necessary to assure to the principal and to the dependents of the principal the maximum possible benefit from the government programs or civil or military service of the United States, a state, or a subdivision. (l) [Repealed,  15 ch 83 SLA 2004.]  (m) In a statutory form power of attorney, the language conferring general authority with respect to records, reports, and statements shall be construed to mean that, with respect to a record, report, or statement concerning the affairs of the principal, whether arising in the state or elsewhere, the principal authorizes the agent to (1) keep records of cash received and disbursed for or on account of the principal, of all credits and debits to the account of the principal, and of all transactions affecting the assets and liabilities of the principal; (2) prepare, execute, and file all tax, social security, unemployment insurance, and information returns required by the laws of the United States, a state, or a subdivision, or of any foreign government, and prepare, execute, and file all other papers and instruments that the agent considers desirable or necessary for the safeguarding of the principal against excess or illegal taxation or against penalties imposed for claimed violation of a law or regulation; (3) prepare, execute, and file a record, report, or statement that the agent considers desirable or necessary for the safeguarding or maintenance of the principal's interest with respect to price, rent, wage, or rationing control, or any other governmental activity; (4) hire, discharge, or compensate an attorney, accountant, or assistant when the agent reasonably believes the action to be desirable for the proper execution of the powers described in this subsection; and (5) do any other act or acts that the principal can do through an agent in connection with the preparation, execution, filing, storage, or other use of any records, reports, or statements of or concerning the principal's affairs. (n) [Repealed,  28 ch 50 SLA 2016.] (o) In a statutory form power of attorney, the language conferring general authority with respect to all other matters shall be construed to mean that the principal authorizes the person designated in the power of attorney to act as an agent of the principal with respect to (1) matters specifically described as other matters in the statutory form power of attorney; and (2) any other matter that is not enumerated in or excluded by this section and that the principal can lawfully do through an agent. (p) In a statutory form power of attorney, the language conferring general authority with regard to voter registration and absentee ballot requests shall be construed to mean that the principal authorizes the agent to register the principal to vote or request an absentee ballot for the principal. (q) In a statutory form power of attorney, unless the power of attorney otherwise provides, the language conferring specific authority with respect to gift transactions shall be construed to mean that the principal authorizes the agent only (1) to make a gift of the principal's property only as the agent determines is consistent with the principal's objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including (A) the value and nature of the principal's property; (B) the principal's foreseeable obligations and need for maintenance; (C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; (D) eligibility for a benefit, a program, or assistance under a statute or regulation; and (E) the principal's personal history of making or joining in making gifts; (2) subject to (1) of this subsection, to make outright to, or for the benefit of, a person, a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount for each donee not to exceed the annual dollar limits of the federal gift tax exclusion under 26 U.S.C. 2503(b) (Internal Revenue Code), as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal's spouse agrees to consent to a split gift under 26 U.S.C. 2513 (Internal Revenue Code), as amended, in an amount for each donee not to exceed twice the annual federal gift tax exclusion limit; in this paragraph, presently exercisable general power of appointment, with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate; the term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period; the term does not include a power exercisable in a fiduciary capacity or only by will; and (3) subject to (1) of this subsection, to consent, under 26 U.S.C. 2513 (Internal Revenue Code), as amended, to the splitting of a gift made by the principal's spouse in an amount for each donee not to exceed the aggregate annual gift tax exclusions for both spouses.
A power of attorney that satisfies the requirements of AS 13.26.645 - 13.26.665 is not prevented from being a statutory form power of attorney by the fact that it also contains additional language that (1) eliminates from the power of attorney one or more of the powers enumerated in one or more of the subsections of 13.26.665 with respect to a section of the statutory form power of attorney that is not eliminated by the principal; (2) supplements one or more of the powers enumerated in one or more of the subsections of AS 13.26.665 with respect to a section of the statutory form power of attorney that is not eliminated by the principal by specifically listing additional powers of the agent; (3) makes an additional provision that is not substantially inconsistent with the other provisions of the statutory form power of attorney; or  (4) relieves an agent of liability for breach of a duty under AS 13.26.610, except to the extent the provision (A) relieves the agent of liability for breach of duty committed dishonestly, with an improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or (B) was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.
(a) The subsequent incapacity of a principal does not revoke or terminate the authority of an agent who acts under a power of attorney in a writing executed by a principal if the writing contains the words This power of attorney shall become effective upon the incapacity of the principal, or contains the words This power of attorney shall not be affected by the subsequent incapacity of the principal, or words substantially similar showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent incapacity or uncertainty as to whether the principal is dead or alive.  (b) An act done by an agent under a power granted in a power of attorney under AS 13.26.645 - 13.26.665 during a period of incapacity or uncertainty as to whether the principal is dead or alive has the same effect and enures to the benefit of and binds a principal and the principal's distributees, devisees, legatees, and personal representatives as if there were no incapacity of the principal . If a conservator is later appointed for the principal, during the continuance of the appointment , the agent is accountable to the conservator as well as to the principal. The conservator has the same power to revoke, suspend, or terminate the power of attorney that the principal would have if there was no incapacity of the principal . 
(a) For purposes of AS 13.26.645 - 13.26.665, (1) the incapacity of a principal shall be established by affidavit stating that the principal is unable to manage property or business affairs because the principal (A) has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance, and this impairment is the result of mental illness, mental deficiency, physical illness, physical disability, advanced age, use of drugs, chronic intoxication, or other similar medical or psychological reason, to such an extent that the principal is unable to manage the principal's property or affairs; or (B) is (i) missing; (ii) detained, including incarcerated in a penal system; or (iii) outside the United States and unable to return; and (2) if the incapacity is based on (1)(A) of this subsection, two physicians or similarly qualified medical professionals who have personally examined the principal shall sign the affidavit; however, the affidavit may be signed by only one physician or similarly qualified medical professional if only one physician or similarly qualified medical professional is available and the affidavit executed by the person states that only one physician or similarly qualified medical professional is available. (b) A third party who relies on the reasonable representations of an agent designated under AS 13.26.645 - 13.26.670 as to a matter relating to a power granted by a properly executed statutory form power of attorney does not incur a liability to the principal or the principal's heirs, assigns, or estate as a result of permitting the agent to exercise the authority granted by the power of attorney. (c) [Repealed,  28 ch 50 SLA 2016.]
In AS 13.26.600 - 13.26.695, (1) benefits from government programs or civil or military service means a benefit, a program, or assistance provided under a statute or regulation, including social security, Medicare, and Medicaid; (2) good faith means honesty in fact; (3) incapacity means inability of an individual to manage property or business affairs because the individual (A) has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or (B) is (i) missing; (ii) detained, including incarcerated in a penal system; or (iii) outside the United States and unable to return; (4) retirement plan means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary, or owner, including a plan or account under the following sections of 26 U.S.C. (Internal Revenue Code): (A) an individual retirement account under 26 U.S.C. 408 (Internal Revenue Code), as amended; (B) a Roth IRA under 26 U.S.C. 408A (Internal Revenue Code), as amended; (C) an individual retirement account under 26 U.S.C. 408(q) (Internal Revenue Code), as amended; (D) an annuity or custodial account under 26 U.S.C. 403(b) (Internal Revenue Code), as amended; (E) a pension, profit-sharing, stock bonus, or other retirement plan qualified under 26 U.S.C. 401(a) (Internal Revenue Code), as amended; (F) a plan under 26 U.S.C. 457(b) (Internal Revenue Code), as amended; and (G) a nonqualified deferred compensation plan under 26 U.S.C. 409A (Internal Revenue Code), as amended.
The legislature recognizes that many Alaskans, for reasons of incapacity or minority, are in need of a guardian or conservator. Often these persons cannot find a person able and willing to serve as guardian or conservator. The legislature intends through AS 13.26.700 - 13.26.750 to establish the function of public guardian for the purpose of furnishing guardianship and conservatorship services. It further intends by establishing this function to provide assistance to guardians throughout the state in securing necessary services for their wards and to assist the courts, attorneys, visitors, respondents, and proposed guardians in the orderly and expeditious handling of guardianship proceedings.
(a) The office of public advocacy (AS 44.21.400) shall serve as the public guardian. (b) A court may order the public guardian to act as full guardian, partial guardian, conservator, or special conservator for a person who is determined under this chapter to be in need of guardianship or conservatorship service if no person or private guardianship association is willing and qualified to perform the function.
(a) The public guardian has the same powers and duties with respect to the public guardian's wards and protected persons as a private guardian or conservator. (b) The public guardian, when appointed as guardian or conservator, shall endeavor, for as long as practical, to find a suitable private guardian or conservator for the public guardian's ward or protected person. For each ward and protected person, the public guardian shall include in its annual report under AS 13.26.276(a) to the court having jurisdiction of the ward or protected person information on the availability of a private guardian or conservator. (c) The public guardian shall (1) establish and maintain relationships with governmental, public, and private agencies, institutions, and organizations to assure the most effective guardianship or conservatorship program for each ward and protected person; (2) visit each of the public guardian's wards and protected persons at least once every quarter to monitor their welfare; (3) keep and maintain financial and statistical records of all cases in which the public guardian provides guardianship or conservatorship services; (4) provide information and referrals to the public regarding guardianship and conservatorship proceedings, but not information that would identify a particular case; (5) assist guardians and court-appointed visitors of wards and respondents in the preparation and revision of guardianship plans and reports; (6) assist guardians to understand the disabilities of wards and to foster the increased independence of wards; (7) assist guardians in securing the rights, benefits, and services to which their wards are entitled; (8) develop and maintain a current listing of public and private medical, mental health, social advocacy, educational, rehabilitative, counseling, therapeutic, homemaking, recreational, and financial services and programs available to assist wards and protected persons and their families. (d) The public guardian may (1) contract for services necessary to carry out the duties of the public guardian's office; (2) accept the services of volunteer workers or consultants and reimburse them for their necessary expenses. (e) The records required to be kept and maintained under (c)(3) of this section are confidential and are not subject to inspection or copying under AS 40.25.110 - 40.25.120 unless the records are relevant to an investigation or proceeding involving the public guardian or a case in which the public guardian provided guardianship or conservatorship services.
The public guardian may, on the public guardian's own motion or at the request of the court, intervene in a guardianship or conservatorship proceeding if the public guardian or the court considers the intervention to be justified because (1) an appointed guardian or conservator is not fulfilling duties; (2) the estate is subject to waste as a result of the costs of the guardianship or conservatorship; (3) a willing and qualified guardian or conservator is not available; or (4) the best interests of the ward, respondent, protected person, or person who is the subject of a conservatorship proceeding require the intervention.
The public guardian may employ staff and delegate to members of the staff or to volunteers the powers and duties as guardian or conservator and other powers and duties under this chapter. However, the public guardian retains responsibility for the proper performance of the delegated powers and duties. The public guardian may only delegate powers and duties under this chapter to an individual who meets the eligibility requirements of AS 13.26.311 and has passed the criminal history record information check under AS 08.26.070. In addition, the individual must either hold a current certification as a guardian from a nationally recognized organization at the time of the delegation or apply for and receive that certification within one year of the delegation.
(a) The commissioner of administration may establish by regulation a schedule of reasonable fees for the costs of the public guardian's services. The fee schedule established may be based upon the ability of the ward or protected person to pay for guardian services but may not exceed the actual cost of providing public guardian services. The office of public advocacy shall charge and collect the fees established under this subsection, but may waive collection of a fee upon a finding that collection is not economically feasible or in the public interest. (b) [Repealed,  79 ch 63 SLA 1993.]  (c) The public guardian may investigate the financial status of (1) a person who requests the appointment of the public guardian as the person's guardian or conservator; and (2) a ward for whom a court has appointed the public guardian. (d) The public guardian may require a person described in (c) of this section to execute and deliver written requests or authorizations necessary under law to provide the public guardian with access to records of public or private sources, otherwise confidential, needed to evaluate the person's financial eligibility. The public guardian may, upon request and without payment of fees otherwise required by law, obtain information from any office of the state or of a political subdivision or agency of the state that possesses public records. (e) Before the office of public advocacy releases a ward's funds following the termination of the public guardian's appointment, the office may collect from the ward's funds held by the office the reasonable value of the services rendered without cost to the ward or protected person. (f) The annual estimated balance in the account maintained under AS 37.05.142 may be used by the legislature to make appropriations to the Department of Administration to carry out the purposes of AS 44.21.400 - 44.21.410 (office of public advocacy).
A court of this state may treat a foreign country as if it were a state for the purpose of applying AS 13.27.010 - 13.27.210, 13.27.400, 13.27.410, and 13.27.490.
(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter. The court may allow the parties to participate in the communication. Except as otherwise provided in (b) of this section, the court shall make a record of the communication. (b) Courts may communicate concerning administrative matters that involve schedules, calendars, and court records without making a record.
(a) In a guardianship or protective proceeding in this state, a court may request the appropriate court of another state to (1) hold an evidentiary hearing; (2) order a person in that state to produce evidence or give testimony under procedures of that state; (3) order that an evaluation or assessment be made of the respondent; (4) order any appropriate investigation of a person involved in a proceeding; (5) forward to the court a certified copy of the transcript or other record of a hearing under (1) of this subsection or any other proceeding, any evidence otherwise produced under (2) of this subsection, and any evaluation or assessment prepared in compliance with an order under (3) or (4) of this subsection; (6) issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person; (7) issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 C.F.R. 160.103, as amended. (b) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in (a) of this section, a court of this state has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.
(a) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may request that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms on which the testimony is to be taken. (b) In a guardianship or protective proceeding, a court in this state may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. A court of this state shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.
AS 13.27.100 - 13.27.180 provide the exclusive basis for subject matter jurisdiction for a court of this state to appoint a guardian or issue a protective order for an adult.
A court of this state has jurisdiction to appoint a guardian or issue a protective order for a respondent if (1) this state is the respondent's home state; (2) on the date the petition is filed, this state is a significant-connection state, and (A) the respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this state is a more appropriate forum; or (B) the respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes an appointment or issues an order, (i) a petition for an appointment or order is not filed in the respondent's home state; (ii) an objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and (iii) the court in this state concludes that it is an appropriate forum under the factors set out in AS 13.27.140; (3) this state does not have jurisdiction under either (1) or (2) of this section and the respondent's home state and all significant-connection states have declined to exercise jurisdiction under AS 13.27.140 because (A) this state is the more appropriate forum; and (B) jurisdiction in this state is consistent with the constitutions of this state and the United States; or (4) the requirements for special jurisdiction under AS 13.27.120 are met.
(a) A court of this state lacking jurisdiction under AS 13.27.110 has special jurisdiction to (1) appoint a guardian in an emergency for a term not exceeding 90 days for a respondent who is physically present in this state; (2) issue a protective order with respect to real or tangible personal property located in this state; (3) appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to AS 13.27.200. (b) If a petition for the appointment of a guardian in an emergency is brought in this state and this state was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.
Except as otherwise provided in AS 13.27.120, a court that has appointed a guardian or issued a protective order consistent with this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.
(a) A court of this state having jurisdiction under AS 13.27.110 to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum. (b) If a court of this state declines to exercise its jurisdiction under (a) of this section, it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state. (c) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including (1) any expressed preference of the respondent; (2) whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation; (3) the length of time the respondent was physically present in or was a legal resident of this or another state; (4) the distance of the respondent from the court in each state; (5) the financial circumstances of the respondent's estate; (6) the nature and location of the evidence; (7) the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence; (8) the familiarity of the court of each state with the facts and issues in the proceeding; and (9) if an appointment were made, the court's ability to monitor the conduct of the guardian or conservator.
(a) If, at any time, a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may (1) decline to exercise jurisdiction; (2) exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct; the exercise of limited jurisdiction under this paragraph may include staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or (3) continue to exercise jurisdiction after considering (A) the extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction; (B) whether it is a more appropriate forum than the court of any other state under the factors set out in AS 13.27.140(c); and (C) whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of AS 13.27.110. (b) If a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this state or a governmental subdivision, agency, or instrumentality of this state unless authorized by law other than this chapter.
If a petition for the appointment of a guardian or issuance of a protective order is brought in this state and this state was not the respondent's home state on the date the petition was filed, in addition to complying with the notice requirements of this state, notice of the petition must be given to those persons who would be entitled to notice of the petition if a proceeding were brought in the respondent's home state. The notice must be given in the same manner as notice is required to be given in this state.
Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this state under AS 13.27.120(a)(1) or (2), if a petition for the appointment of a guardian or issuance of a protective order is filed in this state and in another state and neither petition has been dismissed or withdrawn, the following rules apply: (1) if the court in this state has jurisdiction under AS 13.27.110, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to AS 13.27.110 before the appointment or issuance of the order; (2) if the court in this state does not have jurisdiction under AS 13.27.110, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state; if the court in the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the other state determines that the court in this state is a more appropriate forum.
In AS 13.27.100 - 13.27.180, (1) emergency means a circumstance that likely will result in substantial harm to a respondent's health, safety, or welfare, and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent's behalf; (2) home state means the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; or, if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending with the six months before the filing of the petition; (3) significant-connection state means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available; in determining whether a respondent has a significant connection with a particular state, the court shall consider (A) the location of the respondent's family and others required to be notified of the guardianship or protective proceeding; (B) the length of time the respondent, at any time, was physically present in the state and the duration of any absences; (C) the location of the respondent's property; and (D) the extent to which the respondent has other ties to the state, such as voting registration, filing of state or local tax returns, vehicle registration, driver's license, social relationships, and receipt of services.
(a) A guardian or conservator appointed in this state may petition the court to transfer the guardianship or conservatorship to another state. (b) Notice of a petition to transfer a guardianship or conservatorship under (a) of this section must be given to the persons who would be entitled to notice of a petition in this state for the appointment of a guardian or conservator. (c) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed under (a) of this section. (d) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that (1) the incapacitated person is physically present in or is reasonably expected to move permanently to the other state; (2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and (3) plans for care and services for the incapacitated person in the other state are reasonable and sufficient. (e) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that (1) the protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors set out in AS 13.27.180(3); (2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and (3) adequate arrangements will be made for management of the protected person's property. (f) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship if the court receives (1) a provisional order issued under provisions similar to AS 13.27.210 accepting the proceeding from the court to which the proceeding is to be transferred; and (2) the documents required to terminate a guardianship or conservatorship in this state.
(a) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to those in AS 13.27.200, the guardian or conservator must petition the court in this state to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer. (b) Notice of a petition under (a) of this section must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state. (c) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court may hold a hearing on a petition filed under (a) of this section. (d) The court shall issue a provisional order granting a petition filed under (a) of this section unless (1) an objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or (2) the guardian or conservator is ineligible for an appointment in this state. (e) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this state on its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to AS 13.27.200 transferring the proceeding to this state. (f) Not later than 90 days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state. (g) In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person's incapacity and the appointment of the guardian or conservator. (h) The denial by a court of this state of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state under AS 13.26.266 or 13.26.401 if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this state, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this state by filing as a foreign judgment in a court, in any appropriate judicial district of this state, certified copies of the order and letters of office.
If a conservator has been appointed in another state and a petition for a protective order is not pending in this state, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this state by filing as a foreign judgment in a court of this state, in any judicial district in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond.
(a) On registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this state all powers authorized in the order of appointment except as prohibited under the laws of this state, including maintaining actions and proceedings in this state and, if the guardian or conservator is not a resident of this state, subject to any conditions imposed on nonresident parties. (b) A court of this state may grant any relief available under this chapter and other law of this state to enforce a registered order.
In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
This chapter modifies, limits, and supersedes 15 U.S.C. 7001, et seq. (Electronic Signatures in Global and National Commerce Act), but does not modify, limit, or supersede 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).
Nothing in this chapter limits the rights of an incapacitated person available in a guardianship or conservatorship proceeding in this state under AS 13.26.
In this chapter, (1) adult means an individual who has reached 18 years of age; (2) conservator means a person appointed by the court to administer the property of an adult, including a person appointed under AS 13.26.401; (3) guardian means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under AS 13.26.266; however, if the person was appointed as a full guardian under AS 13.26, the person has the powers and duties set out under AS 13.26.316; (4) guardianship order means an order appointing a guardian; (5) guardianship proceeding means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued; (6) incapacitated person means an adult for whom a guardian has been appointed; (7) party means the respondent, petitioner, guardian, conservator, or any other interested person allowed by the court to participate in a guardianship or protective proceeding; (8) person means, except in the terms incapacitated person or protected person, an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity; (9) protected person means an adult for whom a protective order has been issued; (10) protective order means an order appointing a conservator or other court order related to management of an adult's property; (11) protective proceeding means a judicial proceeding in which a protective order is sought or has been issued; (12) record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; (13) respondent means an adult for whom a protective order or the appointment of a guardian is sought; (14) state means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
This chapter may be cited as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
(a) A substitute decision-making document for property executed outside this state is valid in this state if, when the document was executed, the execution complied with the law of the jurisdiction indicated in the document or, if jurisdiction is not indicated, the law of the jurisdiction in which the document was executed. (b) Except as provided in AS 13.52.010 and 13.52.247, a substitute decision- making document for health care or personal care executed outside this state is valid in this state if, when the document was executed, the execution complied with (1) the law of the jurisdiction indicated in the document or, if jurisdiction is not indicated, the law of the jurisdiction in which the document was executed; or (2) the laws of this state other than this chapter. (c) Except as otherwise provided by a law of this state other than this chapter, a photocopy or electronically transmitted copy of an original substitute decision-making document has the same effect as the original.
The meaning and effect of a substitute decision-making document and the authority of the decision maker are determined by the law of the jurisdiction indicated in the substitute decision-making document or, if jurisdiction is not indicated, the law of the jurisdiction in which the substitute decision-making document was executed.
(a) Except as otherwise provided in AS 13.26.615, a person that in good faith accepts a substitute decision-making document without actual knowledge that the document is void, invalid, or terminated, or that the purported decision maker's authority is void, invalid, or terminated, may, without inquiry, assume that the document is genuine, valid, and still in effect and that the decision maker's authority is genuine, valid, and still in effect. (b) A person that is asked to accept a substitute decision-making document may request and may, without further investigation, rely on (1) the decision maker's assertion of a fact concerning the individual for whom a decision will be made, the decision maker, or the document; (2) a translation of the document if the document contains, in whole or in part, a language other than English; and (3) an opinion of counsel regarding any matter of law concerning the document if the person requesting the opinion provides in a record the reason for the request.
(a) Except as otherwise provided in (b) of this section or by a law of this state other than this chapter, a person shall, within a reasonable time, accept a substitute decision-making document that purportedly meets the validity requirements of AS 13.28.010 and may not require an additional or different form of document for authority granted in the document presented. (b) A person is not required to accept a substitute decision-making document if (1) the person otherwise would not be required in the same circumstances to act if requested by the individual who executed the document; (2) the person has actual knowledge of the termination of the decision maker's authority or the document; (3) the person's request under AS 13.28.030(b) for the decision maker's assertion of fact, a translation, or an opinion of counsel is refused; (4) the person in good faith believes that the document is not valid or that the decision maker does not have the authority to request a particular transaction or action; or (5) the person makes, or has actual knowledge that another person has made, a report to the office of the Department of Health that administers adult protective services stating a belief that the individual for whom a decision will be made may be subject to abuse, neglect, exploitation, or abandonment by the decision maker or a person acting for or with the decision maker. (c) A person that, in violation of this section, refuses to accept a substitute decision-making document is subject to (1) a court order mandating acceptance of the document; and (2) liability as provided by the court rules of this state for attorney fees and costs incurred in an action or proceeding that mandates acceptance of the document.
The remedies under this chapter are not exclusive and do not abrogate any right or remedy under a law of this state other than this chapter.
In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
This chapter modifies, limits, or supersedes 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), but does not modify, limit, or supersede 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).
In this chapter, (1) decision maker means a person authorized to act for an individual under a substitute decision-making document or to whom a decision maker's authority is delegated, whether denominated a decision maker, agent, attorney-in-fact, proxy, representative, original decision maker, co-decision maker, successor decision maker, or otherwise; (2) good faith means honesty in fact; (3) health care means a service or procedure to maintain, diagnose, treat, or otherwise affect an individual's physical or mental condition; (4) person means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity; (5) personal care means an arrangement or a service to provide an individual with shelter, food, clothing, transportation, education, recreation, social contact, or assistance with the activities of daily living; (6) property means anything that may be subject to ownership, whether real or personal or legal or equitable, or any interest or right in the thing; (7) record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; (8) substitute decision-making document means a record created by an individual to authorize a decision maker to act for the individual with respect to property, health care, or personal care.
This chapter may be cited as the Uniform Recognition of Substitute Decision-Making Documents Act.
(a) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection includes a written provision that (1) money or other benefits due to, controlled by, or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later; (2) money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or (3) property controlled by or owned by the decedent before death that is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later. (b) An instrument referred to in (a) of this section may designate as a beneficiary, payee, or owner, a trustee named or to be named in the will of the person entitled to make the designation. The designation may be made before or after the execution of the designator's will. It is not necessary to the validity of the underlying trust that there be in existence a trust corpus other than the right to receive benefits or to exercise the rights resulting from the designation. (c) This section does not limit rights of creditors under other laws of this state. (d) The money or other benefits paid under a provision for a nonprobate transfer on death in a life insurance contract or a retirement plan are not subject to (1) the debts of the individual who was insured under the life insurance contract or who was a participant in the retirement plan; or (2) the claims of the creditors of the individual who was insured under the life insurance contract or who was a participant in the retirement plan. (e) The provisions of (d) of this section apply even if (1) the provision for a nonprobate transfer on death is contained in the life insurance contract or the retirement plan and designates the person to whom the money or other benefits are to be paid if the person who is the owner or insured under the life insurance policy or the participant in the retirement plan does not select a beneficiary; (2) the life insurance contract, retirement plan, or a provision for a nonprobate transfer on death in the life insurance contract or retirement plan makes the money or other benefits payable, directly or indirectly, to (A) a decedent's estate or the personal representative of a decedent's estate, except that, if the decedent owes money for child support arrearages, for spousal support arrearages, or under AS 47.07.055, the provisions of (d) of this section do not apply; in this subparagraph, personal representative has the meaning given in AS 13.06.050; (B) a trustee of a trust established under a will, except that, if the decedent owes money for child support arrearages, for spousal support arrearages, or under AS 47.07.055, the provisions of (d) of this section do not apply; or (C) a trustee of a trust instrument that is separate from the life insurance contract or retirement plan and that designates the ultimate beneficiary; (3) a trust to which the money or other benefits are payable may be amended, revoked, or both amended and revoked, or is funded or unfunded; or (4) the settlor of the trust to which the money or other benefits are payable has reserved all rights of ownership in the life insurance contract or under the retirement plan. (f) The provisions of (d) of this section do not limit the rights of the owner of a life insurance contract to pledge or assign by contract the money or other benefits from a life insurance contract as collateral for the debts of the owner. (g) In (d) of this section, (1) life insurance contract means a life insurance policy, an annuity contract, an endowment contract, and a contract entered into by an insurance company in connection with, supplemental to, or in settlement of a life insurance policy, an annuity contract, or an endowment contract; (2) retirement plan means (A) a retirement plan that is qualified under 26 U.S.C. 401(a), 26 U.S.C. 403(a), 26 U.S.C. 403(b), 26 U.S.C. 408, 26 U.S.C. 408A, or 26 U.S.C. 409 (Internal Revenue Code); and (B) the amounts held in the teachers' retirement system under AS 14.25, judicial retirement system under AS 22.25, public employees' retirement system under AS 39.35, or elected public officers' retirement system under former AS 39.37.
In AS 13.33.201 - 13.33.227, (1) account means a contract of deposit between a depositor and a financial institution and includes a checking account, savings account, certificate of deposit, and share account; (2) agent means a person authorized to make account transactions for a party; (3) beneficiary means a person named as one to whom sums on deposit in an account are payable on request after death of all parties or for whom a party is named as trustee; (4) financial institution means an organization authorized to do business under state or federal laws relating to financial institutions, and includes a bank, trust company, savings bank, building and loan association, savings and loan company or association, and credit union; (5) multiple-party account means an account payable on request to one or more of two or more parties whether or not a right of survivorship is mentioned; (6) party means a person who, by the terms of an account, has a present right, subject to request, to payment from the account other than as a beneficiary or agent; (7) payment of sums on deposit includes withdrawal, payment to a party or third person pursuant to check or other request, and a pledge of sums on deposit by a party, or a setoff, reduction, or other disposition of all or part of an account pursuant to a pledge; (8) POD designation means the designation of (A) a beneficiary in an account payable on request to one party during the party's lifetime and on the party's death to one or more beneficiaries, or to one or more parties during their lifetime and on death of all of them to one or more beneficiaries; or (B) a beneficiary in an account in the name of one or more parties as trustee for one or more beneficiaries if the relationship is established by the terms of the account and there is no subject of the trust other than the sums on deposit in the account, whether or not payment to the beneficiary is mentioned; (9) receive, as it relates to notice to a financial institution, means receipt in the office or branch office of the financial institution in which the account is established, but if the terms of the account require notice at a particular place, in the place required; (10) request means a request for payment complying with all terms of the account, including special requirements concerning necessary signatures and regulations of the financial institution; but, for purposes of AS 13.33.201 - 13.33.227, if terms of the account condition payment on advance notice, a request for payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for payment; (11) sums on deposit means the balance payable on an account, including interest and dividends earned, whether or not included in the current balance, and deposit life insurance proceeds added to the account by reason of death of a party; (12) terms of the account includes the deposit agreement and other terms and conditions, including the form, of the contract of deposit.
AS 13.33.201 - 13.33.227 do not apply to (1) an account established for a partnership, joint venture, or other organization for a business purpose; (2) an account controlled by one or more persons as an agent or trustee for a corporation, unincorporated association, or charitable or civic organization; or (3) a fiduciary or trust account in which the relationship is established other than by the terms of the account.
(a) An account may be for a single party or multiple parties. A multiple-party account may be with or without a right of survivorship between the parties. Subject to AS 13.33.212(c), either a single-party account or a multiple-party account may have a POD designation, an agency designation, or both. (b) An account established before, on, or after January 1, 1997, whether in the form prescribed in AS 13.33.204 or in another form, is either a single-party account or a multiple-party account, with or without right of survivorship, and with or without a POD designation or an agency designation, within the meaning of AS 13.33.201 - 13.33.227 and is governed by AS 13.33.201 - 13.33.227.
(a) A contract of deposit that contains provisions in substantially the following form establishes the type of account provided, and the account is governed by the provisions of AS 13.33.201 - 13.33.227 applicable to an account of that type: UNIFORM SINGLE-OR MULTIPLE-PARTY ACCOUNT FORM PARTIES (Name one or more parties):OWNERSHIP (Select one and initial): SINGLE-PARTY ACCOUNT MULTIPLE-PARTY ACCOUNT Parties own the account in proportion to net contributions unless there is clear and convincing evidence of a different intent.RIGHTS AT DEATH (Select one and initial): SINGLE-PARTY ACCOUNT At death of party, ownership passes as part of party's estate. SINGLE-PARTY ACCOUNT WITH POD (PAY ON DEATH) DESIGNATION (Name one or more beneficiaries): At death of party, ownership passes to POD beneficiaries and is not part of party's estate. MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP At death of party, ownership passes to surviving parties. MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND POD (PAY ON DEATH) DESIGNATION(Name one or more beneficiaries): At death of last surviving party, ownership passes to POD beneficiaries and is not part of last surviving party's estate. MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF SURVIVORSHIP At death of party, deceased party's ownership passes as part of deceased party's estate.AGENCY (POWER OF ATTORNEY) DESIGNATION (Optional) Agents may make account transactions for parties but do not have ownership or rights at death unless named as POD beneficiaries. (To add agency designation to account, name one or more agents): (Select one and initial): AGENCY DESIGNATION SURVIVES DISABILITY OR INCAPACITY OF PARTIES AGENCY DESIGNATION TERMINATES ON DISABILITY OR INCAPACITY OF PARTIES. (b) A contract of deposit that does not contain provisions in substantially the form provided in (a) of this section is governed by the provisions of AS 13.33.201 - 13.33.227 applicable to the type of account that most nearly conforms to the depositor's intent.
(a) By writing signed by all parties, the parties may designate as agent of all parties on an account a person other than a party. (b) Unless the terms of an agency designation provide that the authority of the agent terminates on disability or incapacity of a party, the agent's authority survives disability and incapacity. The agent may act for a disabled or incapacitated party until the authority of the agent is terminated. (c) Death of the sole party or last surviving party terminates the authority of an agent.
The provisions of AS 13.33.211 - 13.33.216 concerning beneficial ownership as between parties or as between parties and beneficiaries apply only to controversies between those persons and their creditors and other successors and do not apply to the right of those persons to payment as determined by the terms of the account. AS 13.33.221 - 13.33.227 govern the liability and setoff rights of financial institutions that make payments under AS 13.33.221 - 13.33.227.
(a) During the lifetime of all parties, an account belongs to the parties in proportion to the net contribution of each to the sums on deposit, unless there is clear and convincing evidence of a different intent. As between parties married to each other, in the absence of proof otherwise, the net contribution of each is presumed to be an equal amount. (b) A beneficiary in an account having a POD designation does not have a right to sums on deposit during the lifetime of any party. (c) An agent in an account with an agency designation does not have a beneficial right to sums on deposit. (d) In this section, net contribution of a party means the sum of all deposits to an account made by or for the party, less all payments from the account made to or for the party that have not been paid to or applied to the use of another party and a proportionate share of any charges deducted from the account, plus a proportionate share of any interest or dividends earned, whether or not included in the current balance. The term includes deposit life insurance proceeds added to the account by reason of death of the party whose net contribution is in question.
(a) Except as otherwise provided in AS 13.33.201 - 13.33.227, on death of a party, sums on deposit in a multiple-party account belong to the surviving party or parties. If two or more parties survive and one is the surviving spouse of the decedent, the amount to which the decedent immediately before death was beneficially entitled under AS 13.33.211 belongs to the surviving spouse. If two or more parties survive and none is the surviving spouse of the decedent, the amount to which the decedent immediately before death was beneficially entitled under AS 13.33.211 belongs to the surviving parties in equal shares and augments the proportion to which each survivor immediately before the decedent's death was beneficially entitled under AS 13.33.211, and the right of survivorship continues between the surviving parties. (b) In an account with a POD designation (1) on death of one of two or more parties, the rights in sums on deposit are governed by (a) of this section; (2) on death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries; if two or more beneficiaries survive, sums on deposit belong to them in equal and undivided shares, and there is no right of survivorship in the event of death of a beneficiary after coming into ownership; if no beneficiary survives, sums on deposit belong to the estate of the last surviving party. (c) Sums on deposit in a single-party account without a POD designation, or in a multiple-party account that, by the terms of the account, is without right of survivorship, are not affected by death of a party, but the amount to which the decedent immediately before death was beneficially entitled under AS 13.33.211 is transferred as part of the decedent's estate. A POD designation in a multiple-party account without right of survivorship is ineffective. For purposes of this section, designation of an account as a tenancy in common establishes that the account is without right of survivorship. (d) The ownership right of a surviving party or beneficiary, or of the decedent's estate, in sums on deposit is subject to requests for payment made by a party before the party's death, whether paid by the financial institution before or after death, or unpaid. The surviving party or beneficiary, or the decedent's estate, is liable to the payee of an unpaid request for payment. The liability is limited to a proportionate share of the amount transferred under this section to the extent necessary to discharge the request for payment.
(a) Rights at death under AS 13.33.212 are determined by the terms of the account at the death of a party. The terms of the account may be altered by written notice given by a party to the financial institution to change the terms of the account or to stop or vary payment under the terms of the account. The notice shall be signed by a party and received by the financial institution during the party's lifetime. (b) A right of survivorship arising from the express terms of the account, AS 13.33.212, or a POD designation may not be altered by will.
Except as provided in AS 13.12.201 - 13.12.214 or as a consequence of and to the extent directed by AS 13.33.215, a transfer resulting from the application of AS 13.33.212 is effective by reason of the terms of the account involved and AS 13.33.201 - 13.33.227 and is not testamentary or subject to AS 13.06 - AS 13.21.
(a) If other assets of the estate are insufficient, a transfer resulting from a right of survivorship or POD designation under AS 13.33.201 - 13.33.227 is not effective against the estate of a deceased party to the extent needed to pay claims against the estate and statutory allowances to the surviving spouse and children. (b) A surviving party or beneficiary who receives payment from an account after death of a party is liable to account to the personal representative of the decedent for a proportionate share of the amount received to which the decedent immediately before death was beneficially entitled under AS 13.33.211, to the extent necessary to discharge the claims and allowances described in (a) of this section remaining unpaid after application of the decedent's estate. A proceeding to assert the liability may not be commenced unless the personal representative has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the decedent. The proceeding must be commenced within one year after death of the decedent. (c) A surviving party or beneficiary against whom a proceeding to account is brought may join as a party to the proceeding a surviving party or beneficiary of any other account of the decedent. (d) Sums recovered by the personal representative shall be administered as part of the decedent's estate. This section does not affect the protection from claims of the personal representative or estate of a deceased party provided in AS 13.33.226 for a financial institution that makes payment in accordance with the terms of the account.
(a) A deposit of community property in an account does not alter the community character of the property or community rights in the property, but a right of survivorship between parties married to each other arising from the express terms of the account or AS 13.33.212 may not be altered by will. (b) AS 13.33.201 - 13.33.227 do not affect the law governing tenancy by the entirety.
A financial institution may enter into a contract of deposit for a multiple-party account to the same extent it may enter into a contract of deposit for a single-party account and may provide for a POD designation and an agency designation in either a single-party account or a multiple-party account. A financial institution need not inquire as to the source of a deposit to an account or as to the proposed application of a payment from an account.
A financial institution, on request, may pay sums on deposit in a multiple-party account to (1) one or more of the parties whether or not another party is disabled, incapacitated, or deceased when payment is requested and whether or not the party making the request survives another party; or (2) the personal representative, if any, or, if there is none, the heirs or devisees of a deceased party if proof of death is presented to the financial institution showing that the deceased party was the survivor of all other persons named on the account either as a party or beneficiary, unless the account is without right of survivorship under AS 13.33.212.
A financial institution, on request, may pay sums on deposit in an account with a POD designation to (1) one or more of the parties whether or not another party is disabled, incapacitated, or deceased when the payment is requested and whether or not a party survives another party; (2) the beneficiary or beneficiaries if proof of death is presented to the financial institution showing that the beneficiary or beneficiaries survived all persons named as parties; or (3) the personal representative, if any, or, if there is none, the heirs or devisees of a deceased party if proof of death is presented to the financial institution showing that the deceased party was the survivor of all other persons named on the account either as a party or beneficiary.
A financial institution, on request of an agent under an agency designation for an account, may pay to the agent sums on deposit in the account whether or not a party is disabled, incapacitated, or deceased when the request is made or received and whether or not the authority of the agent terminates on the disability or incapacity of a party.
If a financial institution is required or permitted to make payment under AS 13.33.201 - 13.33.227 to a minor designated as a beneficiary, payment may be made under AS 13.46.
(a) Payment made under AS 13.33.201 - 13.33.227 in accordance with the terms of the account discharges the financial institution from all claims for amounts so paid, whether or not the payment is consistent with the beneficial ownership of the account as between parties, beneficiaries, or their successors. Payment may be made whether or not a party, beneficiary, or agent is disabled, incapacitated, or deceased when payment is requested, received, or made. (b) Protection under this section does not extend to payments made after a financial institution has received written notice from a party, or from the personal representative, surviving spouse, or heir or devisee of a deceased party, to the effect that payments in accordance with the terms of the account, including one having an agency designation, should not be permitted, and the financial institution has had a reasonable opportunity to act on it when the payment is made. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in a request for payment if the financial institution is to be protected under this section. Unless a financial institution has been served with process in an action or proceeding, other notice or other information shown to have been available to the financial institution does not affect its right to protection under this section. (c) A financial institution that receives written notice under this section or otherwise has reason to believe that a dispute exists as to the rights of the parties may refuse, without liability, to make payments in accordance with the terms of the account. (d) Protection of a financial institution under this section does not affect the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of sums on deposit in accounts or payments made from accounts.
Without qualifying any other statutory right to setoff or lien and subject to any contractual provision, if a party is indebted to a financial institution, the financial institution has a right to setoff against the account. The amount of the account subject to setoff is the proportion to which the party is, or immediately before death was, beneficially entitled under AS 13.33.211 or, in the absence of proof of that proportion, an equal share with all parties.
In AS 13.33.301 - 13.33.310, (1) beneficiary form means a registration of a security that indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner; (2) POD means pay on death; (3) register, including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities; (4) registering entity means a person who originates or transfers a security title by registration and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities; (5) security means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer and includes a certificated security, an uncertificated security, and a security account; (6) security account means (A) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death; (B) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death; or (C) an investment management account, or a custody account, with a trust company or with a trust division of a bank with trust powers; this subparagraph includes, whether or not credited to the account before the owner's death, (i) the securities in the account; (ii) a cash balance in the account; and (iii) cash, cash equivalents, interest, earnings, or dividends that are earned or declared on a security in the account; (7) TOD means transfer on death.
Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entirety, or as owners of community property held in survivorship form, and not as tenants in common.
(a) A security may be registered in beneficiary form if the form is authorized by this or a similar TOD statute of the state of (1) organization of the issuer or registering entity; (2) the registering entity's principal office; (3) the office of the registering entity's transfer agent or the registering entity's office making the registration; or (4) the owner's address at the time of registration. (b) A registration governed by the law of a jurisdiction in which this or similar TOD legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.
Registration in beneficiary form may be shown by the words transfer on death or the abbreviation TOD, or by words pay on death or the abbreviation POD, after the name of the registered owner and before the name of a beneficiary.
The designation of a TOD beneficiary on a registration in beneficiary form does not have an effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.
On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.
(a) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by AS 13.33.301 - 13.33.310. (b) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in AS 13.33.301 - 13.33.310. (c) A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with AS 13.33.307 and does so in good faith reliance on (1) the registration; (2) AS 13.33.301 - 13.33.310; and (3) information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. (d) The protections of AS 13.33.301 - 13.33.310 do not extend to a reregistration or payment made after a registering entity has received written notice from a claimant to any interest in the security objecting to implementation of a registration in beneficiary form. Other notice or other information available to the registering entity does not affect its right to protection under AS 13.33.301 - 13.33.310. (e) The protection provided by AS 13.33.301 - 13.33.310 to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.
(a) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and AS 13.33.301 - 13.33.310 and is not testamentary. (b) AS 13.33.301 - 13.33.310 do not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.
(a) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests for registrations in beneficiary form and for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions established under this subsection may provide for proving death, avoiding or resolving problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for lineal descendants per stirpes. This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions. (b) The following are illustrations of registrations in beneficiary form that a registering entity may authorize: (1) sole owner-sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.; (2) multiple owners-sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S Brown Jr.; (3) multiple owners-primary and secondary (substituted) beneficiaries: John S Brown Mary B Brown JT TEN TOD John S Brown Jr. SUB BENE Peter Q Brown; or John S Brown Mary B Brown JT TEN TOD John S Brown Jr. LDPS.
(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.
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.
(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.
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 under AS 13.36.076 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.
(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.
(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 under AS 13.36.076; (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 under AS 13.36.076; 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,  22 ch 105 SLA 1998.]  (f) Unless the laws of this state govern the validity, construction, and administration of the trust under (c) of this section, the laws of this state govern the administration of a trust and the courts of this state have exclusive jurisdiction over the trust and its trustees while the trust is administered in this state unless the governing instrument of the trust (1) specifies that the law of a jurisdiction other than this state governs the administration of the trust; (2) expressly prohibits a change in the choice of law for the administration of the trust; and (3) expressly states that a change in the choice of law for the administration of the trust may not occur, even if a trustee from another jurisdiction becomes a trustee of the trust. (g) In (f) of this section, a trust is considered to be administered in this state if (1) the governing instrument of the trust specifies that the trust is to be administered in this state; (2) the principal office of the trustee having custody of the trust's principal assets and records is located in this state, unless the trustee elects to maintain the administration of the trust in the state whose law is specified in the governing instrument to govern; (3) the only trustee who is acting to administer the trust is a qualified person, unless the trustee elects to maintain the administration of the trust in the state whose law is specified in the governing instrument to govern; (4) a majority of all trustees acting to administer the trust consists of qualified persons, unless a majority of the trustees elects to maintain the administration of the trust in the state whose law is specified in the governing instrument to govern; or (5) a majority of the trustees are not qualified persons and a majority of the trustees, including at least one trustee who is a qualified person, executes an acknowledged instrument that this state shall be the primary place of administration for the trust. (h) The trustee shall make the election in (g)(2) - (4) of this section by an instrument that is acknowledged and filed in a court of the state whose law is specified in the governing instrument to govern.
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.
(a) The situs of a foreign trust is moved to this state when the trust satisfies the conditions listed in AS 13.36.035(c)(1) - (4) 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.
(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.
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.
(a) 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. (b) If the terms of a trust do not specify the compensation or method for determining the compensation of the trustee, the trustee is entitled to compensation that is reasonable under the circumstances. If the terms of a trust do not specify the compensation or method for determining the compensation of a person employed by the trustee, the person employed by the trustee is entitled to compensation that is reasonable under the circumstances. If the terms of a trust specify the compensation or method for determining the compensation of a trustee and if the trustee is compensated according to these terms, the compensation paid to the trustee is presumed to be reasonable. If the terms of a trust specify the compensation or method for determining the compensation of a person employed by the trustee and if the person employed by the trustee is compensated according to these terms, the compensation paid to the person employed by the trustee is presumed to be reasonable. If a trust specifies the compensation or method for determining the compensation paid to the trustee or person employed by the trustee and if the trustee or person employed by the trustee is compensated accordingly, an interested person who seeks review of the compensation has the burden of proving by a preponderance of the evidence that the compensation paid to the trustee or the person employed by the trustee is not reasonable.
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.
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.
(a) Except as otherwise provided in (c) or (d) of this section, a person designated as a trustee accepts the trusteeship (1) by substantially complying with a method of acceptance provided by the terms of the trust; or (2) if the terms of the trust do not provide a method, or the method provided in the terms of the trust is not expressly made exclusive, and except as otherwise provided by the trust instrument, by accepting delivery of the trust property, exercising powers as a trustee, performing duties as a trustee, or otherwise indicating acceptance of the trusteeship. (b) A person designated as a trustee who has not yet accepted the trusteeship may reject the trusteeship. A person designated as a trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is considered to have rejected the trusteeship. (c) A person designated as a trustee, without accepting the trusteeship, may act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to a qualified beneficiary. (d) A person designated as a trustee, without accepting the trusteeship, may inspect or investigate trust property to determine potential liability under environmental or other law or for another purpose.
(a) Except as otherwise provided in the trust instrument, (1) co-trustees who are unable to reach a unanimous decision may decide to act by majority decision; (2) if a vacancy occurs in a co-trusteeship, the remaining co-trustee or co-trustees may continue to act for the trust with full authority; (3) a co-trustee shall participate in the performance of the co-trustee's function unless (A) the co-trustee is unavailable to perform the function because of absence, illness, disqualification under other law, or temporary incapacity; or (B) the co-trustee has properly delegated the performance of the function to another co-trustee; (4) if a co-trustee is unavailable to perform duties because of absence, illness, disqualification under other law, or temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining co-trustee or a majority of the remaining co-trustees may act with full authority for the trust. (b) Except as prohibited by the terms of the trust, a co-trustee may, by a signed, written instrument, delegate to a co-trustee the performance of a function. Unless a delegation is irrevocable, a co-trustee may revoke a delegation. (c) Notwithstanding the other provisions of this section, if the terms of a trust instrument provide for the appointment of more than one trustee but confer on one or more of the trustees, to the exclusion of other trustees, the power to direct or prevent specified actions of other trustees, the excluded trustees shall act in accordance with the exercise of the power. An excluded trustee under this subsection is not liable, individually or as a fiduciary, for a consequence that results from complying with the exercise of the power, regardless of the information available to the excluded trustee. An excluded trustee does not have an obligation to review, inquire, investigate, or make recommendations or evaluations with respect to the exercise of the power. A trustee having the power is liable to the beneficiaries as a fiduciary with respect to the exercise of the power as if the excluded trustees were not in office and has the exclusive obligation to account to and to defend an action brought by the beneficiaries with respect to the exercise of the power. In this subsection, power means the power to direct or prevent specified actions by other trustees.
(a) Except as otherwise provided in the trust instrument, a vacancy in a trusteeship occurs if (1) a person designated as a trustee rejects the trusteeship or is considered to have rejected the trusteeship under AS 13.36.071; (2) a person designated as a trustee cannot be identified or does not exist; (3) a trustee resigns; (4) a trustee is disqualified or removed under AS 13.36.076; (5) a trustee dies; (6) a guardian or conservator is appointed for an individual serving as a trustee. (b) Except as otherwise provided in the trust instrument, if one or more co-trustees remain in office, it is not necessary to fill a vacancy in a trusteeship, but a vacancy in a trusteeship shall be filled if the trust does not have a remaining trustee. (c) A vacancy in a trusteeship of a noncharitable trust that is required to be filled shall be filled in the following order of priority: (1) under the terms of the trust; (2) by a person, other than a beneficiary, appointed by unanimous agreement of the qualified beneficiaries; or (3) by a person appointed by the court. (d) A vacancy in a trusteeship of an exclusively charitable trust that is required to be filled shall be filled in the following order of priority: (1) under the terms of the trust; (2) by a person selected by the unanimous consent of the charitable organizations expressly designated to receive distributions under the terms of the trust; or (3) by a person appointed by the court. (e) Except as otherwise provided in the trust instrument, a qualified beneficiary who may be represented and bound by another person under AS 13.06.120 may have the qualified beneficiary's consent to the appointment of a trustee as specified in this section given by the person who may represent the qualified beneficiary under AS 13.06.120.
(a) Except as otherwise provided in the trust instrument, a trustee may resign (1) not less than 30 days after providing written notice of the intent to resign to the qualified beneficiaries and all co-trustees; or (2) with the approval of the court. (b) In approving the resignation of a trustee, the court may issue orders and impose conditions on the resigning trustee that are reasonably necessary for the protection of the trust property. (c) Except as otherwise provided in the trust instrument, a liability of a resigning trustee for acts or omissions of the trustee is not discharged or affected by the trustee's resignation.
(a) A trustee may be removed from office (1) by the decision of a trust protector under AS 13.36.370(b)(1); (2) by the decision of another person specified in the trust instrument; (3) under a procedure specified in the trust instrument; (4) by a court on petition by the settlor, a co-trustee, a qualified beneficiary, or the court on its own initiative, if (A) the court finds there is a basis for removal under (b) of this section, there is not a trust protector or another specified person who is currently acting and who may be contacted by the settlor, trustee, or qualified beneficiary in person, by mail, electronically, or by another means, and there is not a procedure for removal specified in the trust instrument; or (B) notwithstanding the appointment of a trust protector under AS 13.36.370 or the existence of a procedure for trustee removal specified in the trust instrument, there has been a serious breach of trust as specified under (b)(1) of this section. (b) A trustee may be removed from office under (a)(4) of this section if the court finds that removal would be in the best interests of all the beneficiaries and, (1) for (a)(4)(A) or (B) of this section, the trustee has committed a serious breach of trust under the terms of the trust and AS 13.36.070 - 13.36.290; or (2) for (a)(4)(A) of this section, (A) lack of cooperation among co-trustees substantially impairs the administration of the trust; (B) a trustee is unfit, is unwilling, or persistently fails to administer the trust effectively; or (C) there has been a substantial change of circumstances not anticipated by the settlor, removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available. (c) When appointing a successor trustee, the court shall first consider the successor trustees named in the trust or, if the trust is a testamentary trust, in the testator's will, or, if a successor is not named, another procedure contained in the instrument for the appointment of a successor. When selecting a successor trustee, the court shall also consider the tax, creditor liability, and similar consequences of selecting a certain individual or institution. (d) Pending a final decision on a petition to remove a trustee, or instead of or in addition to removing a trustee, the court may order relief that is appropriate and necessary to protect the trust property or the interest of the beneficiaries. (e) A qualified beneficiary who may be represented and bound by another person under AS 13.06.120 may have the qualified beneficiary's consent to the removal of a trustee as specified in this section given by the person who may represent the qualified beneficiary under AS 13.06.120.
Except as otherwise provided in the trust instrument, (1) unless a co-trustee remains or the court otherwise orders, and until the trust property is delivered to a successor trustee or another person entitled to the trust property, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property; (2) a trustee who has resigned or been removed shall proceed expeditiously to deliver the trust property in the trustee's possession to a co-trustee, a successor trustee, or another person entitled to the trust property.
Except as otherwise provided in the trust instrument, (1) a trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for (A) expenses that were properly incurred in the administration of the trust; and (B) expenses that were not properly incurred in the administration of the trust to the extent necessary to prevent unjust enrichment of the trust; (2) if the trustee advances money for the protection of the trust, the trustee has a lien against trust property to secure reimbursement of the money and payment of reasonable interest on the money.
(a) Except as otherwise provided in the trust instrument, instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish to the person a certification of trust containing the following information: (1) that the trust exists and the date the trust instrument was executed; (2) the identity of the settlor; (3) the identity and address of the currently acting trustee; (4) the powers of the trustee; (5) the revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust; (6) the authority of co-trustees to sign or otherwise authenticate documents related to the trust and whether all or fewer than all co-trustees are required to exercise the trustee powers; (7) the trust's taxpayer identification number, if the trust has a taxpayer identification number; and (8) the manner of taking title to the property of the trust. (b) A certification of trust may be signed or otherwise authenticated by any trustee. (c) A certification of trust must state that the trust has not been revoked, modified, or amended in a manner that would cause the representations contained in the certification of trust to be incorrect. (d) A certification of trust is not required to contain the dispositive terms of a trust. (e) A recipient of a certification of trust may require the trustee to furnish copies of the excerpts from the original trust instrument, including amendments to the trust that designate the trustee and confer on the trustee the power to act in the pending transaction for which the certification of trust is being furnished. (f) A person who acts in reasonable reliance on a certification of trust without knowledge that the representations contained in the certification of trust are incorrect is not liable to another person for acting in reasonable reliance on the certification of trust and may assume without inquiry the existence of the facts contained in the certification. Knowledge of the terms of the trust may not be inferred solely because the person relying on the certification is holding a copy of part of the trust instrument. (g) A person who in good faith enters into a transaction in reasonable reliance on a certification of trust may enforce the transaction against the trust property as if the representations contained in the certification were correct. (h) A person making a demand for the trust instrument in addition to a certification of trust or excerpts from the trust instrument is liable to the state for a civil penalty not to exceed $1,000, plus the actual damages associated with the demand for the trust instrument, if a court determines that the person did not act in good faith in demanding the trust instrument. (i) A person who is found liable for a civil penalty under (h) of this section shall also be liable for actual court costs and attorney fees associated with a demand made under (h) of this section. (j) This section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust.
(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 that 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.
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.
A trustee is under a continuing duty to administer the trust at a place appropriate to the purposes of the trust and to its sound, efficient management. If the principal place of administration becomes inappropriate for any reason, the court may enter any order furthering efficient administration and the interests of beneficiaries, including, if appropriate, release of registration, removal of the trustee under AS 13.36.076, and appointment of a trustee in another state. Trust provisions relating to the place of administration and to changes in the place of administration or of trustee control unless compliance would be contrary to efficient administration or the purposes of the trust.
(a) [Repealed,  22 ch 105 SLA 1998.]  (b) Subject to AS 13.36.105 - 13.36.220, a trustee is personally liable for obligations arising from ownership or control of property of the trust estate or for torts committed in the course of administration of the trust estate only if personally at fault. (c) Claims based on contracts entered into by a trustee in a fiduciary capacity, on obligations arising from ownership or control of the trust estate, or on torts committed in the course of trust administration may be asserted against the trust estate by proceeding against the trustee in the trustee's fiduciary capacity, whether or not the trustee is personally liable for them. (d) The question of liability as between the trust estate and the trustee individually may be determined in a proceeding for accounting surcharge or indemnification or other appropriate proceeding.
(a) Unless resolved or barred under (b) or (c) of this section, and notwithstanding the lack of adequate disclosure, all claims against a trustee who has issued a report received by the beneficiary and who has informed the beneficiary of the location and availability of records for examination by the beneficiary are barred unless a proceeding to assert the claims is commenced within three years after the beneficiary's receipt of the report. (b) If a trustee petitions a court for an order approving a report that adequately discloses the existence of a potential claim, serves the report on all beneficiaries to be bound by the report, gives the beneficiaries at least 60 days' notice of the court proceeding, and notifies the beneficiary that a claim must be begun within 45 days after the beneficiary is served with notice of the court proceeding, all potential claims of the beneficiaries against the trustee are barred unless the claims are served on the trustee and filed with the court within 45 days after the beneficiaries are served with notice of the court proceeding. (c) If a trustee serves a report on a beneficiary that adequately discloses the existence of a potential claim against the trustee, the trustee informs the beneficiary that a proceeding to assert any claim against the trustee must be commenced by the beneficiary within six months after receipt of the report, and the beneficiary fails to assert a claim against the trustee, all claims of the beneficiary are barred. (d) A beneficiary is considered to have received a report if, being an adult, the report is received by the beneficiary personally, or, if the beneficiary is a person who may be represented and bound by another person under AS 13.06.120, the report is received by the person who may represent the person under AS 13.06.120. (e) A report adequately discloses the existence of a potential claim against a trustee if it provides sufficient information for the beneficiary to know of the potential claim or to be expected to reasonably inquire into the existence of a claim with respect to the matter. (f) This section does not apply to claims brought by a beneficiary against a trustee for fraud committed by the trustee. (g) The report of a trustee under this section is considered to provide adequate notice to the beneficiary that there is a time limitation for filing a claim against the trustee if the cover page or top of the first page of the report contains the following language in at least 14 point bold type: BY RECEIPT OF THIS REPORT, ANY ACTION YOU MAY HAVE AS A BENEFICIARY AGAINST THE TRUSTEE FOR BREACH OF TRUST BASED ON ANY MATTER ADEQUATELY DISCLOSED IN THIS REPORT MAY BE BARRED UNLESS THE ACTION IS BEGUN WITHIN SIX MONTHS AFTER YOU RECEIVE THIS REPORT. IF YOU HAVE ANY QUESTIONS, YOU MAY WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING THIS REPORT. (h) In this section, report means a final report or an interim report for a certain period, and includes an accounting.
Unless otherwise provided by the trust instrument, an amendment of the trust instrument, or a court order, the powers of a trustee are attached to the office and are not personal.
(a) Without authorization by a court, a trustee may exercise the powers conferred by the terms of the trust and, except as limited by the terms of the trust, the powers conferred by this chapter. (b) This chapter does not affect the power of a court to (1) relieve a trustee from provisions contained in the terms of the trust that restrict the exercise of powers; (2) confer on a trustee additional powers, whether or not the powers are authorized by the terms of the trust; or (3) restrict the exercise of a power otherwise given to the trustee by the terms of the trust or this chapter. (c) The grant of a power to a trustee, whether under the terms of the trust, this chapter, or a court, does not alone govern the exercise of the power.
Except as otherwise provided by this chapter, in addition to the powers conferred by the terms of the trust, a trustee may perform all actions necessary to accomplish the proper management, investment, and distribution of the trust property, including the power (1) to collect, hold, and retain trust property received from a settlor or another person; the property may be retained even if it includes property in which the trustee is personally interested; (2) to accept additions to the property of the trust from a settlor or another person; (3) to continue or to participate in the operation of a business or other enterprise that is part of the trust property and to effect an incorporation, dissolution, or other change in the form of the organization of the business or enterprise; (4) to acquire or dispose of property, for cash or on credit, at public or private sale or by exchange; (5) to manage, control, divide, develop, improve, exchange, partition, change the character of, or abandon trust property; (6) to encumber, mortgage, or pledge trust property for a term within or extending beyond the term of the trust in connection with the exercise of a power vested in the trustee; (7) to make ordinary or extraordinary repairs, alterations, or improvements in buildings or other trust property; to demolish improvements; and to raze existing or erect new party walls or buildings; (8) to subdivide or develop land; to dedicate land to public use; to make or obtain the vacation of plats and to adjust boundaries; to adjust differences in valuation on exchange or partition by giving or receiving consideration; and to dedicate easements to public use without consideration; (9) to enter into a lease for any purpose as lessor or lessee with or without the option to purchase or renew and for a term within or extending beyond the term of the trust; (10) to enter into a lease or arrangement for exploration and removal of gas, oil, or other minerals or geothermal energy; and to enter into a community oil lease, a pooling agreement, or a unitization agreement; (11) to grant an option involving disposition of trust property or to take an option for the acquisition of property, including an option that is exercisable beyond the duration of the trust; (12) with respect to shares of stock of a domestic or foreign corporation, a membership in a nonprofit corporation, or other property, to (A) vote in person and to give proxies to exercise any voting rights with respect to the shares, memberships, or property; (B) waive notice of a meeting or to give consent to the holding of a meeting; and (C) authorize, ratify, approve, or confirm an action that could be taken by shareholders, members, or property owners; (13) to pay calls, assessments, and other sums chargeable to or accruing against or on a securities account; (14) to sell or exercise stock subscription or conversion rights; (15) to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise; to participate in voting trusts, pooling arrangements, and foreclosures; and, in connection with a reorganization, consolidation, merger, dissolution, liquidation, voting trust, pooling arrangement, or foreclosure, to deposit securities with, transfer title, and delegate discretion to a protective or other committee as the trustee considers advisable; (16) to deposit securities in a securities depository; (17) to insure the property of the trust against damage or loss and to insure the trustee against liability with respect to third persons; (18) to borrow money for a trust purpose to be repaid from trust property; (19) to pay or contest a claim, to settle a claim by or against the trust by compromise, arbitration, or otherwise, and to release, in whole or in part, a claim belonging to the trust; (20) to pay taxes, assessments, reasonable compensation of the trustee, employees, and agents of the trust, and other expenses incurred in the collection, care, administration, and protection of the trust; (21) to make loans out of trust property to an eligible beneficiary or an eligible third-party entity on terms and conditions the trustee considers to be fair and reasonable under the circumstances and to guarantee loans to the eligible beneficiary or eligible third-party entity by encumbrances on trust property; in this paragraph, (A) eligible beneficiary means a beneficiary of the trust who is currently eligible for or entitled to a distribution of income or principal of the trust; (B) eligible third-party entity means a third-party entity if more than 50 percent of the equity of the entity is owned by the trust or by one or more beneficiaries of the trust; (22) to pay an amount distributable to a beneficiary, whether or not the beneficiary is under a legal disability, by paying the amount to the beneficiary or by paying the amount to another person for the use or benefit of the beneficiary; (23) to make a distribution of property and money in divided or undivided interests, pro rata or otherwise, and to adjust resulting differences in valuation; (24) to employ accountants, attorneys, investment advisers, appraisers, or other persons, even if they are associated or affiliated with the trustee, to advise or assist the trustee in the performance of administrative duties; (25) to inspect or investigate property that the trustee has been asked to hold or property owned or operated by an entity in which the trustee holds or has been asked to hold an interest for the purpose of determining the application of environmental law to the property and to take action to prevent, abate, or otherwise remedy an actual or potential violation of an environmental law affecting property held directly or indirectly by the trustee; (26) to establish for an asset a reserve for depreciation, depletion, or obsolescence, and to decide, under law, how and in what proportions a receipt or disbursement is to be credited, charged, or apportioned between principal and income; (27) to execute and deliver instruments that are useful to accomplish or facilitate the exercise of the trustee's powers; (28) to prosecute or defend an action, claim, or proceeding in order to protect trust property and the trustee in the performance of the trustee's duties; and (29) to consider discretionary distributions to a beneficiary as being made from capital gains realized during the year.
A dissenting trustee who has joined another trustee in exercising a power is not liable to the beneficiaries or to others for the consequences of the exercise of the power if the dissenting trustee joins because of a requirement for unanimous trustee consent to the exercise of the power. The dissenting trustee's dissent must be presented in writing to a co-trustee and a legally competent beneficiary or, if the beneficiary is a minor or an incompetent person, the representative of the beneficiary. A trustee who is not authorized to exercise a power is not liable to the beneficiaries or to others for (1) the exercise by a co-trustee of the power; or (2) the failure to exercise that power.
A trustee of a trust owning corporate stock is liable for a loss resulting to the beneficiaries from a failure to use reasonable care in deciding how to vote the stock and in voting the stock only if personally at fault.
Whenever a bank account is, by entries made on the books of the depositor and the bank at the time of the deposit, created exclusively for the purpose of paying dividends, interest, interest coupons, salaries, wages, or pensions or other employee benefits, and the depositor at the time of opening the account does not expressly declare otherwise, the depositor is considered a trustee of the account for the creditors to be paid from the account, subject to any power of revocation that the depositor may have reserved by agreement with the bank.
If a beneficiary for whom a trust bank account is created under AS 13.36.125 does not present the beneficiary's claim to the bank for payment within one year after the claim is due, the depositor who created the trust may revoke the trust as to the beneficiary.
(a) A trustee of a trust owning stocks, bonds, notes, debentures, or other written obligations of a public or private corporation may hold the obligations in the name of a nominee, without mention of the trust in the records of the corporation or in the stock certificate or stock registration book of the corporation, if (1) the trust records and all reports or accounts rendered by the trustee clearly show the ownership of the stocks, bonds, notes, debentures, or other written obligations of the public or private corporation by the trustee and the facts regarding the holding by the trustee; and (2) the nominee deposits with the trustee a signed statement showing the trust ownership, endorses the stock certificate or other title instruments for the obligations in blank, and does not have possession of or access to the stock certificate or other title instruments for the obligations except under the immediate supervision of the trustee. (b) A trustee holding obligations under (a) of this section is personally liable for a loss to the trust resulting from an act of the nominee in connection with the stocks, bonds, notes, debentures, or other written obligations held under (a) of this section.
Except as provided in AS 13.36.145, a corporate trustee may not lend trust funds to itself or an affiliate, or to a director, an officer, or an employee of itself or an affiliate, and a noncorporate trustee may not lend trust funds to itself or to a relative, an employer, an employee, or a partner or other business associate.
(a) A corporate trustee that is subject to regulation and supervision by state or federal authorities may deposit with itself trust funds that are being held out of necessity pending investment, distribution, or payment of debts if the corporate trustee (1) pays into the trust for the deposit the interest the corporate trustee is required by state or federal law to pay on uninvested trust funds or, if there is not a state or federal law requiring the payment of interest, at the same rate of interest the corporate trustee pays on similar nontrust deposits; and (2) maintains in its trust department as security for the deposit a separate fund consisting of securities that are legal for trust investments and that are at all times equal in total market value to the amount of the deposit, except that the security is not required to the extent that the deposit is insured or given a preference by state or federal law. (b) The separate fund of securities required by (a)(2) of this section shall be marked as a separate fund for (a)(2) of this section. Withdrawals from or additions to the separate fund may be made from time to time, as long as the required value is maintained. The income of the securities in the separate fund belongs to the corporate trustee. In the statements of its financial condition published or delivered to the Department of Commerce, Community, and Economic Development, the corporate trustee shall show as separate items the amount of trust funds that it has deposited with itself and the amount of securities that it holds as security for the payment of the deposits.
A trustee, unless expressly authorized by the trust instrument, may not directly or indirectly lease, buy, or sell property for the trust from or to (1) itself or an affiliate; (2) a director, an officer, or an employee of the trustee or an affiliate; or (3) a relative, an employer, or a partner or other business associate.
(a) Notwithstanding AS 13.36.107, a trustee who is not an independent trustee may not exercise a power to make or cause to be made a discretionary distribution of either principal or income (1) to or for the direct or indirect benefit of the trustee individually or to any person holding a power to remove and replace the trustee, except to the extent that the power is exercised in accordance with an ascertainable standard that relates to the health, education, maintenance, or support of the trustee or person; (2) to satisfy a legal obligation that is owed by the trustee individually or by any person holding a power to remove and replace this trustee; or (3) if the distribution would constitute a taxable gift from the trustee individually or from a person holding a power to remove and replace the trustee. (b) The prohibitions of (a) of this section apply to a trustee even if the governing instrument states that the trustee may make distributions in the trustee's uncontrolled, absolute, or total discretion, or that distributions are not subject to review by a court, or the governing instrument otherwise indicates that distributions by the trustee are not subject to reasonableness when the trustee exercises discretion. (c) If a trustee is prohibited by (a) of this section from exercising a power and if one or more other trustees are not prohibited by (a) of this section from exercising the power, the other trustees may exercise the power. If there is not a trustee who can exercise a power prohibited under (a) of this section, a party in interest may apply to the superior court to appoint an independent trustee to exercise the power. (d) The provisions of (a) of this section do not prohibit a trustee from making payments, including reimbursement of and compensation of an independent trustee appointed under (c) of this section, for the protection of the trust or the assets of the trust, or for the expenses, losses, or liabilities incurred in the collection, care, administration, or protection of the trust or the assets of the trust. (e) Except as provided in (f) of this section, this section applies to (1) a trust that is created on or after August 9, 2000; or (2) the decisions and actions of a trust that is in existence on August 9, 2000, if the decisions are made, or the actions occur, on or after August 9, 2000. (f) The application provisions of (e) of this section do not apply if (1) the terms of the trust, including the terms as amended, expressly provide that this section does not apply and either specifically refer to this section or otherwise clearly demonstrate the intent that this section does not apply; or (2) the trust is irrevocable and all parties in interest elect under (g) of this section not to be subject to the application of this section; an election under this paragraph must be made on or before January 1, 2003, or three years after the date on which the trust becomes irrevocable, whichever date is later; however, notwithstanding AS 13.36.080, the trustee does not have a duty to inform the parties in interest of this election. (g) The election allowed under (f) of this section shall be made by a written declaration that is delivered to the trustee. (h) The prohibitions of (a) of this section do not apply to a trustee with respect to trust property, including income from the trust property, if the trust property would, upon the death of the trustee, be included, for any reason other than the exercise of a power prohibited by (a) of this section, in the gross estate of the trustee for federal estate tax purposes. (i) This section does not create a new cause of action, or impair a cause of action existing before August 9, 2000, if the new or existing cause of action relates to the exercise of a power prohibited by (a) of this section that was exercised before August 9, 2000. (j) In this section, independent trustee means a trustee that is not related or subordinate, as defined in 26 U.S.C. 672(c), to the person having the power to remove the trustee or to any beneficiary.
If the transaction is fair to both trusts and if the transaction is not prohibited by the instruments creating the trustee relationship, a corporate trustee may sell to itself as trustee of a trust the following held by the corporate trustee as trustee for another trust: (1) stocks, bonds, and other securities listed on a securities exchange supervised by the United States Securities and Exchange Commission; and (2) obligations of the United States treasury and obligations of United States government agencies.
(a) An authorized trustee with unlimited discretion to invade trust principal may appoint part or all of that principal to a trustee of an appointed trust for, and only for the benefit of, one or more current beneficiaries of the invaded trust to the exclusion of other current beneficiaries. A permissible appointee of a power of appointment held by a beneficiary of the appointed trust is not considered a beneficiary of the appointed trust, regardless of whether the permissible appointee is a current beneficiary or a successor and remainder beneficiary. (b) An authorized trustee exercising the power under (a) of this section may grant a discretionary power of appointment, including a presently exercisable power of appointment, in the appointed trust to one or more of the current beneficiaries of the invaded trust, to the extent that the beneficiary who is granted the power to appoint is authorized to receive the principal outright under the terms of the invaded trust. A permissible appointee is not limited to the beneficiaries of the invaded trust. (c) Under (a) and (b) of this section, if the beneficiaries of the invaded trust are described by a class, the beneficiaries of the appointed trust may include present or future members of that class. (d) An authorized trustee with the power to invade trust principal but without unlimited discretion may appoint part or all of the principal of the trust to a trustee of an appointed trust if the current beneficiaries of the appointed trust are the same as the current beneficiaries of the invaded trust and the successor and remainder beneficiaries of the appointed trust are the same as the successor and remainder beneficiaries of the invaded trust. The shares of the current beneficiaries of the appointed trust must be the same as the shares of the current beneficiaries of the invaded trust, and the shares of the successor and remainder beneficiaries of the appointed trust must be the same as the shares of the successor and remainder beneficiaries of the invaded trust. (e) If the authorized trustee exercises the power under (d) of this section, the appointed trust must include the same standard authorizing the trustee to distribute the income or invade the principal of the appointed trust as the standard in the invaded trust. However, the standard authorizing the trustee to distribute the income or invade the principal of the appointed trust may be changed if the trustee appoints to an appointed trust that is a special needs trust, a pooled trust, or a third-party trust. (f) If an authorized trustee exercises the power under (d) and (e) of this section to extend the duration of the appointed trust beyond the duration of the invaded trust for any period after the invaded trust would have otherwise terminated under the provisions of the invaded trust, the appointed trust, in addition to the language required to be included in the appointed trust under (e) of this section, may also provide an additional trustee with unlimited discretion to invade the principal of the appointed trust during the extended duration. The trustee with unlimited discretion continues to be subject to the restrictions in (d) - (h) of this section. (g) Under (d) - (f) of this section, if the beneficiaries of the invaded trust are described by a class, the beneficiaries of the appointed trust include present or future members of that class. (h) If the authorized trustee exercises the power under (d) - (g) of this section and if the invaded trust grants a power of appointment to a beneficiary of the trust, the appointed trust must grant this power of appointment in the appointed trust, and the class of permissible appointees shall be the same as in the invaded trust.
(a) An exercise of the power to invade trust principal under AS 13.36.157 is the exercise of a special power of appointment. (b) The appointed trust to which an authorized trustee appoints the assets of the invaded trust under AS 13.36.157 may have a duration that is longer than the duration set out in the invaded trust. (c) If an authorized trustee has unlimited discretion to invade the principal of a trust and if the same trustee or another trustee has a power, not dependent on unlimited discretion, to invade principal under the trust instrument, the authorized trustee having unlimited discretion may exercise the power of appointment under AS 13.36.157(a) - (c). (d) An authorized trustee may exercise the power to appoint in favor of an appointed trust under AS 13.36.157 whether or not there is a current need to invade principal under the terms of the invaded trust. (e) An authorized trustee exercising the power under AS 13.36.157 - 13.36.159 has a fiduciary duty to exercise the power in the best interests of one or more proper objects of the exercise of the power and as a prudent person would exercise the power under the prevailing circumstances. The authorized trustee may not exercise the power under AS 13.36.157 - 13.36.159 if there is substantial evidence of a contrary intent of the settlor and it cannot be established that the settlor would be likely to have changed this intention under the circumstances existing at the time the trustee exercises the power. The provisions of the invaded trust may not be viewed alone as substantial evidence of a contrary intent of the settlor unless the invaded trust expressly prohibits the exercise of the power in the manner intended by the authorized trustee. (f) The provisions of AS 13.36.157 - 13.36.159 may not be construed to abridge the right of a trustee to appoint property further in trust under the terms of the governing instrument of a trust, another provision of law, or common law, or as directed by a court having jurisdiction over the trust. (g) Nothing in AS 13.36.157 - 13.36.159 creates or implies a duty to exercise a power to invade principal. An inference of impropriety may not be made, and liability is not incurred, as a result of an authorized trustee not exercising the power conferred under AS 13.36.157. (h) A power authorized by AS 13.36.157 may be exercised, subject to the provisions of AS 13.36.159(a), unless expressly prohibited by the terms of the governing instrument. A general prohibition against amending or revoking the invaded trust and a provision that constitutes a spendthrift clause do not preclude the exercise of a power under AS 13.36.157. (i) An authorized trustee may not exercise a power authorized by AS 13.36.157 to (1) reduce, limit, or modify a beneficiary's current right to a mandatory distribution of income or principal, a mandatory annuity or unitrust interest, a right to withdraw a percentage of the value of the trust, or a right to withdraw a specified dollar amount, if the mandatory right has come into effect with respect to the beneficiary, but the mandatory right may be reduced, limited, or modified during any extended duration of the trust; however, notwithstanding the other provisions in this paragraph, but subject to the other limitations in AS 13.36.157 - 13.36.159, an authorized trustee may exercise a power authorized by AS 13.36.157 to appoint to an appointed trust that is a special needs trust, a pooled trust, or a third-party trust; (2) decrease or indemnify against a trustee's liability or exonerate a trustee from liability for failure to exercise reasonable care, diligence, and prudence unless the court having jurisdiction over the trust specifies otherwise; (3) eliminate a provision granting another person the right to remove or replace the authorized trustee exercising the power under AS 13.36.157 unless a court having jurisdiction over the trust specifies otherwise; (4) fix as binding and conclusive the value of an asset for purposes of distribution, allocation, or otherwise; or (5) jeopardize (A) the deduction or exclusion originally claimed with respect to a contribution to the invaded trust that qualified for the annual exclusion under 26 U.S.C. 2503(b), the marital deduction under 26 U.S.C. 2056(a) or 26 U.S.C. 2523(a), or the charitable deduction under 26 U.S.C. 170(a), 26 U.S.C. 642(c), 26 U.S.C. 2055(a), or 26 U.S.C. 2522(a) (Internal Revenue Code); (B) the qualification of a transfer as a direct skip under 26 U.S.C. 2642(c) (Internal Revenue Code); (C) the election to treat a corporation as a subchapter S corporation under 26 U.S.C. 1362 (Internal Revenue Code); or (D) another specific tax benefit for which a contribution originally qualified for income, gift, estate, or generation-skipping transfer tax purposes under 26 U.S.C. (Internal Revenue Code). (j) Before exercising the power under AS 13.36.157, an authorized trustee shall consider the tax implications of the exercise of the power. (k) An authorized trustee may not exercise a power described in AS 13.36.157 - 13.36.159 in violation of the limitations on validity in AS 34.27.051 or 34.27.100, or the restrictions on exercising certain powers in AS 13.36.153 by trustees who are not independent. A violation voids the entire exercise of the power unless the exercise is modified to correct the violation. (l) Unless a court having jurisdiction over the trust directs otherwise, an authorized trustee may not exercise a power authorized by AS 13.36.157 to change the provisions regarding the determination of the compensation of a trustee. The commissions or other compensation payable to the trustees of the invaded trust may continue to be paid to the trustees of the appointed trust during the term of the appointed trust and shall be determined in the same manner as for the invaded trust. (m) A trustee may not receive a payment, a commission, or other compensation for appointing property from the invaded trust to an appointed trust under AS 13.36.157. However, a trustee may be compensated at a reasonable rate for the time spent considering and implementing the exercise of a power to appoint. (n) Unless the invaded trust expressly provides otherwise, the provisions in AS 13.36.157 - 13.36.159 apply to (1) a trust, whether testamentary or inter vivos, governed by the laws of this state, including a trust whose governing law has been changed to the laws of this state; and (2) a trust that has a trustee who is an individual domiciled in this state, or a trustee that is an entity having an office in this state, if a majority of the trustees select this state as the location for the primary administration of the trust and the selection is made by an instrument in writing that is signed and acknowledged by a majority of the trustees; the instrument exercising this selection shall be kept with the records of the invaded trust. (o) In this section, Internal Revenue Code means the Internal Revenue Code of the United States (26 U.S.C.) as it exists on September 9, 2013 and as it is amended from time to time.
(a) Unless the authorized trustee provides otherwise, the appointment of (1) all of the assets making up the principal of the invaded trust to an appointed trust includes subsequently discovered assets of the invaded trust and undistributed principal of the invaded trust acquired after the appointment to the appointed trust; (2) a part but not all of the assets making up the principal of the invaded trust to an appointed trust may not include subsequently discovered assets belonging to the invaded trust or principal paid to or acquired by the invaded trust after the appointment to the appointed trust; those subsequently discovered assets remain the assets of the invaded trust. (b) The exercise of the power to appoint to an appointed trust under AS 13.36.157 shall be evidenced by an instrument in writing that is signed, dated, and acknowledged by the authorized trustee. The exercise of the power is effective 30 days after the date of service of the instrument as specified in (d) of this section, unless the persons entitled to notice consent in writing to a sooner effective date. (c) An authorized trustee may exercise the power authorized by AS 13.36.157 without the consent of the settlor or a person interested in the invaded trust and without court approval. However, an authorized trustee may seek court approval for the exercise. When seeking court approval, notice shall be sent to all qualified beneficiaries. (d) A copy of the invaded trust, the appointed trust, and the instrument exercising the power shall be delivered to (1) the settlor, if living, of the invaded trust; (2) a person having the right, under the terms of the invaded trust, to remove or replace the authorized trustee exercising the power under AS 13.36.157; and (3) a qualified beneficiary or a person who may represent and bind a qualified beneficiary under AS 13.06.120. (e) Notice under (d) of this section to a qualified beneficiary is not required if the settlor has exempted the authorized trustee from providing notification or information to beneficiaries under AS 13.36.080(b). Notice under (d) of this section shall be provided under AS 13.06.110. (f) The instrument exercising the power must state whether the appointment is of all or part of the assets making up the principal of the invaded trust and, if a part, the approximate percentage of the value of the principal of the invaded trust that is the subject of the appointment. A failure to state whether the appointment is of all or part of the assets creates a presumption that only part of the assets is to be appointed. (g) A person entitled to notice under (d) of this section may object to the trustee's exercise of the power under AS 13.36.157 - 13.36.159 by serving a written notice of objection on the trustee before the effective date of the exercise of the power. The failure to object does not constitute consent. (h) The receipt of a copy of the instrument exercising the power does not, before the expiration of the limitation period in AS 13.36.100 with respect to a report disclosing the exercise, affect the right of a qualified beneficiary to object to the exercise of the power under AS 13.36.157 and to request the court to modify or to reverse the exercise. (i) A copy of the instrument exercising the power shall be kept with the records of the invaded trust.
A corporate trustee may not purchase for a trust shares of its own stock, or its bonds, or other securities, or the stock, bonds, or other securities of an affiliate.
If a person who is a trustee of two or more trusts mingles the funds of two or more trusts in the same aggregate of cash or in the same bank or brokerage account or other investment, and if a withdrawal is made from the cash aggregate, account, or investment by the trustee for the trustee's own benefit, for the benefit of a third person who is not a beneficiary or creditor of one or more of the trusts, or for an unknown purpose, the withdrawal must be charged first to the amount of the personal cash, credit, or other property, if any, of the trustee in the mingled fund, and, after the exhaustion of the trustee's cash, credit, or other property, then to the several trusts in proportion to their several interests in the cash, credit, or other property in the cash aggregate, account, or investment at the time of the withdrawal. Nothing in this section is intended to authorize the mingling of trust funds.
(a) Unless a governing instrument specifically refers to this section and provides otherwise, a trustee who makes an election under 26 U.S.C. 2056, 2056A, or 2523 (Internal Revenue Code), or who makes an allocation under 26 U.S.C. 2632 (Internal Revenue Code), may benefit personally from the election or allocation and is not required to reimburse another person interested in the election or allocation, to make an equitable adjustment, or to treat interested persons impartially with respect to the election or allocation. (b) Unless a governing instrument specifically refers to this section and provides otherwise, if an election is made under 26 U.S.C. 2056, 2056A, or 2523 (Internal Revenue Code), if an allocation is made under 26 U.S.C. 2632 (Internal Revenue Code), or if division of a trust benefits the persons interested in the trust, the trustee may divide the trust into two or more separate trusts of equal or unequal value if the terms of the separate resulting trusts are substantially identical to the terms of the trust before the division. The allocation of assets must be based on the fair market value of the assets at the time of the division. (c) Except as provided in (d) of this section, this section applies to (1) a trust that is created on or after August 9, 2000; or (2) the decisions and actions of a trust that is in existence on August 9, 2000 if the decisions are made or actions occur on or after August 9, 2000. (d) The application provisions of (c) of this section do not apply if (1) the terms of the trust, including the terms as amended, expressly provide that this section does not apply and either specifically refer to this section or otherwise clearly demonstrate the intent that this section does not apply; or (2) the trust is irrevocable and all parties in interest elect not to be subject to the application of this section; an election under this paragraph must be made on or before January 1, 2003, or three years after the date on which the trust becomes irrevocable, whichever date is later; however, notwithstanding AS 13.36.080, the trustee does not have a duty to inform the parties in interest of this election; the election allowed under this paragraph must be made by a written declaration delivered to the trustee.
(a) When an interest in real property is conveyed by deed to a person in a trust that is unenforceable under AS 09.25.010 - 09.25.020 and the intended trustee or the trustee's successor in interest holds title but refuses to carry out the trust because of AS 09.25.010 - 09.25.020, the intended trustee or the trustee's successor in interest, except to the extent that the successor in interest is a bona fide purchaser of a legal interest in the real property, shall convey the interest in real property to the settlor or the settlor's successor in interest. A court having jurisdiction may prescribe the conditions for conveying the interest to the settlor or the settlor's successor in interest. (b) If the intended trustee of an unenforceable trust under (a) of this section transfers part or all of the trustee's interest and the interest is transferred to a bona fide purchaser, the intended trustee is liable to the settlor or the settlor's successor in interest for the value, at the time of the transfer, of the interest transferred, less any offsets that a court determines to be equitable.
(a) When a trustee makes a contract that is within the trustee's powers as trustee or when a predecessor trustee has made a contract within the predecessor trustee's powers as trustee and a cause of action arises on the contract, the party in whose favor the cause of action has accrued may collect the judgment by execution on the trust property. (b) In an action under this section, the plaintiff is not required to prove that the trustee could have been reimbursed from the trust fund if the trustee had paid the plaintiff's claim. (c) A beneficiary or, in the case of a charitable trust, the attorney general and a corporation that is a beneficiary or agent in the performance of the charitable trust, may intervene in an action under this section and contest the right of the plaintiff to recover. (d) A judgment may not be rendered in favor of the plaintiff in an action under this section unless the plaintiff proves that, within 30 days after the beginning of the action or within another period set by the court and more than 30 days before obtaining the judgment, the plaintiff has notified each of the beneficiaries who is known to the trustee and who then has a present interest in the existence and nature of the action, or, in the case of a charitable trust, the attorney general of this state and a corporation that is a beneficiary or agent in the performance of the charitable trust. The notice shall be given by mailing copies of the notice with postage prepaid to the beneficiaries at their last known addresses. The trustee shall furnish the plaintiff with a list of names and addresses of the beneficiaries within 10 days after the plaintiff makes a written demand for the list. Notification of the persons on the list constitutes compliance with the duty placed on the plaintiff by this section. (e) The plaintiff in an action under this section may also hold the trustee who made the contract personally liable on the contract if the contract does not exclude the trustee's personal liability. In a contract action under this section, the addition of the word trustee or the words as trustee after the signature of a trustee to a contract creates a presumption, which may only be rebutted by clear and convincing evidence otherwise, of an intent to exclude the trustee from personal liability, and, unless the presumption is rebutted, the trustee is not personally liable under the contract.
(a) A trustee who has incurred personal liability for a tort committed in the administration of the trust is entitled to exoneration for the liability from the trust property if the trustee has not discharged the claim, or to reimbursement for the liability out of trust funds if the trustee has paid the claim, if the trustee or an officer or employee of the trustee was not guilty of personal fault in incurring the liability. (b) If a trustee has incurred personal liability for a tort committed in the administration of the trust and that tort increases the value of the trust property, the trustee is entitled to exoneration or reimbursement to the extent of the increase in value as a result of the tort even though the trustee would not otherwise be entitled to exoneration or reimbursement. (c) Nothing in this section shall be construed to change the existing law with regard to the liability of trustees of charitable trusts for torts of the trustees or their employees.
(a) If a trustee or a predecessor of the trustee incurs personal liability for a tort committed in the course of the trustee's administration, the trustee in the trustee's representative capacity may be sued and collection made from the trust property if the court determines in the tort action that (1) the trustee or the trustee's predecessor, or an officer or employee of the trustee or the trustee's predecessor, was not guilty of personal fault in incurring the liability; or (2) although the tort does not fall under (1) of this subsection, the tort increased the value of the trust property. (b) If the tort is within (a)(1) of this section, the full amount of proven damages may be collected from the trust property. (c) If the tort is within (a)(2) of this section, collection may not be made from the trust property except to the extent of the increase in the value of the trust property. (d) A beneficiary may intervene in an action under this section and contest the right of the plaintiff to recover. (e) In an action against the trustee in the trustee's representative capacity under this section, the plaintiff is not required to prove that the trustee could have secured reimbursement from the trust fund if the trustee paid the plaintiff's claim. (f) A judgment may not be rendered in favor of the plaintiff in an action under this section unless the trustee proves that within 30 days after the beginning of the action, or within another period set by the court and more than 30 days before obtaining the judgment, the trustee notifies each of the beneficiaries who is known to the trustee who then has a present interest in the existence and nature of the action. The notice shall be given by mailing copies of the notice with postage prepaid to the beneficiaries at their last known addresses. The trustee shall furnish the plaintiff with a list of names and addresses of the beneficiaries within 10 days after the plaintiff makes a written demand for the list. Notification of the persons on the list constitutes compliance with the duty placed on the plaintiff by this subsection. (g) Nothing in this section may be construed to change the existing law with regard to the liability of trustees of charitable trusts for torts of the trustees or their employees.
A trustee may be held personally liable for a tort committed by the trustee, or by the trustee's agents or employees in the course of their agency or employment, subject to the rights of exoneration or reimbursement under AS 13.36.180.
(a) The settlor of a trust affected by AS 13.36.105 - 13.36.220 may, by provision in the instrument creating the trust if the trust is created by a writing, by oral statement to the trustee at the time of the creation of the trust if the trust is created orally, or by an amendment of the trust if the settlor reserved the power to amend the trust, (1) relieve the trustee from any or all of the duties, restrictions, and liabilities that would otherwise be imposed on the trustee by AS 13.36.105 - 13.36.220; (2) alter or deny to the trustee any or all of the privileges and powers conferred on the trustee by AS 13.36.105 - 13.36.220; or (3) add duties, restrictions, liabilities, privileges, or powers, to those imposed or granted by AS 13.36.105 - 13.36.220. (b) Notwithstanding (a) of this section, an act of the settlor may not relieve a trustee from the duties, restrictions, and liabilities imposed on the trustee by AS 13.36.140, 13.36.145, or 13.36.150.
A beneficiary of a trust affected by AS 13.36.105 - 13.36.220 may, if the beneficiary has full legal capacity and acts on full information, by written instrument delivered to the trustee, relieve the trustee, as regards the beneficiary, from any or all of the duties, restrictions, and liabilities that would otherwise be imposed on the trustee by AS 13.36.105 - 13.36.220, except for the duties, restrictions, and liabilities imposed by AS 13.36.140 - 13.36.150. The beneficiary may release the trustee from liability to the beneficiary for past violations of AS 13.36.105 - 13.36.220.
A court of competent jurisdiction may, for cause shown and on notice to the beneficiaries, relieve a trustee from any or all of the duties and restrictions that would otherwise be placed on the trustee by AS 13.36.105 - 13.36.220 or wholly or partly excuse a trustee who has acted honestly and reasonably from liability for violations of AS 13.36.105 - 13.36.220.
If a trustee violates a provision of AS 13.36.105 - 13.36.220, the trustee may be removed as trustee under AS 13.36.076 and denied compensation in whole or in part, and a beneficiary, co-trustee, or successor trustee may treat the violation as a breach of trust.
(a) In AS 13.36.105 - 13.36.220, unless the context or subject matter otherwise requires, (1) affiliate means a person directly or indirectly controlling or controlled by another person or a person under direct or indirect common control with another person, including a person with whom a trustee has an express or implied agreement regarding the purchase of trust investments by each from the other, directly or indirectly, except a broker or stock exchange; (2) relative means a spouse, ancestor, descendant, brother, or sister; (3) trust means an express trust only; (4) trustee includes a trustee that is a corporation or a natural person and a successor or substitute trustee. (b) In AS 13.36.157 - 13.36.159, (1) appointed trust means an irrevocable trust that receives principal from an invaded trust under AS 13.36.157, including a new trust created by the settlor of the invaded trust or by the trustees, acting in that capacity, of the invaded trust; (2) authorized trustee means, with regard to an invaded trust, a trustee with the authority to pay trust principal to or for a current beneficiary; in this paragraph, trustee does not include a settlor or a beneficiary to whom income or principal must be paid, currently or in the future, or who is or will become eligible to receive a distribution of income or principal in the discretion of the trustee other than by the exercise of a power of appointment held in a nonfiduciary capacity; (3) current beneficiary means a person or, with regard to a class of persons, a person who is a member of the class, to whom a trustee may distribute principal when exercising a power under AS 13.36.157; (4) invade means pay directly to the beneficiary of a trust or apply to the benefit of a beneficiary; (5) invaded trust means an irrevocable inter vivos or testamentary trust the principal of which is appointed under AS 13.36.157; (6) pooled trust means a trust described in 42 U.S.C. 1396p(d)(4)(C) that meets the requirements for a pooled trust under the regulations of this state relating to the Medicaid treatment of trusts; (7) principal means the assets of a trust, including accrued and accumulated income, but excluding income that is currently required to be distributed; (8) special needs trust means a trust under 42 U.S.C. 1396p(d)(4)(A) that meets the requirements for a special needs trust under the regulations of this state relating to the Medicaid treatment of trusts; (9) third-party trust means a trust that is (A) established by a third party with the assets of the third party to provide for supplemental needs for a person eligible when the trust is created or at a future time for needs-based public assistance; and (B) exempt from the provisions of the regulations of this state relating to the Medicaid treatment of trusts; (10) unlimited discretion means the unlimited right to distribute principal if the right is not restricted by an ascertainable standard under 26 C.F.R. 25.2514-1.
AS 13.36.105 - 13.36.220 may be cited as the Alaska Trusts Act.
(a) Except as otherwise provided in (b) of this section and AS 13.36.273, a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set out in AS 13.36.230 - 13.36.290. (b) The prudent investor rule, a default rule, may be expanded, restricted, eliminated, or otherwise altered by the direction of the settlor to the provisions of a trust. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the provisions of the trust.
(a) A trustee shall invest and manage trust assets as a prudent investor would by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution. (b) A trustee's investment and management decisions respecting individual assets shall be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust. (c) Among circumstances that a trustee shall consider in investing and managing trust assets are those of the following that are relevant to the trust or its beneficiaries: (1) general economic conditions; (2) the possible effect of inflation or deflation; (3) the expected tax consequences of investment decisions or strategies; (4) the role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property; (5) the expected total return from income and the appreciation of capital; (6) other resources of the beneficiaries; (7) needs for liquidity, regularity of income, and preservation or appreciation of capital; and (8) an asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries. (d) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets. (e) A trustee may invest in any kind of property or type of investment consistent with the standards of AS 13.36.225 - 13.36.290. (f) A trustee who has special skills or expertise, or is named trustee in reliance on the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise.
A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.
Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust and with the requirements of AS 13.36.225 - 13.36.290.
A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries.
If a trust has two or more beneficiaries, the trustee shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries.
In investing and managing trust assets, a trustee may only incur costs that are appropriate and reasonable in relation to the assets, the purposes of the trust, and the skills of the trustee.
Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight.
(a) A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in (1) selecting an agent; (2) establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and (3) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation. (b) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation. (c) A trustee who complies with the requirements of (a) of this section is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated. (d) By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.
(a) With respect to a contract for life insurance acquired or retained for a trust on the life of a qualified person, a trustee does not have a duty to determine whether the contract was procured or effected in accordance with AS 21.42.020 unless the trust instrument provides otherwise or unless the trustee applied for or accepted ownership of a contract of life insurance and had knowledge that (1) when the contract of life insurance was issued, the benefits were not payable to a person specified in AS 21.42.020; or (2) the contract was purchased with resources or guarantees directly or indirectly provided by a person who, when the contract was entered into, did not have an insurable interest in the insured, and, when the contract was entered into, there was a verbal or written arrangement, agreement, or plan with a third party to transfer ownership of the policy or the policy benefits in a manner that would violate the law of this state. (b) With respect to a contract for life insurance acquired or retained for a trust on the life of a qualified person, if this subsection applies under (c) of this section, a trustee does not have a duty to (1) determine whether a contract of life insurance is a proper investment; (2) investigate the financial strength of the person issuing the life insurance policy; (3) determine whether to exercise a policy option available under the contract; (4) diversify the contract or the assets of the trust with respect to the contract; or (5) inquire about or investigate the health or financial condition of an insured. (c) Unless the trust instrument provides otherwise, (b) of this section applies to a trustee if (1) the trust instrument refers to this section and makes this section applicable to contracts for life insurance held by the trust; or (2) the trustee notifies the qualified beneficiaries or a person who may represent and bind the qualified beneficiaries under AS 13.06.120 that the trustee is electing to have this section apply to a contract for life insurance held by the trust. (d) The notice provided under (c)(2) of this section must include a copy or restatement of (b) of this section and shall be provided (1) by mailing a copy of the notice by certified, registered, or ordinary first-class mail addressed to the person being notified at the post office address given in the person's demand for notice, if any, or at the person's office or place of residence, if known; (2) by delivering a copy of the notice personally to the person being notified; or (3) if the address or identity of the person is not known and cannot be ascertained with reasonable diligence, by publishing, at least once a week for three consecutive weeks, a copy of the notice in a newspaper having general circulation in the judicial district where one of the trustees is located. (e) If, within 30 days after a person receives notice under (d)(1) or (2) of this section or 30 days after the last date of publication of the notice under (d)(3) of this section, a person delivers to the trustee a written objection to the application of (b) of this section, (b) of this section does not apply until the objection is withdrawn. (f) Under (a) and (b) of this section, the trustee is not liable to the beneficiaries of the trust or to another person for a loss sustained with respect to a life insurance contract to which (a) and (b) of this section apply. (g) Notwithstanding the other provisions of this section, unless the duties have been delegated to another person under AS 13.36.270, (a) and (b) of this section do not apply to a contract for life insurance purchased from an affiliate of a trustee or for which a trustee or an affiliate of the trustee receives a commission. In this subsection, affiliate means a person who controls, is controlled by, or is under common control with the trustee. (h) A trustee who performs fiduciary or advisory services related to a policy of life insurance to which (a)(1) or (2) of this section applies may not be compensated for performing the services to which (a)(1) or (2) of this section applies. (i) In this section, qualified person means a person who (1) is an insured or a proposed insured under a policy of life insurance or the spouse of that person; and (2) provides (A) the actual funds used to acquire or pay the premiums for the policy; or (B) assets the income or principal of which is used to acquire or pay the premiums for the policy.
The following terms or comparable language in the provisions of a trust, unless otherwise limited or modified, authorizes an investment or strategy permitted under AS 13.36.225 - 13.36.290: investments permissible by law for investment of trust funds, legal investments, authorized investments, using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital, prudent man rule, prudent trustee rule, prudent person rule, and prudent investor rule.
(a) AS 13.36.225 - 13.36.290 apply to trusts existing on and created after May 23, 1998. As applied to trusts existing on May 23, 1998, AS 13.36.225 - 13.36.290 govern only decisions or actions occurring after May 23, 1998. (b) AS 13.36.225 - 13.36.290 govern only decisions or actions of personal representatives under AS 13.16.350(a) or of conservators under AS 13.26.500 that occur on or after May 23, 1998.
AS 13.36.225 - 13.36.290 shall be applied and construed to carry out their general purpose to make uniform the law with respect to the subject of those sections among the states that enact them.
AS 13.36.225 - 13.36.290 may be cited as the Alaska Uniform Prudent Investor Act.
(a) Except as specified in (b) of this section, in the administration of a trust that is a private foundation, as defined in 26 U.S.C. 509 (Internal Revenue Code of 1954), charitable trust, as described in 26 U.S.C. 4947(a)(1) (Internal Revenue Code of 1954), or split-interest trust, as described in 26 U.S.C. 4947(a)(2) (Internal Revenue Code of 1954), the trust instrument of the trust is considered to contain provisions prohibiting the trustee from (1) engaging in an act of self-dealing, as defined in 26 U.S.C. 4941(d) (Internal Revenue Code of 1954), that would give rise to liability for the tax imposed by 26 U.S.C. 4941(a) (Internal Revenue Code of 1954); (2) retaining excess business holdings, as defined in 26 U.S.C. 4943(c) (Internal Revenue Code of 1954), that would give rise to liability for the tax imposed by 26 U.S.C. 4943(a) (Internal Revenue Code of 1954); (3) making an investment that would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of 26 U.S.C. 4944 (Internal Revenue Code of 1954), so as to give rise to liability for the tax imposed by 26 U.S.C. 4944(a) (Internal Revenue Code of 1954); and (4) making taxable expenditures, as defined in 26 U.S.C. 4945(d) (Internal Revenue Code of 1954), that would give rise to liability for the tax imposed by 26 U.S.C. 4945(a) (Internal Revenue Code of 1954). (b) The provisions of (a) of this section do not apply either to those split-interest trusts or to amounts of them that are not subject to the prohibitions applicable to private foundations by reason of the provisions of 26 U.S.C. 4947 (Internal Revenue Code of 1954). (c) The trust instrument of each trust specified in (a) of this section, except a split-interest trust, is considered to contain a provision requiring the trustee to distribute, for the purposes specified in the trust instrument, for each taxable year of the trust, amounts at least sufficient to avoid liability for the tax imposed by 26 U.S.C. 4942(a) (Internal Revenue Code of 1954). (d) Nothing in this section limits the power of a person who creates a trust after August 23, 1971, or the power of a person who has retained or has been granted the right to amend a trust created before August 23, 1971, to include a specific provision in the trust instrument or an amendment to it that provides that some or all of the provisions of (a) and (b) of this section do not apply to the trust. (e) In this section, references to provisions of the Internal Revenue Code of 1954 include future amendments to those provisions.
(a) Except as provided in AS 34.40.110(b), a trust that is covered by AS 13.36.035(c) or that is otherwise governed by the laws of this state, or a property transfer to a trust that is covered by AS 13.36.035(c) or that is otherwise governed by the laws of this state, is not void, voidable, liable to be set aside, defective in any fashion, or questionable as to the settlor's capacity, and the assets of the trust are not subject to the claim of a creditor of the settlor or a creditor of a beneficiary, on the grounds that the trust or transfer avoids or defeats a right, claim, or interest conferred by law on a person by reason of a personal or business relationship with the settlor or beneficiary or by way of a marital or similar right. (b) If a trust or a property transfer to a trust is voided or set aside under AS 34.40.110(b), then the trust or property transfer shall be voided or set aside only to the extent necessary to satisfy the settlor's debt to the creditor or other person at whose instance the trust or property transfer is voided or set aside and the costs and attorney fees allowed under the rules of court. (c) If a trust or a property transfer to a trust is voided or set aside under (a) of this section, and if the court is satisfied that the trustee has not acted in bad faith in accepting or administering the property that is the subject of the trust, (1) the trustee has a first and paramount lien against the property that is the subject of the trust in an amount equal to the entire cost, including attorney fees, properly incurred by the trustee in a defense of the action or proceedings to void or set aside the trust or the property transfer; (2) the trust or property transfer that is voided or set aside is subject to the proper fees, costs, preexisting rights, claims, and interest of the trustee and any predecessor trustee that have not acted in bad faith; and (3) the beneficiary, including the settlor, may retain a distribution made by exercising a trust power or discretion vested in the trustee of the trust, if the power or discretion was properly exercised before the commencement of the action or proceeding to void or set aside the trust or property transfer.
(a) If at least one qualified person serves as trustee of a trust whose state jurisdiction provision is valid, effective, and conclusive under AS 13.36.035(c), then the following persons also may serve as trustees even though they are not qualified persons: (1) individuals who do not reside in the state; (2) trust companies that have their principal place of business outside the state and that are not organized under AS 06.26; and (3) banks that have their principal place of business outside the state or that are not organized under AS 06.05. (b) Notwithstanding other provisions of law to the contrary, a trustee who is not a qualified person is not considered to be engaging in business in this state solely by reason of serving as trustee of a trust whose state jurisdiction provision is valid, effective, and conclusive under AS 13.36.035(c).
A provision in an inter vivos or testamentary trust purporting to penalize a beneficiary by charging the beneficiary's interest in the trust, or to penalize the beneficiary in another manner, for instituting a proceeding to challenge the acts of the trustee or other fiduciary of a trust, or for instituting other proceedings relating to the trust, is enforceable even if probable cause exists for instituting the proceedings.
The asset distribution provisions of AS 13.16.540 - 13.16.545, 13.16.560, and the provisions of AS 13.38 apply to the administration of a revocable trust following the death of the settlor of the trust, unless the terms of the trust indicate a different intention.
(a) Unless a trust is expressly made irrevocable, a trust executed on or after August 30, 2000 is revocable by the settlor. (b) Notwithstanding AS 13.36.035 - 13.36.050, this section applies only if the (1) settlor is domiciled in this state when the trust is created; (2) trust instrument is executed in this state; or (3) trust provides that the law of this state governs the trust.
(a) A trust that is revocable by the settlor may be modified or revoked in whole or in part by (1) substantial compliance with a method of modification or revocation provided in the trust instrument; or (2) a writing, other than a will, signed by the settlor and delivered to the trustee during the lifetime of the settlor, except that, if the trust instrument expressly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked under this paragraph. (b) Unless otherwise provided in the trust instrument, if a trust that is revocable by the settlor is created by or funded by more than one settlor, (1) the trust may be modified or revoked as provided in AS 34.77.100 to the extent the trust consists of community property under AS 34.77 (Alaska Community Property Act); (2) each settlor may modify or revoke the trust as to the portion of the trust property contributed by that settlor that is not community property under AS 34.77. (c) A revocable trust may not be modified or revoked by an attorney-in-fact under a power of attorney unless the modification or revocation is expressly permitted by the trust instrument.
(a) On petition by a trustee, settlor, or beneficiary, a court may modify the administrative or dispositive terms of an irrevocable trust or terminate an irrevocable trust if, because of circumstances not anticipated by the settlor, modification or termination would substantially further the settlor's purposes in creating the trust. (b) Upon termination of a trust under this section, the trust property shall be distributed in accordance with the settlor's probable intention.
(a) On petition by a trustee, settlor, or beneficiary, a court may reform the terms of an irrevocable trust, even if the trust instrument is not ambiguous, to conform to the settlor's intention if the failure to conform was due to a mistake of fact or law, whether in expression in the trust or inducement to create the trust, and if the settlor's intent can be established by clear and convincing evidence. (b) A court may consider evidence, including direct evidence contradicting the plain meaning of the text, when determining the settlor's intent or for any other purpose under this section.
(a) The terms of a trust shall be construed to achieve the settlor's tax objectives. (b) On petition by a trustee, settlor, or beneficiary, a court may modify the terms of an irrevocable trust to achieve the settlor's tax objectives in a manner that does not violate the settlor's probable intent. The court may order that the modification operate retroactively.
(a) Except as otherwise provided by this section, on petition by a trustee, settlor, or beneficiary, a court may modify or terminate an irrevocable trust if all of the beneficiaries consent and if continuation of the trust on the existing terms of the trust is not necessary to further a material purpose of the trust. However, the court, in its discretion, may determine that the reason for modifying or terminating the trust under the circumstances outweighs the interest in accomplishing the material purposes of the trust. The inclusion of a restriction on the voluntary or involuntary transfer of trust interests under AS 34.40.110 may constitute a material purpose of the trust under this subsection, but is not presumed to constitute a material purpose of the trust under this subsection. (b) Unless otherwise provided in the trust instrument, an irrevocable trust may not be modified or terminated under this section while a settlor is also a discretionary beneficiary of the trust. (c) If a beneficiary other than a qualified beneficiary does not consent to a modification or termination of an irrevocable trust that is proposed by the trustee, settlor, or other beneficiaries, a court may approve the proposed modification or termination if the court determines (1) if all the beneficiaries had consented, the trust could have been modified or terminated under this section; and (2) the rights of a beneficiary who does not consent will be adequately protected or not significantly impaired. (d) [Repealed,  15 ch 7 SLA 2008.] 
(a) Notwithstanding the other provisions of AS 13.36.338 - 13.36.365, if the value of the property of an irrevocable trust is less than $50,000, the trustee may terminate the trust unless the trust instrument provides otherwise. (b) Notwithstanding the other provisions of AS 13.36.338 - 13.36.365 and the terms of the trust, on petition to the superior court by a trustee, settlor, or beneficiary, the court may modify or terminate an irrevocable noncharitable trust, or remove the trustee and appoint a different trustee, if the court determines that the value of the trust property is insufficient to justify the cost of administration. (c) Upon termination of a trust under this section, the trustee shall distribute the trust property in accordance with the settlor's probable intent.
(a) Whether or not the terms of the trust contain a spendthrift restriction, (1) during the lifetime of the settlor of a revocable trust, the property of the trust is subject to claims of the settlor's creditors; and (2) except as otherwise provided in (b) of this section, after the death of the settlor of a trust that was revocable at the settlor's death, and subject to the settlor's right to direct the source from which claims may be paid, the property of the trust is subject to claims to the extent the settlor's estate is not adequate to satisfy the claims. (b) With respect to claims in connection with the settlement after the death of the settlor of a trust that was revocable at the settlor's death, (1) a creditor's claim that would be allowed or barred against a decedent's estate under AS 13.16.450 - 13.16.525 shall be allowed or barred against the trustee of the trust, the trust property, and the creditors and beneficiaries of the trust; (2) if the personal representative of the decedent's estate follows the procedures provided by AS 13.16.450 - 13.16.525, then claims that are allowed or barred against the decedent's estate shall also be allowed or barred against the assets of the trust; (3) if the personal representative of the decedent's estate fails to follow the procedures stated by AS 13.16.450 - 13.16.525, the trustee of the trust may file a petition with the superior court for a determination of claims and follow the procedures established by AS 13.16.450 - 13.16.525, and claims against the trust and against the decedent's estate shall be allowed or barred under those procedures. (c) In (a)(2) and (b) of this section, claim means a claim (1) of a creditor of the settlor; (2) for the expenses of the administration of the settlor's estate; (3) for the expenses of the settlor's funeral; and (4) for the expenses of the disposal of the settlor's remains.
(a) A trust instrument may provide for the appointment of a trust protector. (b) A trust protector appointed under (a) of this section has the powers, delegations, and functions conferred on the protector by the trust instrument, which may include the power to (1) remove and appoint a trustee; (2) modify or amend the trust instrument to achieve favorable tax status or to respond to changes in 26 U.S.C. (Internal Revenue Code) or state law, or the rulings and regulations under those laws; (3) increase or decrease the interests of any beneficiary to the trust; and (4) modify the terms of a power of appointment granted by the trust. (c) A modification authorized under (b) of this section may not (1) grant a beneficial interest to an individual or a class of individuals unless the individual or class of individuals is specifically provided for under the trust instrument; (2) modify the beneficial interest of a governmental unit in a trust created under AS 47.07.020(f). (d) Subject to the terms of the trust instrument, a trust protector is not liable or accountable as a trustee or fiduciary because of an act or omission of the trust protector taken when performing the function of a trust protector under the trust instrument.
(a) A trust instrument may provide for the appointment of a person to act as an advisor to the trustee with regard to all or some of the matters relating to the property of the trust. (b) Unless the terms of the trust instrument provide otherwise, if an advisor is appointed under (a) of this section, the property and management of the trust and the exercise of all powers and discretionary acts exercisable by the trustee remain vested in the trustee as fully and effectively as if an advisor were not appointed, the trustee is not required to follow the advice of the advisor, and the advisor is not liable as or considered to be a trustee of the trust or a fiduciary when acting as an advisor to the trust. (c) Notwithstanding (b) of this section, if, by the terms of the trust instrument, a trustee is designated to follow the directions of an advisor who is not designated in the trust instrument as being a trustee, the trustee who, by the terms of the trust instrument, is required to follow the directions of the advisor is not liable, individually or as a fiduciary, to a beneficiary for a consequence of the trustee's compliance with the advisor's directions, regardless of the information available to the trustee, and the trustee does not have an obligation to review, inquire, investigate, or make recommendations or evaluations with respect to the exercise of a power of the trustee if the exercise of the power complies with the directions given to the trustee. An advisor under this subsection is liable to the beneficiaries as a fiduciary with respect to the exercise of the advisor's directions by a trustee as if the trustee were not in office, and the advisor has the exclusive obligation to account to the beneficiaries and to defend an action brought by the beneficiaries with respect to the exercise of the advisor's directions by the trustee.
In this chapter, (1) party in interest means, if the trust is (A) revocable and if the settlor is incapacitated, the settlor's legal representative under applicable law or the settlor's agent under a durable power of attorney; or (B) irrevocable, (i) each trustee serving at the time; (ii) each beneficiary entitled to receive a mandatory distribution of income or principal from a trust or, if a beneficiary entitled to receive a mandatory distribution of income or principal from a trust is not 19 years of age or is incapacitated, the beneficiary's legal representative under applicable law or the beneficiary's agent under a durable power of attorney; and (iii) each vested remainder beneficiary in existence at the time or, if a vested remainder beneficiary is not 19 years of age or is incapacitated, the vested remainder beneficiary's legal representative under applicable law or the vested remainder beneficiary's agent under a durable power of attorney; (2) qualified beneficiary means a beneficiary who (A) on the date the beneficiary's qualification is determined, is entitled or eligible to receive a distribution of trust income or principal; or (B) would be entitled to receive a distribution of trust income or principal if the event causing the trust's termination occurs; (3) qualified person means (A) an individual who, except for brief intervals, military service, attendance at an educational or training institution, or for absences for good cause shown, resides in this state, whose true and permanent home is in this state, who does not have a present intention of moving from this state, and who has the intention of returning to this state when away; (B) a trust company that is organized under AS 06.26 and that has its principal place of business in this state; or (C) a bank that is organized under AS 06.05, or a national banking association that is organized under 12 U.S.C. 21 - 216d, if the bank or national banking association possesses and exercises trust powers and has its principal place of business in this state; (4) settlor means a person who transfers property in trust and includes a person who furnishes the property transferred to a trust even if the trust is created by another person; (5) state jurisdiction provision means a provision that the laws of this state govern the validity, construction, and administration of a trust and that the trust is subject to the jurisdiction of this state.
(a) In allocating receipts and disbursements to or between principal and income and with respect to any matter within the scope of this chapter, a fiduciary (1) shall administer a trust or estate in accordance with the governing instrument, even if there is a different provision in this chapter; (2) may administer a trust or estate by the exercise of a discretionary power of administration regarding a matter within the scope of this chapter given to the fiduciary by the governing instrument, even if the exercise of the power produces a result different from a result required or permitted by this chapter; an inference that the fiduciary has improperly exercised the discretionary power does not arise from the fact that the fiduciary has made an allocation contrary to a provision of this chapter; (3) shall administer a trust or estate in accordance with this chapter if the governing instrument does not contain a different provision or does not give the fiduciary a discretionary power of administration regarding a matter within the scope of this chapter; and (4) shall add a receipt or charge a disbursement to principal to the extent that the governing instrument and this chapter do not provide a rule for allocating the receipt or disbursement to or between principal and income. (b) In exercising a discretionary power of administration regarding a matter within the scope of this chapter, whether granted by the governing instrument or this chapter, including AS 13.38.210 and 13.38.300 - 13.38.435, a fiduciary shall administer a trust or estate impartially based on what is fair and reasonable to all of the beneficiaries, except to the extent that the governing instrument clearly manifests an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with this chapter is presumed to be fair and reasonable to all of the beneficiaries.
(a) Subject to (c) and (f) of this section, a trustee may adjust between principal and income by allocating an amount of income to principal or an amount of principal to income to the extent the trustee considers appropriate if (1) the governing instrument describes what may or shall be distributed to a beneficiary by referring to the trust's income; (2) the trustee determines, after applying the rules in AS 13.38.200(a), that the trustee is unable to comply with AS 13.38.200(b); and (3) the trustee determines to follow an investment policy seeking a total return for the investments held by the trust, whether the return is to be derived from (A) appreciation of capital; (B) earnings and distributions from capital; or (C) both (A) and (B) of this paragraph. (b) In deciding whether and to what extent to exercise the power conferred by (a) of this section, a trustee may consider, among other things, (1) the size of the trust; (2) the nature and estimated duration of the trust; (3) the liquidity and distribution requirements of the trust; (4) the need for regular distributions and preservation and appreciation of capital; (5) the expected tax consequences of an adjustment; (6) the net amount allocated to income under the other sections of this chapter and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available; (7) the assets held in the trust; the extent to which the assets consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor or testator; (8) to the extent reasonably known to the trustee, the need of the beneficiaries for present and future distributions authorized or required by the governing instrument; (9) whether and to what extent the governing instrument gives the trustee the power to invade principal or accumulate income or prohibits the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income; (10) the intent of the settlor or testator; and (11) the actual and anticipated effect of economic conditions on principal and income and the effects of inflation and deflation. (c) A trustee may not make an adjustment under this section if (1) the adjustment would diminish the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which a federal estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment; the prohibition in this paragraph does not apply to a trust after the trustee determines that the marital deduction has not been claimed or has not been allowed; (2) the adjustment would reduce the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a federal gift tax exclusion; (3) the adjustment would change the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets; (4) the adjustment is from any amount that is permanently set aside for charitable purposes under the governing instrument and for which a federal estate or gift tax charitable deduction has been taken, unless both income and principal are permanently set aside for charitable purposes under the governing instrument; (5) possessing or exercising the power to make an adjustment would cause an individual to be treated as the owner of all or part of the trust for federal income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment; (6) possessing or exercising the power to make an adjustment would cause all or part of the trust assets to be subject to federal estate or gift tax with respect to an individual, and the assets would not be subject to federal estate or gift tax with respect to the individual if the trustee did not possess the power to make an adjustment; (7) the trustee is a beneficiary of the trust; or (8) the trust has been converted to a unitrust under AS 13.38.300 - 13.38.435. (d) If (c)(5), (6), or (7) of this section applies to a trustee and there is more than one trustee, a co-trustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is prohibited by the governing instrument. (e) A trustee may release the entire power conferred by (a) of this section, the power to adjust from income to principal, or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in (c)(1) - (6) of this section, or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in (c) of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual. (f) A governing instrument that limits the power of a trustee to make an adjustment between principal and income does not affect the application of this section unless it is clear from the governing instrument that it is intended to deny the trustee the power of adjustment conferred by (a) of this section.
(a) A court may not change a fiduciary's decision to exercise or not to exercise a discretionary power conferred by this chapter unless the court determines that the decision was an abuse of the fiduciary's discretion. (b) If a court determines that a fiduciary has abused the fiduciary's discretion regarding a discretionary power conferred by this chapter, the remedy is to restore the income and remainder beneficiaries to the positions they would have occupied if the fiduciary had not abused the fiduciary's discretion, according to the following rules: (1) to the extent that the abuse of discretion has not resulted in a distribution to a beneficiary or has resulted in a distribution that is too small, the court shall require the fiduciary to distribute from the trust an amount to the beneficiary that the court determines will restore the beneficiary, in whole or in part, to the beneficiary's appropriate position; (2) to the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court shall restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or by requiring that beneficiary or that beneficiary's estate to return some or all of the distribution to the trust, notwithstanding a spendthrift or similar provision; (3) if the abuse of discretion concerns the power to convert a trust into a unitrust, the court shall require the trustee either to convert into a unitrust or to reconvert from a unitrust; (4) to the extent that the court is unable, after applying (1) - (3) of this subsection, to restore the beneficiaries, the trust, or both to the positions they would have occupied if the fiduciary had not abused the fiduciary's discretion, the court may require the fiduciary to pay an appropriate amount from the fiduciary's own funds to one or more of the beneficiaries, the trust, or both.
Unless expressly prohibited by the governing instrument, a trustee may release the power to adjust under AS 13.38.210 and may convert a trust into a unitrust as described in AS 13.38.300 - 13.38.435 if (1) the trustee determines that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust; (2) the trustee gives written notice of the trustee's intention to release the power to adjust, of the trustee's intention to convert the trust into a unitrust, of the unitrust percentage selected, of the smoothing period selected, and of how the unitrust will operate, including what initial decisions the trustee intends to make under AS 13.38.340, to all the sui juris beneficiaries who (A) are currently eligible to receive income from the trust; (B) would be eligible, if a power of appointment were not exercised, to receive income from the trust if the interest of all of the beneficiaries eligible to receive income under (A) of this paragraph were to terminate immediately before the giving of the notice; and (C) would, if a power of appointment were not exercised, receive a distribution of principal if the trust were to terminate immediately before the giving of the notice; (3) there are at least one sui juris beneficiary under (2)(A) of this section and at least one sui juris beneficiary under (2)(B) or (C) of this section; and (4) a sui juris beneficiary does not object to the conversion to a unitrust in a writing delivered to the trustee within 60 days after the mailing of the notice under (2) of this section.
(a) A trustee may petition the court to approve the conversion to a unitrust if (1) a beneficiary timely objects to the conversion to a unitrust; (2) there is not a sui juris beneficiary who is currently eligible under AS 13.38.300(2)(A) or who would be eligible under AS 13.38.300(2)(B) or (C); or (3) the trustee is a beneficiary. (b) A beneficiary may request a trustee to convert to a unitrust. If the trustee does not convert, the beneficiary may petition the superior court to order the conversion. (c) The superior court shall approve the conversion or direct the requested conversion if the court concludes that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust.
In deciding whether to exercise the power conferred by AS 13.38.300, a trustee may consider, among other things, (1) the size of the trust; (2) the nature and estimated duration of the trust; (3) the liquidity and distribution requirements of the trust; (4) the need for regular distributions and preservation and appreciation of capital; (5) the expected tax consequences of the conversion; (6) the assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; and the extent to which an asset is used by a beneficiary; (7) to the extent reasonably known to the trustee, the need of the beneficiaries for present and future distributions authorized or required by the governing instrument; (8) whether and to what extent the governing instrument gives the trustee the power to invade principal or accumulate income or prohibits the trustee from invading principal or accumulating income and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income; (9) the actual and anticipated effect of economic conditions on principal and income and the effects of inflation and deflation.
(a) After a trust is converted to a unitrust, the trustee shall (1) follow an investment policy seeking a total return for the investments held by the trust, whether the return is to be derived from (A) appreciation of capital; (B) earnings and distributions from capital; or (C) both (A) and (B) of this paragraph; and (2) make regular distributions in accordance with the governing instrument construed in accordance with the provisions of this section. (b) After a trust has been converted to a unitrust, income in the governing instrument means an annual distribution equal to the amount produced by the application of a fixed unitrust percentage established under (d) of this section to the net fair market value, as determined annually, of the trust's assets, whether the assets would be considered income or principal under other provisions of this chapter, averaged over the lesser of (1) the preceding years in the smoothing period selected by the trustee; or (2) the period during which the trust has been in existence. (c) [Repealed,  46 ch 45 SLA 2013.]  (d) The unitrust percentage to be used in determining the amount to be distributed from a unitrust to a beneficiary must be a reasonable current return from the unitrust of at least three percent and not more than five percent, taking into account the intentions of the trustor of the unitrust as expressed in the governing instrument, the needs of the beneficiaries, general economic conditions, projected current earnings for the unitrust, projected appreciation for the unitrust, and the effect of projected inflation on the unitrust.
The trustee may, in the trustee's discretion, from time to time, determine (1) the effective date of a conversion to a unitrust; (2) the provisions for prorating a unitrust distribution for a short year in which a beneficiary's right to payments commences or ceases; (3) the frequency of unitrust distributions during the year; (4) the effect of other payments from or contributions to the trust on the trust's valuation; (5) whether to value the trust's assets annually or more frequently; (6) whether to use a smoothing period of three, four, or five years; (7) what valuation dates to use; (8) how frequently to value nonliquid assets and whether to estimate their value; (9) whether to omit trust property occupied or possessed by a beneficiary from the calculations; and (10) other matters necessary for the proper functioning of the unitrust.
(a) Expenses that would be deducted from income if the trust were not a unitrust may not be deducted from the unitrust distribution. (b) Unless otherwise provided by the governing instrument, a unitrust distribution shall be considered to have been paid from net income as net income would be determined if the trust were not a unitrust. To the extent net income is insufficient, the unitrust distribution shall be considered to have been paid from ordinary income that is allocable under federal income tax rules to net income as determined for a unitrust. To the extent that the ordinary income is insufficient, the unitrust distribution is considered to have been paid from net realized short-term capital gains. To the extent net income, ordinary income, and net realized short-term capital gains are insufficient, the unitrust distribution shall be considered to have been paid from net realized long-term capital gains. To the extent net income, ordinary income, and net realized short-term and long-term capital gains are insufficient, the unitrust distribution shall be paid from the principal of the trust.
The trustee or, if the trustee declines to petition the court, a beneficiary may petition the court to provide for a distribution of net income, as would be determined if the unitrust were not a unitrust, in excess of the unitrust distribution if the distribution is necessary to preserve a tax benefit.
A conversion to a unitrust does not affect a provision in the governing instrument directing or authorizing the trustee to distribute principal or authorizing a beneficiary to withdraw a portion or all of the principal.
(a) A trustee may not convert a trust into a unitrust if (1) payment of the unitrust distribution would change the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets; (2) the unitrust distribution would be made from an amount that is permanently set aside for charitable purposes under the governing instrument and for which a federal estate or gift tax deduction has been taken; (3) possessing or exercising the power to convert would cause an individual to be treated as the owner of all or part of the trust for federal income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to convert; (4) possessing or exercising the power to convert would cause all or part of the trust assets to be subject to federal estate or gift tax with respect to an individual, and the assets would not be subject to federal estate or gift tax with respect to the individual if the trustee did not possess the power to convert; (5) the conversion would result in the disallowance of a federal estate tax or gift tax marital deduction that would be allowed if the trustee did not have the power to convert; or (6) the trustee is a beneficiary of the trust. (b) Notwithstanding (a)(2) of this section, a trustee may elect to convert a trust to a unitrust if both the income and principal of the trust being converted to a unitrust are permanently set aside for charitable purposes and if the provisions of AS 13.38.440 - 13.38.490 are followed.
(a) If AS 13.38.380(a)(3), (4), or (6) applies to a trustee and there is more than one trustee, a co-trustee to whom the provision does not apply may convert the trust, unless the exercise of the power by the remaining trustee is prohibited by the governing instrument. (b) If AS 13.38.380(a)(3), (4), or (6) applies to all the trustees, the trustees may petition the court to direct a conversion. In the alternative, the trustees may appoint an independent person who shall be granted the authority, while acting in a fiduciary capacity, to make decisions in place of the trustees relating to a conversion, reconversion, and the exercise of discretionary powers under AS 13.38.340.
A trustee may reconvert a trust that has been converted into a unitrust under AS 13.38.300 by following the same procedures provided in AS 13.38.300 - 13.38.435 for converting a trust into a unitrust. If a unitrust is reconverted under this section, the trustee's power to adjust under AS 13.38.210 applies to the trustee after the reconversion.
(a) A trustee may release the power conferred by AS 13.38.300 to convert to a unitrust if the trustee (1) is uncertain about whether possessing or exercising the power will cause a result described in AS 13.38.380(a)(3), (4), or (5); or (2) determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in AS 13.38.380. (b) The release of a power under (a) of this section may be permanent or for a specified period, including a period measured by the life of an individual.
(a) This section applies to a trust that, by its governing instrument, requires the distribution, at least annually, of a unitrust amount. (b) The trustee of an express total return unitrust may determine the unitrust amount by reference to the net fair market value of the unitrust's assets in one or more years. (c) Distribution of a unitrust amount is considered a distribution of all of the income of an express total return unitrust and is considered to be an income interest. (d) Distribution of a unitrust amount is considered to be a reasonable apportionment of the total return of an express total return unitrust. (e) An express total return unitrust that provides for a distribution based on a unitrust percentage in excess of five percent of the net fair market value of the unitrust assets a year is considered a distribution of all of the income of the unitrust and a distribution of principal of the unitrust to the extent that the distribution exceeds five percent a year. (f) The governing instrument of an express total return unitrust may grant discretion to the trustee to adopt a consistent practice of treating capital gains as part of the unitrust amount to the extent that the unitrust amount exceeds the income determined as if the trust were not an express total return unitrust, or the governing instrument may specify the ordering of classes of income. (g) Unless the terms of the express total return unitrust specifically provide otherwise, a unitrust amount is considered a distribution made from the following sources, which are listed in order of priority: (1) net income determined as if the trust were not a unitrust; (2) ordinary income not allocable to net income; (3) net realized short-term capital gains; (4) net realized long-term capital gains; and (5) the principal of the trust estate. (h) The governing instrument of an express total return unitrust may provide that the trustee may exclude assets used by the unitrust's beneficiary, including a residence property or tangible personal property, from the net fair market value of the unitrust's assets for the purposes of computing the unitrust amount. These assets may be considered equivalent to income or to the unitrust amount. (i) In this section, (1) express total return unitrust means a trust that, by its governing instrument, requires the distribution, at least annually, of a unitrust amount; (2) unitrust amount means an amount equal to a fixed percentage of not less than three nor more than five percent each year of the net fair market value of the annual value of the trust's assets distributed from an express total return unitrust to a beneficiary.
Unless prohibited by the unitrust's governing instrument or specifically addressed by AS 13.38.350 or 13.38.420, the trustee of a unitrust may treat gains from the sale of capital assets of the unitrust as part of a distribution of principal to a beneficiary, and, if the trustee treats those gains as part of a distribution of principal to a beneficiary, the trustee shall treat those gains consistently on the unitrust's books, records, and tax returns as part of a distribution to a beneficiary.
In AS 13.38.300 - 13.38.435, (1) smoothing period means the period of years over which the fair market value of the assets of a unitrust are averaged; (2) unitrust percentage means the unitrust percentage established under AS 13.38.330(d).
The trustee of a trust held exclusively for charitable purposes may elect to be governed by AS 13.38.440 - 13.38.490 unless the governing instrument expressly provides that the election provided by AS 13.38.440 - 13.38.490 is not available.
To make an election under AS 13.38.440 - 13.38.490, the trustee shall adopt and follow an investment policy seeking a total return for the investments held by the trust, whether the return is to be derived from appreciation of capital or earnings and distributions with respect to capital or both. The policy constituting the election must be in writing, must be maintained as part of the permanent records of the trust, and must recite that it constitutes an election to be governed by AS 13.38.440 - 13.38.490.
(a) After a trustee has elected under AS 13.38.440 for the trust to be governed by AS 13.38.440 - 13.38.490, the trustee shall, in a writing maintained as part of the permanent records of the trust, select the percentage of the value of the trust that will be considered income and determine that it is consistent with the long-term preservation of the real value of the principal of the trust, but the percentage may not be less than two percent or more than seven percent each year of the principal value of the trust. The trustee may elect to change a percentage whenever the trustee determines that the new percentage is necessary and prudent. (b) For a charitable trust required by 26 U.S.C. 4942 (Internal Revenue Code) to distribute a higher amount than the percentage selected under (a) of this section, the amount required by 26 U.S.C. 4942 (Internal Revenue Code) controls over the percentage selected.
The trustee may revoke an election to be governed by AS 13.38.440 - 13.38.490 if the revocation is made as part of an alternative investment policy seeking the long-term preservation of the real value of the principal of the trust. The revocation and alternative investment policy must be in writing and maintained as part of the permanent records of the trust.
For the purposes of applying AS 13.38.440 - 13.38.490, the value of the trust is the fair market value of the cash and other assets held by the trustee with respect to the trust, whether these assets would be considered income or principal under the other provisions of this chapter, determined at least annually. In the discretion of the trustee, the value of the trust may be averaged over a period of three or more preceding years, except that, if the trust has been in existence less than three years and the trustee decides to average the value, the average shall be determined over the period during which the trust has been in existence.
In AS 13.38.440 - 13.38.490, except as otherwise expressly stated in AS 13.38.440 - 13.38.490, (1) income means the percentage of the value of the trust computed under AS 13.38.440 - 13.38.490; (2) principal means all assets other than those identified as income in (1) of this section that are held by the trustee with respect to the trust.
After a decedent dies in the case of an estate, or after an income interest in a trust ends, a fiduciary (1) of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under (5) of this section and the provisions applicable to trustees in AS 13.38.550 - 13.38.860; the fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property; (2) shall distribute to a beneficiary or trust that receives a pecuniary amount a share of net income equal to the beneficiary's or trust's fractional interest in undistributed principal assets as determined under AS 13.38.510(a), (b)(1), (b)(3), and (c) - (e); the share accrues from the date of death of a decedent, in the case of an estate, or the date of death of a settlor or specified event, in the case of a revocable or irrevocable trust; (3) shall determine the remaining net income of a decedent's estate or a terminating income interest under the provisions applicable to trustees in AS 13.38.550 - 13.38.860 and by (A) including in net income all income from property used to discharge liabilities; and (B) paying from principal the debts, the funeral expenses, the costs of disposition of remains, the family allowance under AS 13.12.404, fees of personal representatives and their attorneys and accountants, and the taxes, related interest, and penalties described in AS 13.38.810(a)(7) that are apportioned to the estate or terminating income interest by the governing instrument or applicable law; (4) shall distribute the net income remaining after distributions required by (2) of this section in the manner described in AS 13.38.510 to all other beneficiaries; (5) may not reduce principal or income receipts from property described in (1) of this section because of a payment described in AS 13.38.800 or 13.38.810 to the extent that the governing instrument or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party; the net income and principal receipts from the property are determined by (A) including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event; and (B) making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.
(a) Each beneficiary described in AS 13.38.500(4) is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date. (b) In determining a beneficiary's share of net income, the following rules apply: (1) the beneficiary is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold or applied to meet principal obligations; (2) the beneficiary's fractional interest in the undistributed principal assets shall be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts; (3) the beneficiary's fractional interest in the undistributed principal assets shall be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation. (c) If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income. (d) To the extent that the fiduciary considers it appropriate, if this section applies to the income from an asset, the fiduciary may apply the rules in this section to net gain or loss from the disposition of a principal asset realized after the date of death or terminating event or an earlier distribution date. (e) For the purposes of this section, the distribution date may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.
(a) An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins (1) on the date specified in the governing instrument; or (2) if a date is not specified, on the date an asset becomes subject to a trust or successive income interest. (b) An asset becomes subject to a trust on the date (1) it is transferred to the trust, in the case of an asset that is transferred to a trust during the transferor's life; (2) of a testator's death, in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator's estate; or (3) of an individual's death, in the case of an asset that is transferred to a fiduciary by a third party because of the individual's death. (c) An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under (d) of this section, even if there is an intervening period of administration to wind up the preceding income interest. (d) An income interest ends on (1) the day before an income beneficiary dies or another terminating event occurs; or (2) the last day of a period during which there is not a beneficiary to whom a trustee may distribute income.
(a) Unless AS 13.38.500(1) applies, a trustee shall allocate an income receipt or disbursement to principal if its due date occurs before (1) a decedent dies, in the case of an estate; or (2) an income interest begins, in the case of a trust or successive income interest. (b) A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and its due date is periodic. An income receipt or disbursement shall be treated as accruing from day to day if its due date is not periodic or it does not have a due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins shall be allocated to principal, and the balance shall be allocated to income. (c) An item of income or an obligation is due on the date the payor is required to make a payment. If a payment date is not stated, there is not a due date for the purposes of this chapter. Distributions to shareholders or other owners from an entity to which AS 13.38.600 applies are considered to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if a date is not fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.
(a) When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the governing instrument unless the beneficiary has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends. In the case of the beneficiary who has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends, the undistributed income from the portion of the trust that may be revoked shall be added to principal. (b) When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the trust's assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor or testator relating to income, gift, estate, or other tax requirements. (c) In this section, undistributed income means net income received before the date on which an income interest ends, but does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the governing instrument.
(a) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity, including reinvested cash dividends. (b) A trustee shall allocate the following receipts from an entity to principal: (1) property other than money excluding reinvested cash dividends; (2) money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity; (3) money received in total or partial liquidation of the entity; (4) money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a short-term or long-term capital gain dividend for federal income tax purposes. (c) Money is received in partial liquidation (1) to the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or (2) if the total amount of money and property received in a distribution or series of related distributions is greater than 20 percent of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt. (d) Money is not received in partial liquidation, and it may not be taken into account under (c)(2) of this section, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money. (e) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors. (f) In this section, entity means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or another organization in which a trustee has an interest, but does not include (1) a trust or estate to which AS 13.38.610 applies; (2) a business or activity to which AS 13.38.620 applies; (3) a payment to which AS 13.38.690 applies; or (4) an asset-backed security to which AS 13.38.750 applies.
(a) A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest. (b) A trustee shall allocate to principal an amount received as a distribution of principal from a trust or estate in which the trust has an interest other than a purchased interest. (c) If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in a trust that is an investment entity to a trustee, AS 13.38.600 or 13.38.750 applies to a receipt from the trust.
(a) If a trustee that conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or other activity instead of accounting for it as part of the trust's general accounting records, the trustee may maintain separate accounting records for the transactions of the business or other activity, whether or not the assets of the business or other activity are segregated from other trust assets. (b) A trustee who accounts separately for a business or other activity may determine the extent to which (1) its net cash receipts are retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity; and (2) the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. (c) If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust's general accounting records to the extent the trustee determines that the amount received is not required any longer in the conduct of the business. (d) Activities for which a trustee may maintain separate accounting records include (1) retail, manufacturing, service, and other traditional business activities; (2) farming; (3) raising and selling livestock and other animals; (4) management of rental properties; (5) extraction of minerals and other natural resources; (6) timber operations; and (7) activities to which AS 13.38.740 applies.
A trustee shall allocate to principal any of the following: (1) to the extent not allocated to income under this chapter, assets received from (A) a transferor during the transferor's lifetime; (B) a decedent's estate; (C) a trust with a terminating income interest; or (D) a payor under a contract naming the trust or its trustee as beneficiary; (2) money or other property received from a principal asset's sale, exchange, liquidation, or change in form, including realized profit subject to AS 13.38.600 - 13.38.750; (3) amounts recovered from third parties to reimburse the trust because of disbursements described in AS 13.38.810(a)(8) or for other reasons, to the extent not based on the loss of income, except that a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income; (4) net income received in an accounting period during which there is not a beneficiary to whom a trustee may or must distribute income; (5) other receipts as provided in AS 13.38.680 - 13.38.750.
(a) To the extent that a trustee accounts for receipts from rental property under this section, the trustee shall allocate an amount received as rent of real or personal property to income, including an amount received for cancellation or renewal of a lease. (b) An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, (1) shall be added to principal; (2) shall be held subject to the terms of the lease; and (3) is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount.
(a) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, shall be allocated to income without any provision for amortization of premium. (b) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation if the purchase price or value of the obligation when it is acquired is less than its value at maturity. If the obligation matures within one year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust shall be allocated to income. (c) This section does not apply to an obligation to which AS 13.38.690, 13.38.700, 13.38.710, 13.38.720, 13.38.730, 13.38.740, or 13.38.750 applies.
(a) Except as otherwise provided in (b) or (c) of this section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. If the premiums on the policy or contract are paid from income, the trustee shall allocate dividends on the policy or contract to income. If the premiums on the policy or contract are paid from principal, the trustee shall allocate dividends on the policy or contract to principal. (b) Except as provided in (c) of this section, a trustee shall allocate to income proceeds of a contract that insures the trustee against (1) loss of occupancy or other use by an income beneficiary; (2) loss of income; or (3) subject to AS 13.38.620, loss of profits from a business. (c) This section does not apply to a contract to which AS 13.38.690 applies.
Notwithstanding the other provisions of this chapter, if a charitable remainder unitrust, as defined in 26 U.S.C. 664 (Internal Revenue Code), owns an obligation described in (2) of this section, the following rules apply, unless varied by the governing instrument: (1) an obligation for the payment of money is principal at its inventory value except as provided in (2) of this section; the trustee may not make a provision for amortization of a premium or for accumulation for discount; (2) except to the extent otherwise provided in the governing instrument, an increase in the value of the following above inventory value is distributable as income: (A) a zero coupon bond; (B) an annuity contract before annuitization; (C) a life insurance contract before the death of the insured; (D) an interest in a common trust fund; in this subparagraph, common trust fund has the meaning given in 26 U.S.C. 584 (Internal Revenue Code); (E) an interest in a limited liability company, limited liability partnership, or limited partnership; and (F) another obligation for the payment of money if the money is payable at a future time under a fixed, variable, or discretionary schedule of appreciation and if the payment exceeds the price at which the obligation was issued; (3) the increase in value of the obligations described in (2) of this section is distributable to the beneficiary who was the income beneficiary at the time of the increase; the increase is distributable from the first cash available from the principal or, if cash is not available from the principal, when cash is first available from the principal due to a sale, a redemption, or another disposition; when an unrealized increase is distributed as income from principal, the principal shall be reimbursed when the increase is realized; (4) the increase in value of an obligation described in (2) of this section is not available for distribution unless the trustee receives cash on account of the obligation; (5) notwithstanding a provision in this section to the contrary, a distribution from a partnership or limited liability company attributable to the cash flow or income derived from operations regularly carried on by the partnership or limited liability company is income, except to the extent otherwise provided in the governing instrument.
If a trustee determines that an allocation between principal and income required by AS 13.38.690, 13.38.700, 13.38.710, 13.38.720, or 13.38.750 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in AS 13.38.210(c) applies to the allocation. This power may be exercised by a co-trustee in the circumstances described in AS 13.38.210(d) and may be released for the reasons and in the manner described in AS 13.38.210(e). An allocation is presumed to be insubstantial if (1) the amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than five percent; or (2) the value of the asset producing the receipt for which the allocation would be made is less than five percent of the total value of the trust's assets at the beginning of the accounting period.
(a) A trustee shall allocate (1) to income that portion of a payment that equals the greater of the following: (A) the portion that the payor characterizes as interest, a dividend, a remittance in place of interest, or a remittance in place of a dividend; or (B) the portion that is characterized as imputed interest for federal income tax purposes; (2) to principal that portion of a payment that remains after the allocation is made under (1) of this subsection. (b) If no part of a payment under a contract calling for equal installments over a fixed period of time is allocable to income under the provisions of (a) of this section, the difference between the trust's acquisition value of the contract and the total expected return is considered to be interest. The trustee shall allocate to income the portion of each payment equivalent to interest on the then unpaid principal balance at the rate specified in the contract or at a rate necessary to amortize the difference between the expected return and the acquisition value, where that rate is readily ascertainable by the trustee. (c) If no portion of a payment from a separate fund held exclusively for the benefit of the trust is allocable to income under (a) or (b) of this section, but the internal net income of the fund determined as if the fund were a separate trust subject to AS 13.38.200 - 13.38.410, 13.38.500 - 13.38.690, or 13.38.710 - 13.38.860 is readily ascertainable by the trustee, the internal net income of the fund is considered to be the income earned by the fund, and the portion of the payment equal to the then undistributed net income of the fund realized since the trust acquired its interest in the fund is considered to be a distribution of that internal net income of the fund and shall be allocated to the trust income account. The balance of the payment described in this subsection shall be allocated to principal. The power to adjust under AS 13.38.210, the power to convert to a unitrust under AS 13.38.300, and the provisions of AS 13.38.420 apply to retirement benefits covered by this subsection that are payable to a trust. Those powers and provisions may be exercised by the payee trustee or in the governing instrument for the retirement benefits separately and independently from the exercise by the payee trustee or in the governing instrument of those powers and provisions for the trust, as if the retirement benefits and the trust were separate trusts subject to this chapter. (d) A trustee shall allocate 10 percent of the part of the payment that is required to be made during the accounting period to income and the balance to principal if there is no part of the payment that is allocable to income under (a) - (c) of this section and all or part of the payment is required to be made. The trustee shall allocate the entire payment to principal if no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled. In this subsection, a payment is not required to be made to the extent that it is made because the trustee exercises a right of withdrawal. (e) If, to obtain a federal estate or gift tax marital deduction for a trust, the trustee must allocate more of a payment to income than provided for by this section, the trustee shall allocate to income the additional amount necessary to obtain the marital deduction. (f) This section does not apply to payments to which AS 13.38.700 applies. (g) In this section, payment means a payment that a trustee may receive over a fixed period of time or during the life of one or more individuals because of services rendered or property transferred to the payor in exchange for future payments, and includes (1) a payment made in money or property from the payor's general assets or from a separate fund created by the payor or another person; (2) a payment on or from (A) an installment contract or note; (B) a private or commercial annuity; (C) a deferred compensation agreement; (D) an employee death benefit; (E) an individual retirement account; or (F) a pension plan, profit-sharing plan, stock plan, bonus plan, or stock-ownership plan.
(a) A trustee shall allocate 10 percent of the receipts from a liquidating asset to income and the balance to principal. (b) In this section, liquidating asset (1) means (A) an asset the value of which will diminish or terminate because the asset is expected to produce receipts for a period of limited duration; or (B) a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance; (2) does not include (A) an obligation subject to AS 13.38.670; (B) a payment subject to AS 13.38.690; (C) resources subject to AS 13.38.710; (D) timber subject to AS 13.38.720; (E) an activity subject to AS 13.38.740; (F) an asset subject to AS 13.38.750; or (G) an asset for which the trustee establishes a reserve for depreciation under AS 13.38.830.
(a) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources under this section, the trustee shall allocate them as follows: (1) if received as nominal delay rent or nominal annual rent on a lease, a receipt shall be allocated to income; (2) if received from a production payment, a receipt shall be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent; the balance shall be allocated to principal; (3) if an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, 90 percent shall be allocated to principal, and the balance shall be allocated to income; (4) if an amount is received from a working interest or any other interest not provided for in (1) - (3) of this subsection, 90 percent of the net amount received shall be allocated to principal, and the balance shall be allocated to income. (b) An amount received on account of an interest in renewable water shall be allocated to income. An amount received on account of an interest in nonrenewable water shall be allocated as follows: (1) 90 percent of the amount shall be allocated to principal; and (2) the balance shall be allocated to income. (c) This chapter applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.
(a) To the extent that a trustee accounts for receipts from the sale of timber and related products under this section, the trustee shall allocate the net receipts (1) to income, to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest; (2) to principal, to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber, or the net receipts are from the sale of standing timber; (3) between income and principal, by determining the amount of timber removed from the land under the lease or contract and applying the rules in (1) and (2) of this subsection if the net receipts are from the lease of timberland or a contract to cut timber from land owned by a trust; (4) to principal to the extent that advance payments, bonuses, and other payments are not allocated under (1) - (3) of this subsection. (b) In determining net receipts to be allocated under (a) of this section, a trustee shall deduct and transfer to principal a reasonable amount for depletion. (c) This chapter applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.
(a) If a federal estate or gift tax marital deduction is allowed for all or part of a trust whose income is required to be paid to the settlor's or testator's spouse and whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under AS 13.38.210 and that the trustee distributes to the spouse from principal under the governing instrument are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by AS 13.38.210(a). The trustee may decide which action or combination of actions to take. The income interest for a marital deduction trust described in this subsection shall be paid at least annually. (b) In cases not governed by (a) of this section, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period. (c) Unless otherwise provided by the trust instrument, a power or authority granted to a trustee, except for the authority to refrain from electing qualified terminal interest property treatment under 26 U.S.C. 2056 or 2523 (Internal Revenue Code), does not prevent a qualifying trust from being eligible for the marital deduction. All powers granted to a trustee shall be construed consistently with this subsection. In this subsection, qualifying trust means a trust (1) that is designated in the trust instrument as a trust eligible for the federal estate or gift tax marital deduction; or (2) if it can be inferred from the trust instrument that the grantor intended the trust to be eligible for the federal estate or gift tax marital deduction.
(a) To the extent that a trustee does not account under AS 13.38.620 for transactions in derivatives, the trustee shall allocate receipts from and disbursements made in connection with those transactions to principal. (b) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option shall be allocated to principal. An amount paid to acquire the option shall be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor or testator of the trust for services rendered, shall be allocated to principal. (c) In this section, derivative means a contract or financial instrument or a combination of contracts and financial instruments that gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or another market indicator for an asset or a group of assets.
(a) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate the portion of the payment that the payor identifies as being from interest or other current return to income, and the trustee shall allocate the balance of the payment to principal. (b) If a trust receives one or more payments in exchange for the trust's entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust's interest in the security over more than one accounting period, the trustee shall allocate 10 percent of the payment to income and the balance to principal. (c) In this section, asset-backed security (1) means an asset whose value is based on the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security; (2) includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return; (3) does not include an asset to which AS 13.38.600 or 13.38.690 applies.
A trustee shall make the following disbursements from income: (1) interest, except interest on taxes described in AS 13.38.810(a)(7); (2) ordinary repairs; (3) real estate and other regularly recurring taxes assessed against principal; (4) recurring premiums on fire or other insurance covering the loss of a principal asset or the loss of income from or use of the asset.
(a) A trustee shall make the following disbursements from principal: (1) extraordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income; (2) extraordinary repairs; (3) compensation for legal services to the trustee; (4) expenses in connection with accountings and judicial or other proceedings, including proceedings to construe, modify, or reform the trust or to protect the trust or its property; (5) payments on the principal of a trust debt; (6) premiums paid on a policy of insurance not described in AS 13.38.800(4) if the trust is the owner and beneficiary; (7) estate, inheritance, and other transfer taxes, including interest and penalties, apportioned to the trust; (8) disbursements related to environmental matters, including (A) reclamation; (B) assessing environmental conditions; (C) remedying and removing environmental contamination; (D) monitoring remedial activities and the release of substances; (E) preventing future releases of substances; (F) collecting amounts from persons liable or potentially liable for the costs of those activities; (G) penalties imposed under environmental statutes or regulations and other payments made to comply with those statutes or regulations; (H) statutory or common law claims by third parties; (I) defending claims based on environmental matters. (b) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.
Subject to AS 13.38.800 and 13.38.810, a trustee may, in the trustee's discretion, allocate to income or principal or partly to each ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including the compensation of the trustee and of a person providing investment advisory, custodial, or income tax return preparation services to the trustee.
(a) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation. However, a trustee may not transfer any amount for depreciation (1) of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary; (2) during the administration of a decedent's estate; or (3) under this section if the trustee is accounting under AS 13.38.620 for the business or activity in which the asset is used. (b) An amount transferred to principal is not required to be held as a separate fund. (c) In this section, depreciation means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.
(a) A trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future disbursements if the trustee makes or expects to make a disbursement from principal that is allocable to income under AS 13.38.800 or 13.38.820 and that is paid from principal because it is unusually large, or is made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions. (b) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in (a) of this section. (c) This section does not apply to the extent the trustee has been or expects to be reimbursed by a third party.
(a) A tax required to be paid by a trustee based on receipts allocated to income shall be paid from income. (b) A tax required to be paid by a trustee based on receipts allocated to principal shall be paid from principal, even if the tax is called an income tax by the taxing authority. (c) A tax required to be paid by a trustee on the trust's share of an entity's taxable income shall be paid proportionately from (1) income, to the extent that receipts from the entity are allocated to income; and (2) principal, to the extent that (A) receipts from the entity are allocated to principal; and (B) the trust's share of the entity's taxable income exceeds the total receipts described in (1) of this subsection and (A) of this paragraph. (d) For the purposes of this section, receipts allocated to principal or income shall be reduced by the amount distributed to a beneficiary from principal or income for which the trust receives a deduction in calculating the tax.
A trustee may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries that arise from (1) an election or decision that the trustee makes regarding tax matters; (2) an income tax or any other tax that is imposed on the trustee or a beneficiary as a result of a transaction involving the trust or distribution from the trust; or (3) the ownership by a trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the trust or a beneficiary.
This chapter does not apply to the trust established under the Alaska Mental Health Enabling Act of 1956, P.L. 84-830, 70 Stat. 709.
In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
In this chapter, unless the context clearly indicates otherwise, (1) accounting period means a calendar year, unless another 12-month period is selected by a fiduciary, and includes a portion of a calendar year or other 12-month period that begins when an income interest begins or ends when an income interest ends; (2) beneficiary includes, in the case of (A) a decedent's estate, an heir, legatee, or devisee; and (B) a trust, an income beneficiary and a remainder beneficiary; (3) fiduciary means a personal representative or a trustee; (4) income means money or property that a fiduciary receives as current return from a principal asset, and includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in AS 13.38.600 - 13.38.750; (5) income beneficiary means a person to whom net income of a trust is or may be payable; (6) income interest means the right of an income beneficiary to receive all or part of net income, whether the governing instrument requires it to be distributed or authorizes it to be distributed in the trustee's discretion; (7) mandatory income interest means the right of an income beneficiary to receive net income that the governing instrument requires the fiduciary to distribute; (8) net income means the total receipts allocated to income during an accounting period, minus disbursements made from income during the period, and plus or minus transfers under this chapter to or from income during the period; (9) person means an individual, a corporation, a business trust, an estate, a trust, a partnership, a limited liability company, an association, a joint venture, a government, a governmental subdivision, an agency or instrumentality, a public corporation, or another legal or commercial entity; (10) principal means property held in trust for distribution to a remainder beneficiary when the trust terminates, or property held in trust in perpetuity; (11) remainder beneficiary means a person entitled to receive principal when an income interest ends; (12) sui juris beneficiary includes (A) a court-appointed guardian of an incapacitated beneficiary; (B) an agent for an incompetent beneficiary; and (C) a court-appointed guardian of a minor beneficiary's estate; (13) trust includes a revocable trust, an irrevocable trust, and a legal life estate arrangement; (14) trustee includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court; (15) unitrust means a trust from which a fixed percentage of the net fair market value of the trust's assets, valued annually, is paid not less often than annually to a beneficiary.
This chapter may be cited as the Alaska Principal and Income Act.
Except as provided by AS 13.06.068, this chapter applies to the disposition at death of the following property acquired by a married person: (1) all personal property, wherever situated, (A) that was acquired as or became, and remained, community property under the laws of another jurisdiction; or (B) all or the proportionate part of which was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or (C) traceable to that community property; (2) all or the proportionate part of any real property situated in this state that was acquired with the rents, issues, or income of, the proceeds from, or in exchange for, property acquired as or that became, and remained, community property under the laws of another jurisdiction, or property traceable to that community property.
Subject to AS 13.06.068, in determining whether this chapter applies to specific property, the following rebuttable presumptions apply: (1) property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as or to have become, and remained, property to which this chapter applies; and (2) real property situated in this state and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form that created rights of survivorship, are presumed not to be property to which this chapter applies.
Upon the death of a married person, one-half of the property to which this chapter applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state. The other half of the property to which this chapter applies is the property of the decedent and is subject to testamentary disposition or distribution under the laws of succession of this state. With respect to property to which this chapter applies, the one-half of the property that is the property of the decedent is not subject to the surviving spouse's right to elect against the will.
If the title to any property to which this chapter applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the court. Neither the personal representative nor the court in which the decedent's estate is being administered has a duty to discover or attempt to discover whether the property held by the decedent is property to which this chapter applies, unless a written demand is made by the surviving spouse or the spouse's successor in interest.
If the title to any property to which this chapter applies is held by the surviving spouse at the time of the decedent's death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which this chapter applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.
(a) If a surviving spouse has apparent title to property to which this chapter applies, a purchaser for value or a lender taking a security interest in the property takes the interest in the property free of any rights of the personal representative or an heir or devisee of the decedent. (b) If a personal representative or an heir or devisee of the decedent has apparent title to property to which this chapter applies, a purchaser for value or a lender taking a security interest in the property takes the interest in the property free of any rights of the surviving spouse. (c) A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly. (d) The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.
This chapter does not affect rights of creditors with respect to property to which this chapter applies.
This chapter does not prevent married persons from severing or altering their interests in property to which this chapter applies.
This chapter does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.
This chapter shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states that enact it.
This chapter may be cited as the Uniform Disposition of Community Property Rights at Death Act.
(a) This chapter applies to a transfer that refers to this chapter in the designation under AS 13.46.080(a) by which the transfer is made, if at the time of the transfer, the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from this state. (b) A person designated as custodian under this chapter is subject to personal jurisdiction in this state with respect to a matter relating to the custodianship. (c) A transfer that purports to be made and that is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act of another state is governed by the law of the designated state.
(a) A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act. The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights that is registered with or delivered to the payor, issuer, or other obligor of the contractual rights. (b) A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under AS 13.46.080(a). (c) The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under AS 13.46.080. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property under AS 13.46.080.
A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor under AS 13.46.080.
(a) A personal representative or trustee may make an irrevocable transfer under AS 13.46.080 to a custodian for the benefit of a minor as authorized in the governing will or trust. (b) If the testator or settlor has nominated a custodian under AS 13.46.020 to receive the custodial property, the transfer must be made to that person. (c) If the testator or settlor has not nominated a custodian under AS 13.46.020, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under AS 13.46.080(a).
(a) Subject to (c) of this section, a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor under AS 13.46.080, in the absence of a will or under a will or trust that does not contain an authorization to do so. (b) Subject to (c) of this section, a conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor under AS 13.46.080. (c) A transfer under (a) or (b) of this section may be made only if (1) the personal representative, trustee, or conservator considers the transfer to be in the best interest of the minor; (2) the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust, agreement, or other governing instrument; and (3) the transfer is authorized by the court if it exceeds $25,000 in value.
(a) Subject to (b) and (c) of this section, a person not subject to AS 13.46.040 or 13.46.050 who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor under AS 13.46.080. (b) If a person having the right to do so under AS 13.46.020 has nominated a custodian under that section to receive the custodial property, the transfer must be made to that person. (c) If a custodian has not been nominated under AS 13.46.020, or all persons nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor's family or to a trust company unless the property exceeds $5,000 in value.
A written receipt by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian under this chapter.
(a) Custodial property is created and a transfer is made when (1) an uncertificated security or a certificated security in registered form is either (A) registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act; or  (B) delivered if in certificated form, or a document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set out in (b) of this section; (2) money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act;  (3) the ownership of a life or endowment insurance policy or annuity contract is either (A) registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act; or  (B) assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act;  (4) an irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act;  (5) an interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act;  (6) a certificate of title issued by a department or agency of a state or of the United States that evidences title to tangible personal property is either (A) issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act; or  (B) delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act; or  (7) an interest in property not described in (1) - (6) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set out in (b) of this section. (b) An instrument in the following form satisfies the requirements of (a)(1)(B) and (a)(7) of this section: TRANSFER UNDER THE ALASKA UNIFORM TRANSFERS TO MINORS ACT I, _____________________________________________________________________ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to _____________________________________ (name of custodian), as custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it). Dated: _____________________________________  (Signature) _____________________________________ (name of custodian) has received the property described above as custodian for the minor named above under the Alaska Uniform Transfers to Minors Act. Dated: _____________________________________  _____________________________________________________________________   (Signature of Custodian) (c) A transferor shall place the custodian in control of the custodial property as soon as practicable.
(a) The stock or membership in a corporation organized under the law of this state under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act) that a minor is entitled to receive under that Act shall be held by a custodian. (b) A person making a transfer of stock, whether by gift, devise, or other method, may nominate a custodian. In the absence of a nomination, the custodian shall be determined under the order of priority set out below. The appointment becomes effective upon the corporation's receipt of the custodian's written consent to the appointment. The order of priority is: (1) the legal guardian, if any, of the minor; (2) a parent, if any, of the minor, as selected by the parents; (3) an adult member of the minor's family; in this paragraph, member of the minor's family has the meaning given in AS 13.46.990, and also includes members of a family with whom the minor has customarily lived. (c) For good cause, a district court or the superior court may vary the order of priority set out in (b) of this section or appoint another suitable person as custodian. (d) The custodianship is governed by this chapter, as modified by the following: (1) [Repealed,  12 ch 60 SLA 1992.] (2) under AS 13.46.150, a third person is responsible for determining whether stock is inalienable under the Act; (3) the custodian shall give an appropriate receipt for property received for the minor; (4) the custodian may not alienate inalienable property except within the limits provided by law; (5) the form of registration or title shall be as custodian for _____________________________________ (name of minor) under the Alaska Native Claims Settlement Act; (6) a custodian may not receive compensation except, upon application to and approval by the superior court, for unusual and extraordinary services; (7) custodial property includes securities, money, and other real and personal property under supervision as a consequence of the Act. (e) Notwithstanding AS 13.46.190, the stock shall be transferred to the minor when the minor reaches 18 years of age, or to the minor's heirs if the minor dies before reaching 18 years of age. (f) In this section, (1) Act means 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act); (2) minor means an individual who is less than 18 years of age; (3) stock means the stock or membership in a corporation that is organized under the law of this state under the Act and that a minor is entitled to receive under the Act, whether by gift, devise, or other method; stock includes inchoate rights to stock.
A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship.
(a) The validity of a transfer made in a manner prescribed in this chapter is not affected by (1) failure of the transferor to comply with AS 13.46.080(c) concerning possession and control; (2) designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under AS 13.46.080(a); or (3) death or incapacity of a person nominated under AS 13.46.020 or designated under AS 13.46.080 as custodian or the disclaimer of the office by that person. (b) A transfer made under AS 13.46.080 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this chapter, and neither the minor nor the minor's legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this chapter. (c) By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter and grants to the custodian, and to a third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this chapter.
(a) A custodian shall (1) take control of custodial property; (2) register or record title to custodial property if appropriate; and (3) collect, hold, manage, invest, and reinvest custodial property. (b) In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute, except AS 13.90.010, restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain custodial property received from a transferor. (c) A custodian may invest in or pay premiums on life insurance or endowment policies on (1) the life of the minor only if the minor or the minor's estate is the sole beneficiary; or (2) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary. (d) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: as a custodian for _____________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act. (e) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of 14 years.
(a) A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only. (b) This section does not relieve a custodian from liability for breach of AS 13.46.110.
(a) A custodian may deliver or pay to the minor or expend for the minor's benefit as much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (1) the duty or ability of the custodian personally or of another person to support the minor; or (2) other income or property of the minor that may be applicable or available for that purpose. (b) On petition of an interested person or the minor if the minor has attained the age of 14 years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit as much of the custodial property as the court considers advisable for the use and benefit of the minor. (c) A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect an obligation of a person to support the minor.
(a) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties. (b) Except for one who is a transferor under AS 13.46.030, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year. (c) Except as provided in AS 13.46.170(f), a custodian is not required to give a bond.
A third person in good faith and without court order may act on the instructions of or otherwise deal with a person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining (1) the validity of the purported custodian's designation; (2) the propriety of, or the authority under this chapter for, an act of the purported custodian; (3) the validity or propriety under this chapter of an instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or (4) the propriety of the application of property of the minor delivered to the purported custodian.
(a) A claim based on (1) a contract entered into by a custodian acting in a custodial capacity, (2) an obligation arising from the ownership or control of custodial property, or (3) a tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable. (b) A custodian is not personally liable (1) on a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or (2) for an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault. (c) A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.
(a) A person nominated under AS 13.46.020 or designated under AS 13.46.080 as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and a substitute custodian able, willing, and eligible to serve was not nominated under AS 13.46.020, the person who made the nomination may nominate a substitute custodian under AS 13.46.020; otherwise the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under AS 13.46.080(a). The custodian so designated has the rights of a successor custodian. (b) A custodian at any time may designate a trust company or an adult other than a transferor under AS 13.46.030 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed. (c) A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of 14 years and to the successor custodian and by delivering the custodial property to the successor custodian. (d) If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of 14 years, the minor may designate as successor custodian, in the manner prescribed in (b) of this section, an adult member of the minor's family, a conservator of the minor, or a trust company. If the minor has not attained the age of 14 years or fails to act within 60 days after the ineligibility, death, or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or another interested person may petition the court to designate a successor custodian. (e) A custodian who declines to serve under (a) of this section or resigns under (c) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received. (f) A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of 14 years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under AS 13.46.030 or to require the custodian to give appropriate bond.
(a) A minor who has attained the age of 14 years, the minor's guardian of the person or legal representative, an adult member of the minor's family, a transferor, or a transferor's legal representative may petition the court for (1) an accounting by the custodian or the custodian's legal representative; or (2) a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under AS 13.46.160 to which the minor or the minor's legal representative was a party. (b) A successor custodian may petition the court for an accounting by the predecessor custodian. (c) The court, in a proceeding under this chapter or in another proceeding, may require or permit the custodian or the custodian's legal representative to account. (d) If a custodian is removed under AS 13.46.170(f), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.
The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earlier of the (1) minor's attainment of 21 years of age with respect to property transferred under AS 13.46.030 or 13.46.040 unless the time of transfer of the custodial property to the minor is changed under AS 13.46.195 or 13.46.197; (2) minor's attainment of 18 years of age with respect to property transferred under AS 13.46.050 or 13.46.060, unless the time of transfer of the custodial property to the minor is changed under AS 13.46.197; (3) time specified in the transfer under AS 13.46.080 if the time of transfer of the custodial property to the minor is changed under AS 13.46.195 or 13.46.197; or (4) minor's death.
(a) Subject to the requirements and limitations of this section, the time for transfer to the minor of custodial property transferred under AS 13.46.030 or 13.46.040 may be changed to a specified time other than the time the minor attains the age of 21 years. That time shall be specified in the transfer under AS 13.46.080. (b) To specify a changed time for transfer to the minor of the custodial property under AS 13.46.030 except for the transfer by irrevocable gift, or under AS 13.46.040, the words as custodian for _____________________________________ (name of minor) until age _________ (age for delivery of property to minor) under the Alaska Uniform Transfers to Minors Act shall be substituted in substance for the words as custodian for _____________________________________________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act in making the transfer under AS 13.46.080. (c) To specify a changed time for transfer to the minor of the custodial property under AS 13.46.030 by irrevocable gift, the words as custodian for _____________________________________ (name of minor) until age _________ (age for delivery of property to minor) under the Alaska Uniform Transfers to Minors Act or as custodian for _____________________________________________________________________ (name of minor) until age _________ (age for delivery of property to minor) under the Alaska Uniform Transfers to Minors Act, subject to the minor's right to compel immediate distribution of the property by giving written notice to the custodian during the six-month period beginning on the minor's 21st birthday shall be substituted in substance for the words as custodian for _____________________________________________________________________ (name of minor) under the Alaska Uniform Transfers to Minors Act in making the transfer under AS 13.46.080. (d) The time for transfer to the minor of custodial property transferred under AS 13.46.040 may be changed under this section if the governing will or trust or nomination provides in substance that the custodianship is to continue until the time the minor attains a specified age. That time may not be earlier than the time the minor attains 18 years of age or later than the time the minor attains 25 years of age, and in that case the governing will or trust or nomination shall determine the time to be specified in the transfer under AS 13.46.080. (e) The time for transfer to the minor of custodial property transferred under AS 13.46.030 may be changed under this section if the transfer under AS 13.46.080 provides in substance that the custodianship is to continue until the time the minor attains a specified age. That time may not be earlier than the time the minor attains 18 years of age or later than the time the minor attains 25 years of age. (f) If the transfer under AS 13.46.080 does not specify an age, the time for the transfer of the custodial property to the minor under AS 13.46.190 is the time when the minor attains 21 years of age. (g) If the transfer under AS 13.46.080 provides in substance that the duration of the custodianship is for a time longer than the maximum time permitted by this section for that type of transfer, the custodianship may continue until the minor attains the maximum age permitted by this section for that type of transfer.
(a) A custodian may extend the custodial term under this section to an age older than the age that is specified by this chapter or a transferring document made under AS 13.46.080, subject to the right of the minor to compel immediate distribution under (c) of this section. (b) To extend the custodial term under (a) of this section, the custodian shall give the minor written notice of the custodian's intent to extend the custodial term. The notice must specify the duration of the extension by indicating the new custodial term and must inform the minor of the minor's right to compel immediate distribution under (c) of this section. The custodian shall give the notice during the later of the following periods: (1) the six-month period that precedes the last day of the custodial term; or (2) the six-month period that begins on the minor's 18th birthday. (c) Rather than permit the extension of the custodial term, the minor may compel immediate distribution of all or part of the custodial property by giving written notice to the custodian (1) during the six-month period that begins on the day that is the last day of the current custodial term; or (2) within 90 days after receiving the custodian's notice under (b) of this section. (d) If a minor does not exercise the minor's right to compel distribution under (c) of this section, the custodial term shall be extended as indicated in the custodian's notice given under (b) of this section, and the minor may not compel the immediate distribution of custodial property before the end of the custodial term, as extended. (e) A custodian may extend the custodial term more than once under this section. (f) In this section, custodial term means the time provided in or allowed by this chapter during which the custodian is directed to hold custodial property until the property is transferred to the minor.
This chapter applies to a transfer within the scope of AS 13.46.010 made after December 31, 1990, if the (1) transfer purports to have been made under the Alaska Uniform Gifts to Minors Act; or (2) instrument by which the transfer purports to have been made uses in substance the designation as custodian under the Uniform Gifts to Minors Act or as custodian under the Uniform Transfers to Minors Act of another state, and the application of this chapter is necessary to validate the transfer.
(a) A transfer of custodial property as defined in this chapter made before January 1, 1991, is validated notwithstanding that there was not specific authority in the Alaska Uniform Gifts to Minors Act for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made. (b) This chapter applies to all transfers that were made before January 1, 1991, and that were made in a manner and form prescribed in the Alaska Uniform Gifts to Minors Act, except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on January 1, 1991. (c) AS 13.46.190, 13.46.195, and 13.46.990, with respect to the age of a minor for whom custodial property is held under this chapter, do not apply to custodial property held in a custodianship that terminated because of the minor's attainment of the age of (1) 19 after June 12, 1967, and before September 17, 1980; or (2) 18 after September 16, 1980, and before January 1, 1991. (d) To the extent that this chapter, by virtue of (b) of this section, does not apply to transfers made in a manner prescribed under former AS 45.60 (Alaska Uniform Gifts to Minors Act) or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of AS 45.60 (Alaska Uniform Gifts to Minors Act) does not affect those transfers or those powers, duties, and immunities.
This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
In this chapter, (1) adult means an individual who has attained the age of 18 years; (2) benefit plan means an employer's plan for the benefit of an employee or partner; (3) broker means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others; (4) conservator means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions; (5) court means the superior court; (6) custodial property means (A) an interest in property transferred to a custodian under this chapter; and (B) the income from and proceeds of that interest in property; (7) custodian means a person designated under AS 13.46.080 or a successor or substitute custodian designated under AS 13.46.170; (8) financial institution means a bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law; (9) legal representative means an individual's personal representative or conservator; (10) member of the minor's family means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption; (11) minor means an individual who has not attained the age of 18 years, except that, when used in reference to the beneficiary for whose benefit custodial property is held or to be held, minor means an individual who has not attained the age at which the custodian is required under AS 13.46.190, 13.46.195, and 13.46.197 to transfer the custodial property to the beneficiary; (12) personal representative means an executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions; (13) state includes a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States; (14) transfer means a transaction that creates custodial property under AS 13.46.080; (15) transferor means a person who makes a transfer under this chapter; (16) trust company means a financial institution, corporation, or other legal entity, authorized to exercise general trust powers.
This chapter may be cited as the Alaska Uniform Transfers to Minors Act.
An individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed.
A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.
A transfer on death deed is nontestamentary.
The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.
(a) A transfer on death deed or an instrument revoking a transfer on death deed is void if it is obtained by fraud, duress, or undue influence. (b) A proceeding must be commenced within 12 months after the transferor's death to (1) contest the capacity of the transferor; or (2) determine whether a transfer on death deed or an instrument revoking a transfer on death deed is void because it was obtained by fraud, duress, or undue influence.
A transfer on death deed (1) except as otherwise provided in (2) and (3) of this section, must contain the essential elements and formalities of a properly recordable inter vivos deed; (2) must state that the transfer to the designated beneficiary is to occur at the transferor's death; (3) may not use a beneficiary designation that only identifies beneficiaries as members of a class; a transfer on death deed that uses a beneficiary designation that only identifies beneficiaries as members of a class is void; and (4) must be recorded before the transferor's death in the public records in the office of the recorder in the recording district where the property is located.
A transfer on death deed is effective without (1) notice or delivery to, or acceptance by, the designated beneficiary during the transferor's life; or (2) consideration.
(a) Subject to (b) of this section, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument (1) is one of the following: (A) a transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency; (B) an instrument of revocation that expressly revokes the deed or part of the deed; (C) an inter vivos deed that expressly revokes the transfer on death deed or part of the deed; or (D) to the extent of the interest transferred by the inter vivos deed, an inter vivos deed that transfers an interest in property that is the subject of a transfer on death deed; and (2) is acknowledged by the transferor after the acknowledgment of the deed being revoked and recorded before the transferor's death in the recording district where the deed is recorded. (b) If a transfer on death deed is made by more than one transferor, (1) revocation by a transferor does not affect the deed as to the interest of another transferor; and (2) a deed of joint owners is revoked only if it is revoked by all of the living joint owners. (c) After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed. (d) This section does not limit the effect of an inter vivos transfer of the property. (e) If a recorded power of attorney or the transfer on death deed expressly grants a designated agent of the transferor the power to revoke a transfer on death deed, the designated agent may revoke the transfer on death deed as provided in this section.
During a transferor's life, a transfer on death deed does not (1) affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property; (2) affect an interest or right of a transferee, even if the transferee has actual or constructive notice of the deed; (3) affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed; (4) affect the transferor's or designated beneficiary's eligibility for any form of public assistance; (5) create a legal or equitable interest in favor of the designated beneficiary; or (6) subject the property to claims or process of a creditor of the designated beneficiary.
(a) Except as otherwise provided in the transfer on death deed, in this section, or in AS 13.12.203, 13.12.702, 13.12.803, or 13.12.804, on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death: (1) subject to (2) of this subsection, the interest in the property is transferred to the designated beneficiary under the deed; (2) the interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor; the interest of a designated beneficiary that fails to survive the transferor lapses; (3) subject to (4) and (5) of this subsection, concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship; (4) if the transferor has identified two or more designated beneficiaries to receive concurrent interests in the property and if the transferor has not named an alternate designated beneficiary under (5) of this subsection for the share of a designated beneficiary that lapses or fails for any reason, the lapsing or failing share is transferred to the other remaining designated beneficiaries in proportion to the interest of each remaining beneficiary in the remaining part of the property held concurrently; (5) the transferor may identify one or more alternate designated beneficiaries to take the share of a designated beneficiary that lapses or fails for any reason. (b) Subject to AS 40.17, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the transferor's death. For purposes of this subsection and AS 40.17, the recording of the transfer on death deed is considered to have occurred at the transferor's death. (c) If a transferor is a joint owner and is (1) survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship; or (2) the last surviving joint owner, the transfer on death deed is effective. (d) A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.
A beneficiary may disclaim all or part of the beneficiary's interest as provided by AS 13.70 (Uniform Disclaimer of Property Interests Act).
(a) To the extent the transferor's probate estate is insufficient to satisfy an allowed claim against the estate, the costs of administration of the estate, or a statutory allowance to a surviving spouse or child, the estate may enforce the liability against property transferred at the transferor's death by a transfer on death deed. (b) If more than one property is transferred by one or more transfer on death deeds, the liability under (a) of this section is apportioned among the properties in proportion to their net values at the transferor's death. (c) A proceeding to enforce the liability under this section must be commenced not later than 12 months after the transferor's death. A proceeding to enforce the liability under (a) of this section may not be commenced unless the personal representative of the transferor's estate has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the decedent.
The following form may be used to create a transfer on death deed. The provisions of this chapter govern the effect of this or any other instrument used to create a transfer on death deed.(front of form)REVOCABLE TRANSFER ON DEATH DEEDNOTICE TO OWNERYou should carefully read all information on the other side of this form. Transferring real property by using a transfer on death deed may have important legal consequences in addition to designating who will receive the real property on the transferor's death. These consequences may include, but are not limited to, (1) affecting the beneficiary's eligibility for public assistance; and (2) affecting creditors' rights. If you have any questions, you should consult an attorney. This form must be recorded before your death, or it will not be effective.IDENTIFYING INFORMATIONOwner or Owners Making This Deed:____________Printed name Mailing address______Marital status____________Printed name Mailing address______Marital statusLegal description of the property:___________________PRIMARY BENEFICIARY/BENEFICIARIES(Please list one or more primary beneficiaries. You may want to obtain legal advice before listing more than one primary beneficiary. There is more than one way to transfer property to several persons.)I designate the following beneficiary if the beneficiary survives me:____________Printed name Mailing address, if available______Marital statusALTERNATE BENEFICIARY/BENEFICIARIES - Optional(You may list one or more alternate beneficiaries. You may want to obtain legal advice before listing more than one alternate beneficiary. There is more than one way to transfer property to several persons.)If my primary beneficiary does not survive me, I designate the following alternate beneficiary if that beneficiary survives me:____________Printed name Mailing address, if available______Marital statusTRANSFER ON DEATHAt my death, I transfer my interest in the described property to the beneficiaries as designated above.Before my death, I have the right to revoke this deed.AUTHORITY OF DESIGNATED AGENT TO REVOKE THIS DEEDI authorize the following designated agent to revoke this deed before my death:____________Printed name Mailing addressSIGNATURE OF OWNER OR OWNERS MAKING THIS DEED____________Signature Date____________Signature Date____________ACKNOWLEDGMENTState of ______ Judicial District (or County of ______ or Municipality of ______)The foregoing instrument was acknowledged before me this (date) by (name of person who acknowledged). Signature of Person Taking Acknowledgment ___________________ Title or Rank ___________________ Serial Number, if any(back of form)COMMON QUESTIONS ABOUT THE USE OF THIS FORMWhat does the Transfer on Death (TOD) deed do? When you die, this deed transfers the described property, subject to any liens or mortgages (or other encumbrances) on the property at your death. Probate is not required. The TOD deed has no effect until you die. You can revoke it at any time. You are also free to transfer the property to someone else during your lifetime. If you do not own any interest in the property when you die, this deed will have no effect.How do I make a TOD deed? Complete this form. Have it acknowledged before a notary public or other individual authorized by law to take acknowledgments. Record the form in each recording district where any part of the property is located. The form has no effect unless it is acknowledged and recorded before your death.Is the legal description of the property necessary? Yes.How do I find the legal description of the property? This information may be on the deed you received when you became an owner of the property. This information may also be available in the office of the recorder in the recording district where the property is located. If you are not absolutely sure, consult a lawyer.Can I change my mind before I record the TOD deed? Yes. If you have not yet recorded the deed and want to change your mind, simply tear up or otherwise destroy the deed.How do I record the TOD deed? Take the completed and acknowledged form to the office of the recorder in the recording district where the property is located. Follow the instructions given by the recorder to make the form part of the official property records. If the property is in more than one recording district, you should record the deed in each recording district.Can I later revoke the TOD deed if I change my mind? Yes. You can revoke the TOD deed. Except for a court, no one, including the beneficiaries, can prevent you from revoking the deed.How do I revoke the TOD deed after it is recorded? There are three ways to revoke a recorded TOD deed: (1) Complete and acknowledge a revocation form, and record it in each recording district where the property is located. (2) Complete and acknowledge a new TOD deed that disposes of the same property, and record it in each recording district where the property is located. (3) Transfer the property to someone else during your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the TOD deed by will.I am being pressured to complete this form. What should I do? Do not complete this form under pressure. Seek help from a trusted family member, friend, or lawyer.Do I need to tell the beneficiaries about the TOD deed? No, but it is recommended. Secrecy can cause later complications and might make it easier for others to commit fraud.I have other questions about this form. What should I do? This form is designed to fit some but not all situations. If you have other questions, you are encouraged to consult a lawyer. 
The following form may be used to create an instrument of revocation under this chapter. The provisions of this chapter govern the effect of this or any other instrument used to revoke a transfer on death deed.(front of form)REVOCATION OF TRANSFER ON DEATH DEEDNOTICE TO OWNER This revocation must be recorded before you die or it will not be effective. This revocation is effective only as to the interests in the property of owners who sign this revocation.IDENTIFYING INFORMATION Owner or Owners Making This Revocation:____________Printed name Mailing address, if available______Marital status____________Printed name Mailing address, if available______Marital statusLegal description of the property: ___________________REVOCATION I revoke all my previous transfers of this property by transfer on death deed.SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION____________Signature Date____________Signature DateACKNOWLEDGMENT State of ______ Judicial District (or County of ______ or Municipality of ______) The foregoing instrument was acknowledged before me this (date) by (name of person who acknowledged). ___________________ Signature of Person Taking Acknowledgment ___________________ Title or Rank ___________________ Serial Number, if any(back of form)COMMON QUESTIONS ABOUT THE USE OF THIS FORMHow do I use this form to revoke a Transfer on Death (TOD) deed? Complete this form. Have it acknowledged before a notary public or other individual authorized to take acknowledgments. Record the form in the public records in the office of the recorder in each recording district where the property is located. The form must be acknowledged and recorded before your death or it has no effect.How do I find the legal description of the property? This information may be on the TOD deed. It may also be available in the office of the recorder in the recording district where the property is located. If you are not absolutely sure, consult a lawyer.How do I record the form? Take the completed and acknowledged form to the office of the recorder in the recording district where the property is located. Follow the instructions given by the recorder to make the form part of the official property records. If the property is located in more than one recording district, you should record the form in each of those recording districts.I am being pressured to complete this form. What should I do? Do not complete this form under pressure. Seek help from a trusted family member, friend, or lawyer.I have other questions about this form. What should I do? This form is designed to fit some but not all situations. If you have other questions, consult a lawyer. 
The provisions of this chapter do not affect any method of transferring property otherwise permitted under the law of this state.
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
The provisions of this chapter modify, limit, and supersede 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), but do not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).
In this chapter, (1) beneficiary means a person who receives property under a transfer on death deed; (2) designated beneficiary means a person designated to receive property in a transfer on death deed; (3) joint owner means an individual who is a tenant by the entirety, who is an owner of community property with a right of survivorship, or who otherwise owns property concurrently with one or more other individuals with a right of survivorship, but does not include an individual who is a tenant in common or other owner of community property without a right of survivorship or who is a joint tenant, other than an individual who is a tenant by the entirety; (4) person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity; (5) property means an interest in real property located in this state which is transferable on the death of the owner; (6) transfer on death deed means a deed authorized under this chapter; (7) transferor means an individual who makes a transfer on death deed.
This chapter may be cited as the Uniform Real Property Transfer on Death Act.
(a) Except for information on a motor vehicle or identification document issued to a donor who declines to participate in a registry, when a person who applies for a motor vehicle or identification document makes a gift with the application, the department shall electronically transfer all information that appears on the front of the motor vehicle or identification document and any changes that are subsequently received by the department from the donor to a procurement organization that intends to establish a donor registry under AS 13.50.110. (b) A donor to whom a motor vehicle or identification document is issued is not required to participate in a registry, and the department may not transfer information under (a) of this section from a donor who declines to participate in a registry.
(a) A procurement organization that obtains information under AS 13.50.100 shall use the information to establish a statewide donor registry accessible by a recognized organization in (1) this state that handles the recovery or placement of parts of the body; and (2) another state that handles the recovery or placement of parts of the body when a donor who is a resident of this state is not located in this state at the time of or immediately before death. (b) A procurement organization may not (1) use registry information for fund raising; or (2) disseminate information obtained under AS 13.50.100 unless authorized by this section or by federal law. (c) A procurement organization may disseminate information obtained under AS 13.50.100 to another procurement organization.
A procurement organization may acquire donor information from sources other than the department.
(a) A procurement organization that has requested registry information from the department shall pay the reasonable costs associated with the creation by the organization of a registry and the reasonable costs associated with the initial installation and establishment of the facilities necessary for electronic transfer of the donor information to the organization by the department. (b) After the initial transfer of information under (a) of this section, the department shall make all transfers of donor information without charge to a procurement organization.
(a) A donor whose motor vehicle or identification document information is on a registry shall notify a procurement organization or the department of the destruction or mutilation of the motor vehicle or identification document or revocation of the gift under AS 13.52.183 in order to remove the donor's name from a registry. If the procurement organization that is notified does not maintain a registry, the organization shall notify all procurement organizations that do maintain a registry. (b) The failure of a donor to make the notification under (a) of this section does not affect the revocation of a gift under AS 13.52.183.
(a) An applicant for a motor vehicle or identification document may donate $1 or more to the fund to promote in the state the donation of body parts under AS 13.52 (Health Care Decisions Act). The donation is voluntary and may be declined by the applicant. The department shall make available to all applicants information on the importance of making gifts. (b) The department shall collect the donations made under (a) of this section and credit the donations to the fund. At least quarterly, the department shall transfer the donations to the fund. (c) The department shall ask each applicant for a motor vehicle or identification document whether the applicant is interested in making the donation under (a) of this section. (d) Each procurement organization shall pay its proportionate share of the reasonable costs associated with the creation of the donation program created under this section, unless another amount is agreed to by the department.
(a) The anatomical gift awareness fund is established. The fund consists of all donations made under AS 13.50.150, other donations to the fund for a purpose identified under (b) of this section, money received by the department under AS 13.50.130, and appropriations made to the fund. (b) The purposes of the fund are to promote gifts in the state under AS 13.52 and to administer the donation program established under AS 13.50.150. (c) [Repealed,  6 ch 46 SLA 2007.]  (d) Money in the fund may be appropriated by the legislature to an organization for the purpose of promoting the donation programs established in AS 13.50 and AS 13.52. (e) Money appropriated to the fund may be spent for the purposes of the fund without further appropriation. Money appropriated to the fund does not lapse.
A person who knowingly violates AS 13.50.110(b)(1) or (2) is guilty of a class B misdemeanor.
In this chapter, (1) department means the Department of Administration; (2) donation means a monetary donation made under AS 13.50.150; (3) donor has the meaning given in AS 13.52.268; (4) fund means the anatomical gift awareness fund established under AS 13.50.160; (5) gift means an anatomical gift; in this paragraph, anatomical gift has the meaning given in AS 13.52.390; (6) motor vehicle or identification document means (A) a motor vehicle registration, a driver's license, or an instruction permit, or a renewal of the registration, license, or permit; or (B) an identification card issued under AS 18.65.310; (7) part has the meaning given in AS 13.52.390; (8) procurement organization has the meaning given in AS 13.52.268; (9) reasonable costs includes the cost of (A) computer programming and installing software and software upgrades; (B) employee training that is specific to a registry or the donation program established under AS 13.50.150; (C) producing literature that is specific to a registry or the donation program established under AS 13.50.150; and (D) making hardware upgrades or handling other issues for a registry or the donation program established under AS 13.50.150; (10) registry means a donor registry established under AS 13.50.110; (11) registry information means information obtained under AS 13.50.100; (12) state means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
(a) Except as provided in AS 13.52.173, an adult may give an individual instruction. Except as provided in AS 13.52.177, the instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises. (b) An adult may execute a durable power of attorney for health care, which may authorize the agent to make any health care decision the principal could have made while having capacity. The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions. The power must be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one of the following methods: (1) signed by at least two individuals who are personally known by the principal, each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgment of the signature of the instrument; or (2) acknowledged before a notary public at a place in this state. (c) Unless related to the principal by blood, marriage, or adoption, an agent under a durable power of attorney for health care may not be an owner, operator, or employee of the health care institution at which the principal is receiving care. (d) A witness for a durable power of attorney for health care may not be (1) a health care provider employed at the health care institution or health care facility where the principal is receiving health care; (2) an employee of the health care provider providing health care to the principal, or of the health care institution or health care facility where the principal is receiving health care; or (3) the agent. (e) At least one of the individuals used as a witness for a durable power of attorney for health care shall be someone who is not (1) related to the principal by blood, marriage, or adoption; or (2) entitled to a portion of the estate of the principal upon the principal's death under a will or codicil of the principal existing at the time of execution of the durable power of attorney for health care or by operation of law then existing. (f) Unless otherwise specified in the durable power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity. (g) Unless otherwise specified in a written advance health care directive, a determination that a principal lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, shall be made by (1) the primary physician, except in the case of mental illness; (2) a court in the case of mental illness, unless the situation is an emergency; or (3) the primary physician or another health care provider in the case of mental illness where the situation is an emergency. (h) An agent shall make a health care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent. (i) A health care decision made by an agent for a principal is effective without judicial approval. (j) A written advance health care directive may include the individual's nomination of a guardian of the individual. (k) Except as provided in AS 13.52.247(a), an advance health care directive, including an advance health care directive that is made in compliance with the laws of another state, is valid for purposes of this chapter if it complies with this chapter, regardless of where or when it was executed or communicated. (l) Notwithstanding the sample form provided under AS 13.52.300, an individual instruction that would be valid by itself under this chapter is valid even if the individual instruction is contained in a writing that also contains a durable power of attorney for health care and the durable power of attorney does not meet the witnessing or other requirements of this chapter.
(a) Except in the case of mental illness under (c) of this section, a principal may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider. (b) Except in the case of mental illness under (c) of this section and except as provided by AS 13.52.183, a principal may revoke all or part of an advance health care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke. (c) In the case of mental illness, an advance health care directive may be revoked in whole or in part at any time by the principal if the principal does not lack capacity and is competent. A revocation is effective when a competent principal with capacity communicates the revocation to a physician or other health care provider. The physician or other health care provider shall note the revocation on the principal's medical record. In the case of mental illness, the authority of a named agent and an alternative agent named in the advance health care directive continues in effect as long as the advance health care directive appointing the agent is in effect or until the agent has withdrawn. For the purposes of this subsection, a principal is not considered competent when (1) it is the opinion of the court in a guardianship proceeding under AS 13.26, the opinion of two physicians, at least one of whom is a psychiatrist, or the opinion of a physician and a professional mental health clinician, that the principal is not competent; or (2) a court in a hearing under AS 47.30.735, 47.30.750, or 47.30.770 determines that the principal is gravely disabled; in this paragraph, gravely disabled has the meaning given in AS 47.30.915(9)(B). (d) A health care provider, agent, guardian, or surrogate who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising health care provider and to any health care institution at which the patient is receiving care. (e) A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a durable power of attorney for health care. (f) An advance health care directive that conflicts with an earlier advance health care directive revokes the earlier directive to the extent of the conflict.
A person who has withdrawn as an agent may rescind the withdrawal by executing an acceptance after the date of the withdrawal. A person who rescinds a withdrawal shall give notice to the principal if the principal has capacity or to the principal's health care provider if the principal does not have capacity.
(a) Except in the case of mental health treatment and except as provided by AS 13.52.173 and 13.52.193, a surrogate may make a health care decision for a patient who is an adult if an agent or guardian has not been appointed or the agent or guardian is not reasonably available, and if the patient has been determined by the primary physician to lack capacity. (b) Subject to AS 13.52.055(b), a surrogate may make a decision regarding mental health treatment for a patient who is an adult if (1) an agent or guardian has not been appointed or the agent or guardian is not reasonably available; (2) the mental health treatment is needed on an emergency basis; and (3) the patient has been determined to lack capacity by (A) two physicians, one of whom is a psychiatrist; or (B) a physician and a professional mental health clinician. (c) Except as provided for anatomical gifts in AS 13.52.173, an adult may designate an individual to act as surrogate for that adult by personally informing the supervising health care provider. Except as provided by AS 13.52.173 or 13.52.193, in the absence of a designation, or if the designee is not reasonably available, a member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate: (1) the spouse, unless legally separated; (2) an adult child; (3) a parent; or (4) an adult sibling. (d) Except as provided by (l) of this section or AS 13.52.173 or 13.52.193, if none of the individuals eligible to act as surrogate under (c) of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, and who is reasonably available may act as surrogate. (e) A surrogate shall communicate the surrogate's assumption of authority as promptly as practicable to the health care provider, the health care institution, and the members of the patient's family specified in (c) of this section who can be readily contacted. (f) If more than one member of a class under (c)(2) - (4) of this section assumes authority to act as surrogate, the members of that class do not agree on a health care decision, and the supervising health care provider is informed of the disagreement, the supervising health care provider shall comply with the decision of a majority of the members of that class who have communicated their views to the provider. If the class is evenly divided concerning the health care decision and the supervising health care provider is informed of the even division, that class and all individuals having a lower priority under (c)(2) - (4) of this section are disqualified from making the decision, and the primary physician, after consulting with all individuals in that evenly divided class who are reasonably available, shall make a decision based on the consultation and the primary physician's own determination of the best interest of the patient. (g) A surrogate shall make a health care decision in accordance with the patient's individual instructions or other advance health care directives, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate. (h) If a patient's primary health care provider observes that a surrogate is not abiding by the wishes, values, and best interest of the patient, the primary health care provider may decline to comply with a decision of the surrogate and shall notify the health care institution where the primary health care provider is providing health care to the patient. (i) A health care decision made by a surrogate for a patient is effective without judicial approval. (j) A patient who has capacity may, at any time, disqualify another person, including a member of the patient's family, from acting as the patient's surrogate by a signed writing or by personally informing the supervising health care provider of the disqualification. (k) Unless related to the patient by blood, marriage, or adoption, a surrogate may not be an owner, operator, or employee of the health care facility where the patient is receiving care. (l) A supervising health care provider may require an individual claiming the right to act as a surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.
(a) Subject to AS 13.52.183, 13.52.193, and 13.52.203, a guardian shall comply with the ward's individual instructions and may not revoke a ward's advance health care directive executed before the ward's incapacity unless a court expressly authorizes the revocation. (b) Unless there is a court order to the contrary, a health care decision of an agent takes precedence over that of a guardian. (c) Except as provided in (a) of this section, a health care decision made by a guardian for the ward is effective without judicial approval.
Notwithstanding any other provision of this chapter, an agent or a surrogate may determine that life-sustaining procedures may be withheld or withdrawn from a patient with a qualifying condition when there is (1) a durable power of attorney for health care or other writing that clearly expresses the patient's intent that the procedures be withheld or withdrawn; or (2) no durable power of attorney for health care or other writing that clearly expresses the patient's intent to the contrary, the patient has a qualifying condition as determined under AS 13.52.160, and withholding or withdrawing the procedures would be consistent with the patient's best interest.
Unless there is a durable power of attorney for health care or another writing clearly expressing an individual's intent to the contrary, an agent or surrogate may not consent on behalf of a patient to an abortion, sterilization, psychosurgery, or removal of bodily organs except when the abortion, sterilization, psychosurgery, or removal of bodily organs is necessary to preserve the life of the patient or to prevent serious impairment of the health of the patient.
(a) Before implementing a health care decision for a woman of childbearing age that would affect a fetus if present, the supervising health care provider shall take reasonable steps to determine whether the woman is pregnant. (b) Notwithstanding any other provision of this chapter to the contrary, an advance health care directive by a patient or a decision by the person then authorized to make health care decisions for a patient may not be given effect if (1) the patient is a woman who is pregnant and lacks capacity; (2) the directive or decision is to withhold or withdraw life-sustaining procedures; (3) the withholding or withdrawal of the life-sustaining procedures would, in reasonable medical judgment, be likely to result in the death of the patient; and (4) it is probable that the fetus could develop to the point of live birth if the life-sustaining procedures were provided. (c) This section does not apply to emergency services in the field.
(a) Before implementing a health care decision made for a patient, a supervising health care provider, if possible, shall promptly communicate to the patient the decision made and the identity of the person making the decision. (b) A supervising health care provider who knows of the existence of an advance health care directive, a revocation of an advance health care directive, or a designation or disqualification of a surrogate shall promptly record its existence in the patient's health care record, shall request a copy if it is in writing, and shall arrange for its maintenance in the health care record if a copy is furnished. (c) A supervising health care provider who makes or is informed of a determination that a patient lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, a guardian, or a surrogate, shall promptly record the determination in the patient's health care record and communicate the determination to the patient, if possible, and to any person then authorized to make health care decisions for the patient. (d) Except as provided in (e), (f), and (i) of this section and by AS 13.52.253, a health care provider, health care institution, or health care facility providing care to a patient shall comply with (1) an individual instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health care decisions for the patient; and (2) a health care decision for the patient made by a person then authorized to make health care decisions for the patient to the same extent as if the decision had been made by the patient while having capacity. (e) A health care provider may decline to comply with an individual instruction or a health care decision for reasons of conscience, except for a do not resuscitate order. A health care institution or health care facility may decline to comply with an individual instruction or health care decision if the instruction or decision is contrary to a policy of the institution or facility that is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health care decisions for the patient. (f) A health care provider, health care institution, or health care facility may decline to comply with an individual instruction or a health care decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the provider, institution, or facility. In this subsection, medically ineffective health care means health care that according to reasonable medical judgment cannot cure the patient's illness, cannot diminish its progressive course, and cannot effectively alleviate severe discomfort and distress. (g) A health care provider, health care institution, or health care facility that declines to comply with an individual instruction or a health care decision shall (1) promptly inform the patient, if possible, and any person then authorized to make health care decisions for the patient that the provider, institution, or facility has declined to comply with the instruction or decision; (2) provide continuing care to the patient until a transfer is effected; and (3) unless the patient or person then authorized to make health care decisions for the patient refuses assistance, immediately cooperate and comply with a decision by the patient or a person then authorized to make health care decisions for the patient to transfer the patient to another health care institution, to another health care facility, to the patient's home, or to another location chosen by the patient or by the person then authorized to make health care decisions for the patient. (h) Except as provided for civil commitments under AS 47.30.817, a health care provider, health care institution, or health care facility may not require or prohibit the execution or revocation of an advance health care directive as a condition for providing health care. (i) Notwithstanding the exception in (e) of this section for do not resuscitate orders, a health care provider may perform cardiopulmonary resuscitation or other resuscitative measures on a patient even if there is a do not resuscitate order for the patient if the condition requiring cardiopulmonary resuscitation or other resuscitative measures is precipitated by complications arising out of medical services being provided by the health care provider to the patient. (j) The provisions of (i) of this section do not apply when a health care provider performs emergency medical services on a patient in the field, unless an online physician orders the health care provider to perform cardiopulmonary resuscitation or other resuscitative measures; in this subsection, (1) health care provider does not include a physician; (2) in the field does not include in a health care facility, health care institution, hospital, or mental health facility; (3) online physician means a physician who is immediately available in person or by radio or telephone, when medically appropriate, for communication of medical direction to health care providers.
(a) A physician, an advanced practice registered nurse, or a physician assistant may issue a do not resuscitate order for a patient of the physician, the advanced practice registered nurse, or the physician assistant with the consent of the patient or the parent or guardian of the patient if the patient is under 18 years of age. The physician, the advanced practice registered nurse, or the physician assistant shall document the grounds for the order in the patient's medical file. (b) The department shall by regulation adopt a protocol, subject to the approval of the State Medical Board, for do not resuscitate orders that sets out a standardized method of procedure for the withholding of cardiopulmonary resuscitation by health care providers and health care institutions. (c) The department shall develop standardized designs and symbols for do not resuscitate identification cards, forms, necklaces, and bracelets that signify, when carried or worn, that the carrier or wearer is an individual for whom a physician, an advanced practice registered nurse, or a physician assistant has issued a do not resuscitate order. (d) A health care provider other than a physician, an advanced practice registered nurse, or a physician assistant shall comply with the protocol adopted under (b) of this section for do not resuscitate orders when the health care provider is presented with a do not resuscitate identification, an oral do not resuscitate order issued directly by a physician, an advanced practice registered nurse, or a physician assistant if the applicable hospital allows oral do not resuscitate orders, or a written do not resuscitate order entered on and as required by a form prescribed by the department. (e) Notwithstanding (d) of this section, if an individual has made an anatomical gift to occur at death and is in a hospital when a do not resuscitate order or an order to withdraw life-sustaining procedures is to be implemented for the individual, the order may not be implemented until the subject of the anatomical gift can be evaluated to determine if it is suitable for donation. (f) A do not resuscitate order may not be made ineffective unless a physician, an advanced practice registered nurse, or a physician assistant revokes the do not resuscitate order, a patient for whom the order is written and who has capacity requests that the do not resuscitate order be revoked, or the patient for whom the order is written is under 18 years of age and the parent or guardian of the patient requests that the do not resuscitate order be revoked. Any physician, advanced practice registered nurse, or physician assistant of a patient for whom a do not resuscitate order is written may revoke the do not resuscitate order if the person for whom the order is written requests that the physician, the advanced practice registered nurse, or the physician assistant revoke the do not resuscitate order.
(a) Unless otherwise specified in an advance health care directive, a person then authorized to make health care decisions for a patient has the same rights as the patient to request, receive, examine, copy, and consent to the disclosure of medical or other health care information. (b) Notwithstanding (a) of this section, if there is a question about the principal's capacity, an agent or a surrogate of the principal may immediately access the personal health care information necessary to determine the principal's capacity, even if the agency or surrogacy does not become effective until the principal lacks capacity.
(a) A health care provider or health care institution that acts in good faith and in accordance with generally accepted health care standards applicable to the health care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for (1) providing health care information in good faith under AS 13.52.070; (2) complying with a health care decision of a person based on a good faith belief that the person has authority to make a health care decision for a patient, including a decision to withhold or withdraw health care; (3) declining to comply with a health care decision of a person based on a good faith belief that the person then lacked authority; (4) complying with an advance health care directive and assuming in good faith that the directive was valid when made and has not been revoked or terminated; (5) participating in the withholding or withdrawal of cardiopulmonary resuscitation under the direction or with the authorization of a physician, an advanced practice registered nurse, or a physician assistant or upon discovery of do not resuscitate identification upon an individual; (6) causing or participating in providing cardiopulmonary resuscitation or other life-sustaining procedures (A) under AS 13.52.065(e) when an individual has made an anatomical gift; (B) because an individual has made a do not resuscitate order ineffective under AS 13.52.065(f) or another provision of this chapter; or (C) because the patient is a woman of childbearing age and AS 13.52.055 applies; or (7) acting in good faith under the terms of this chapter or the law of another state relating to anatomical gifts. (b) An individual acting as an agent, a guardian, or a surrogate under this chapter is not subject to civil or criminal liability or to discipline for unprofessional conduct for health care decisions made in good faith. (c) A health care provider, health care institution, or health care facility is not subject to civil or criminal liability, or to discipline for unprofessional conduct, if a do not resuscitate order prevents the health care provider, health care institution, or health care facility from attempting to resuscitate a patient who requires cardiopulmonary resuscitation or other resuscitative measures because of complications arising out of health care being administered to the patient by the health care provider, health care institution, or health care facility. This subsection does not apply if the complications suffered by the patient are caused by gross negligence or reckless or intentional actions on the part of the health care provider, health care institution, or health care facility.
(a) A health care provider or institution that intentionally violates this chapter is liable to the aggrieved individual or the individual's estate for damages of $10,000 or actual damages resulting from the violation, whichever is greater, plus attorney fees as provided by court rule. (b) A person who intentionally falsifies, forges, conceals, defaces, or obliterates an individual's advance health care directive or a revocation of an advance health care directive without the individual's consent, or who coerces or fraudulently induces an individual to give, revoke, or not to give an advance health care directive, is liable to that individual for damages of $10,000 or actual damages resulting from the action, whichever is greater, plus attorney fees as provided by court rule.
(a) This chapter does not affect the right of an individual to make health care decisions while having capacity to make health care decisions. (b) An individual is rebuttably presumed to have capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. (c) An individual who is a qualified patient, including an individual for whom a physician, an advanced practice registered nurse, or a physician assistant has issued a do not resuscitate order, has the right to make a decision regarding the use of cardiopulmonary resuscitation and other life-sustaining procedures as long as the individual is able to make the decision. If an individual who is a qualified patient, including an individual for whom a physician, advanced practice registered nurse, or physician assistant has issued a do not resuscitate order, is not able to make the decision, the protocol adopted under AS 13.52.065 for do not resuscitate orders governs a decision regarding the use of cardiopulmonary resuscitation and other life-sustaining procedures.
A copy of a written advance health care directive, revocation of an advance health care directive, or designation or disqualification of an agent or a surrogate has the same effect as the original.
(a) In the absence of evidence to the contrary of the patient's intent, this chapter establishes a presumption in favor of life, consistent with the best interest of the patient. (b) Notwithstanding any other provision of law, death resulting from the withholding or withdrawal of cardiopulmonary resuscitation or other life-sustaining procedures does not, for any purpose, constitute a suicide or homicide if the withholding or withdrawal is (1) consistent with this chapter; and (2) from an individual (A) for whom a do not resuscitate order has not been issued; (B) for whom a do not resuscitate order has been issued under (i) the protocol for do not resuscitate orders established under AS 13.52.065; or (ii) a do not resuscitate identification found on the individual. (c) The issuance of a do not resuscitate order under this chapter, the possession of do not resuscitate identification under this chapter, or the making of a health care directive under this chapter does not affect in any manner the sale, procurement, or issuance of a policy of life insurance, and does not modify the terms of an existing policy of life insurance. A policy of life insurance is not legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining procedures from an insured individual or the withholding or withdrawal of cardiopulmonary resuscitation from an individual who possesses do not resuscitate identification or for whom a do not resuscitate order has been issued, notwithstanding any term of the policy to the contrary. (d) This chapter does not authorize mercy killing, assisted suicide, or euthanasia. (e) This chapter does not authorize or require a health care provider or institution to provide health care contrary to generally accepted health care standards applicable to the health care provider or institution. (f) This chapter does not authorize an agent or a surrogate to consent to the admission of an individual to a mental health facility unless the individual's written advance health care directive expressly so provides, and the period of admission may not exceed 17 days. (g) This chapter does not affect other statutes of this state governing treatment for mental illness of an individual involuntarily committed to a mental health facility.
As a condition of receiving or being insured for health care services, a health care provider, a health care institution, a health care service plan, an insurer issuing health insurance, a self-insured employee welfare benefit plan, or a nonprofit hospital plan may not require an individual to execute a health care directive, obtain a do not resuscitate order from a physician, or possess do not resuscitate identification.
When determining the best interest of a patient under this chapter, health care treatment may not be denied to a patient because the patient has a disability or is expected to have a disability.
On petition of a patient, the patient's agent, guardian, or surrogate, or a health care provider or institution involved with the patient's care, the superior court may enjoin or direct a health care decision or order other equitable relief. A proceeding under this section is governed by AS 13.26.201 - 13.26.580.
A do not resuscitate order or a do not resuscitate identification executed, issued, or authorized in another state or a territory or possession of the United States is valid for the purposes of this chapter if it complies with the laws of this state. A health care provider or health care institution may presume, in the absence of actual notice to the contrary, that the do not resuscitate order or the do not resuscitate identification complies with the laws of this state, regardless of where or when it was executed, issued, or authorized, and that the patient is a qualified patient.
Whether a patient has a qualifying condition under this chapter shall be determined by the primary physician of the patient and by at least one other physician, when another physician is available. A physician making the determination shall document the grounds for the determination in the patient's medical record. Permanent unconsciousness shall be determined in consultation with a neurologist.
Subject to AS 13.52.193, an anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in AS 13.52.177 by (1) the donor, if the donor is an adult or if the donor is a minor and is (A) emancipated; or (B) authorized under state law to apply for a driver's license because the donor is at least 16 years of age; (2) an agent of the donor, unless a durable power of attorney for health care or another record prohibits the agent from making an anatomical gift; (3) a parent of the donor, if the donor is an unemancipated minor; (4) the donor's guardian; or (5) a surrogate.
(a) A donor may make an anatomical gift (1) by authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor's driver's license or identification card; (2) in a will; (3) during a terminal condition of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness; or (4) as provided in (b) of this section. (b) A donor or other person authorized to make an anatomical gift under AS 13.52.173 may make a gift by a donor card or another record signed by the donor or another person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or another person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or the other person and must (1) be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and (2) state that the record has been signed and witnessed as provided in (1) of this subsection. (c) Revocation, suspension, expiration, or cancellation of a driver's license or an identification card on which an anatomical gift is indicated does not invalidate the gift. (d) An anatomical gift made by will takes effect upon the donor's death whether or not the will is probated. Invalidation of the will after the donor's death does not invalidate the gift.
(a) Except in the case of mental illness under AS 13.52.020(c), and subject to AS 13.52.193, a donor or another person authorized to make an anatomical gift under AS 13.52.173 may amend or revoke an anatomical gift by (1) a record signed by (A) the donor; (B) the other person; or (C) subject to (b) of this section, another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or (2) a later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency. (b) A record signed under (a)(1)(C) of this section must (1) be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and (2) state that it has been signed and witnessed as provided in (1) of this subsection. (c) Subject to AS 13.52.193, a donor or another person authorized to make an anatomical gift under AS 13.52.173 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift. (d) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal condition addressed to at least two adults, at least one of whom is a disinterested witness. (e) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in (a) of this section.
(a) An individual may refuse to make an anatomical gift of the individual's body or part by (1) a record signed by (A) the individual; or (B) subject to (b) of this section, another individual acting at the direction of the individual if the individual is physically unable to sign; (2) the individual's will, whether or not the will is admitted to probate or invalidated after the individual's death; or (3) any form of communication made by the individual during the individual's terminal condition addressed to at least two adults, at least one of whom is a disinterested witness. (b) A record signed under (a)(1)(B) of this section must (1) be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and (2) state that it has been signed and witnessed as provided in (1) of this subsection. (c) An individual who has made a refusal may amend or revoke the refusal (1) in the manner provided in (a) of this section for making a refusal; (2) by subsequently making an anatomical gift under AS 13.52.177 that is inconsistent with the refusal; or (3) by destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal. (d) Except as otherwise provided in AS 13.52.193(h), in the absence of an express, contrary indication by the individual set out in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part.
(a) Except as otherwise provided in (g) of this section and subject to (f) of this section, in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under AS 13.52.177 or an amendment to an anatomical gift of the donor's body or part under AS 13.52.183. (b) A donor's revocation of an anatomical gift of the donor's body or part under AS 13.52.183 is not a refusal and does not bar another person specified in AS 13.52.173 or 13.52.197 from making an anatomical gift of the donor's body or part under AS 13.52.177 or 13.52.203. (c) If a person other than the donor makes an unrevoked anatomical gift of the donor's body or part under AS 13.52.177 or an amendment to an anatomical gift of the donor's body or part under AS 13.52.183, another person may not make, amend, or revoke the gift of the donor's body or part under AS 13.52.203. (d) A revocation of an anatomical gift of a donor's body or part under AS 13.52.183 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under AS 13.52.177 or 13.52.203. (e) In the absence of an express, contrary indication by the donor or another person authorized to make an anatomical gift under AS 13.52.173, an anatomical gift of a part is not a refusal to give another part or a limitation on the making of an anatomical gift of another part at a later time by the donor or another person. (f) In the absence of an express, contrary indication by the donor or another person authorized to make an anatomical gift under AS 13.52.173, an anatomical gift of a part for one or more of the purposes set out in AS 13.52.173 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under AS 13.52.177 or 13.52.203. (g) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part. (h) If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal.
(a) Subject to (b) and (c) of this section and unless barred by AS 13.52.187 or 13.52.193, an anatomical gift of a decedent's body or part for the purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed: (1) an agent of the decedent at the time of death who could have made an anatomical gift under AS 13.52.173(2) immediately before the decedent's death; (2) the spouse of the decedent; (3) adult children of the decedent; (4) parents of the decedent; (5) adult siblings of the decedent; (6) adult grandchildren of the decedent; (7) grandparents of the decedent; (8) an adult who exhibited special care and concern for the decedent; (9) the persons who were acting as the guardians of the person of the decedent at the time of death; and (10) any other person having the authority to dispose of the decedent's body. (b) If there is more than one member of a class listed in (a)(1), (3), (4), (5), (6), (7), or (9) of this section entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to whom the gift may pass under AS 13.52.207 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available. (c) A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under (a) of this section is reasonably available to make or to object to the making of an anatomical gift.
(a) Notwithstanding AS 13.52.020, a person authorized to make an anatomical gift under AS 13.52.197 may make an anatomical gift by a document of gift signed by the person making the gift or by that person's oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication. (b) Subject to (c) of this section, an anatomical gift by a person authorized under AS 13.52.197 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under AS 13.52.197 may be (1) amended only if a majority of the reasonably available members agree to the amending of the gift; or (2) revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift. (c) Notwithstanding AS 13.52.020, a revocation under (b) of this section is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation.
(a) An anatomical gift may be made to the following persons named in the document of gift: (1) a hospital, an accredited medical school, a dental school, a college, a university, an organ procurement organization, or another appropriate person, for research or education; (2) subject to (b) of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part; (3) an eye bank or a tissue bank. (b) If an anatomical gift to an individual under (a)(2) of this section cannot be transplanted into the individual, the part passes under (g) of this section in the absence of an express, contrary indication by the person making the anatomical gift. (c) If an anatomical gift of one or more specific parts or of all parts is made in a document of gift that does not name a person described in (a) of this section but identifies the purpose for which an anatomical gift may be used, the following rules apply: (1) if the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank; (2) if the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank; (3) if the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ; (4) if the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization. (d) For the purpose of (c) of this section, if there is more than one purpose of an anatomical gift set out in the document of gift but the purposes are not set out in any priority, the gift shall be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education. (e) If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in (a) of this section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes under (g) of this section. (f) If a document of gift specifies only a general intent to make an anatomical gift by words such as donor, organ donor, or body donor, or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes under (g) of this section. (g) For purposes of (b), (e), and (f) of this section, the following rules apply: (1) if the part is an eye, the gift passes to the appropriate eye bank; (2) if the part is tissue, the gift passes to the appropriate tissue bank; (3) if the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ. (h) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under (a)(2) of this section, passes to the organ procurement organization as custodian of the organ. (i) If an anatomical gift does not pass under (a) - (h) of this section or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part. (j) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under AS 13.52.177 or 13.52.203 or if the person knows that the decedent made a refusal under AS 13.52.187 that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is considered to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift. (k) Except as otherwise provided in (a)(2) of this section, nothing in AS 13.52.173 - 13.52.268 affects the allocation of organs for transplantation or therapy.
(a) The following persons shall make a reasonable search of an individual who the person reasonably believes is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal: (1) a law enforcement officer, a firefighter, a paramedic, or another emergency rescuer finding the individual; and (2) if another source of the information is not immediately available, a hospital, as soon as practical after the individual's arrival at the hospital. (b) If a document of gift or a refusal to make an anatomical gift is located by the search required by (a)(1) of this section and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or refusal to the hospital. (c) Except as provided by AS 13.52.080 and 13.52.090, a person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section but may be subject to administrative sanctions.
(a) A document of gift need not be delivered during the donor's lifetime to be effective. (b) On or after an individual's death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to whom the gift could pass under AS 13.52.207.
(a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the department and a donor registry. (b) A procurement organization shall be allowed reasonable access to information in the records of the department to ascertain whether an individual at or near death is a donor. (c) Except as provided by AS 13.52.253, when a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. Except as provided by AS 13.52.055 or 13.52.253, during the examination period, measures necessary to ensure the medical suitability of the part may not be withheld or withdrawn, unless the hospital or procurement organization knows that the individual expressed a contrary intent. (d) Unless prohibited by law other than AS 13.52.173 - 13.52.268, at any time after a donor's death, the person to whom a part passes under AS 13.52.207 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose. (e) Unless prohibited by law other than AS 13.52.173 - 13.52.268, an examination under (c) or (d) of this section may include an examination of all medical and dental records of the donor or prospective donor. (f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal. (g) Upon referral by a hospital under (a) of this section, a procurement organization shall make a reasonable search for any person listed in AS 13.52.197 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information. (h) Subject to AS 13.52.207(i) and 13.52.257, the rights of the person to whom a part passes under AS 13.52.207 are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and AS 13.52.173 - 13.52.268, a person who accepts an anatomical gift of an entire body may allow embalming, burial, or cremation, and use of remains in a funeral service. If the gift is of a part, the person to whom the part passes under AS 13.52.207, on the death of the donor and before embalming, burial, or cremation, shall cause the part to be removed without unnecessary mutilation. (i) The physician who attends the decedent at death and the physician who determines the time of the decedent's death may not participate in the procedures for removing or transplanting a part from the decedent. (j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.
A hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.
(a) Except as otherwise provided in (b) of this section, a person who, for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual's death commits a class C felony. (b) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a part.
(a) Except as provided by AS 13.52.080 and 13.52.090, a person who acts under AS 13.52.173 - 13.52.268 or with the applicable anatomical gift law of another state, or attempts in good faith to act under AS 13.52.173 - 13.52.268 or with the applicable anatomical gift law of another state, is not liable for the act in a civil action, a criminal prosecution, or an administrative proceeding. (b) Except as provided by AS 13.52.080 and 13.52.090, a person making an anatomical gift and the donor's estate are not liable for any injury or damage that results from the making or use of the gift. (c) In determining whether an anatomical gift has been made, amended, or revoked under AS 13.52.173 - 13.52.268, a person may rely on representations of an individual listed in AS 13.52.197(a)(2) - (8) relating to the individual's relationship to the donor or prospective donor unless the person knows that the representation is untrue.
(a) Notwithstanding AS 13.52.010(k), a document of gift is valid if executed under (1) AS 13.52.173 - 13.52.268; (2) the laws of the state or country where it was executed; or (3) the laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed. (b) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift. (c) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.
Except as provided by AS 13.52.055, if a prospective donor has an advance health care directive, and the terms of the directive and the express terms of a potential anatomical gift are in conflict with regard to the administration of measures necessary to ensure the medical suitability of a part for transplantation or therapy, the prospective donor's attending physician and prospective donor shall confer to resolve the conflict. If the prospective donor is incapable of resolving the conflict, an agent acting under the prospective donor's declaration or directive, or, if none or the agent is not reasonably available, another person authorized by law other than AS 13.52.173 - 13.52.268 to make health care decisions on behalf of the prospective donor, shall act for the donor to resolve the conflict. The conflict shall be resolved as expeditiously as possible. Information relevant to the resolution of the conflict may be obtained from the appropriate procurement organization and any other person authorized to make an anatomical gift for the prospective donor under AS 13.52.173 - 13.52.268. Before resolution of the conflict, measures necessary to ensure the medical suitability of the part may not be withheld or withdrawn from the prospective donor unless withholding or withdrawing the measures conflicts with appropriate end-of-life care.
(a) A coroner and a state medical examiner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education. (b) If a coroner or a state medical examiner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the coroner or state medical examiner and a postmortem examination is going to be performed, unless the coroner or state medical examiner denies recovery under AS 13.52.257, the coroner, the state medical examiner, or a designee shall conduct a postmortem examination of the body or the part in a manner and within a period compatible with its preservation for the purposes of the gift. (c) A part may not be removed from the body of a decedent under the jurisdiction of a coroner or a state medical examiner for transplantation, therapy, research, or education unless the part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the coroner or state medical examiner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection does not preclude a coroner or the state medical examiner from performing the medicolegal investigation on the body or parts of a decedent under the jurisdiction of the coroner or state medical examiner.
(a) On request of a procurement organization, a coroner or the state medical examiner may release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is under the jurisdiction of the coroner or state medical examiner. If the decedent's body or part is medically suitable for transplantation, therapy, research, or education, the coroner or state medical examiner shall release postmortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the postmortem examination results or other information received from the coroner or state medical examiner only if relevant to transplantation or therapy. (b) The coroner or state medical examiner may conduct a medicolegal examination by reviewing all medical records, laboratory test results, x-rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the coroner or state medical examiner that the coroner or state medical examiner determines may be relevant to the investigation. (c) A person who has any information requested by a coroner or the state medical examiner under (b) of this section shall provide that information as expeditiously as possible to allow the coroner or state medical examiner to conduct the medicolegal investigation within a period compatible with the preservation of parts for the purpose of transplantation, therapy, research, or education. (d) If an anatomical gift has been or might be made of a part of a decedent whose body is under the jurisdiction of the coroner or state medical examiner and a postmortem examination is not required, or the coroner or state medical examiner determines that a postmortem examination is required but that the recovery of the part that is the subject of an anatomical gift will not interfere with the examination, the coroner or state medical examiner and the procurement organization shall cooperate in the timely removal of the part from the decedent for the purpose of transplantation, therapy, research, or education. (e) If an anatomical gift of a part from the decedent under the jurisdiction of the coroner or state medical examiner has been or might be made, but the coroner or state medical examiner initially believes that the recovery of the part could interfere with the postmortem investigation into the decedent's cause or manner of death, the coroner or state medical examiner may consult with the procurement organization, or the physician or technician designated by the procurement organization, about the proposed recovery. After consultation, the coroner or state medical examiner may allow the recovery. (f) If the coroner, the state medical examiner, or a designee denies recovery of a part, the coroner, state medical examiner, or designee shall (1) explain in a record the specific reasons for not allowing recovery of the part; (2) include the specific reasons in the records of the coroner or state medical examiner; and (3) provide a record with the specific reasons to the procurement organization. (g) If the coroner, the state medical examiner, or a designee allows recovery of a part under (d) or (e) of this section, the procurement organization, on request, shall cause the physician or technician who removes the part to provide the coroner or state medical examiner with a record describing the condition of the part, a biopsy, a photograph, and any other information and observations that would assist in the postmortem examination. (h) If a coroner, state medical examiner, or designee elects to be present at a removal procedure, on request, the procurement organization requesting the recovery of the part shall reimburse the coroner, state medical examiner, or designee for the additional costs incurred in complying with this section.
AS 13.52.173 - 13.52.267 modify, limit, and supersede 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), except that AS 13.52.173 - 13.52.267 do not modify, limit or supersede 15 U.S.C. 7001, or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).
In applying and construing AS 13.52.173 - 13.52.263, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Notwithstanding AS 13.52.390, in AS 13.52.173 - 13.52.268, (1) adult means an individual who is at least 18 years of age; (2) decedent means a deceased individual whose body or part is or may be the source of an anatomical gift; the term includes a stillborn infant and, subject to restrictions imposed by law other than AS 13.52.173 - 13.52.268, a fetus; (3) department means the Department of Administration; (4) disinterested witness means a witness who is not (A) the spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift; (B) an adult who exhibited special care and concern for the individual; or (C) a person to whom an anatomical gift could pass under AS 13.52.207; (5) document of gift means a donor card or other record used to make an anatomical gift, and includes a statement or symbol on a driver's license, an identification card, or a donor registry; (6) donor means an individual whose body or part is the subject of an anatomical gift; (7) donor registry means the donor registry created under AS 13.50.110; (8) driver's license means a license or permit issued by the department under AS 28.15 to operate a vehicle, whether or not conditions are attached to the license or permit; (9) eye bank means a person who is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes; (10) guardian means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual; the term does not include a guardian ad litem; (11) hospital means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state; (12) identification card means an identification card issued by the Department of Administration under AS 18.65.310; (13) know means to have actual knowledge; (14) minor means an individual who is under 18 years of age; (15) organ procurement organization means a person designated by the United States Secretary of Health and Human Services as an organ procurement organization; (16) parent means a parent whose parental rights have not been terminated; (17) person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity; (18) physician means an individual authorized to practice medicine or osteopathy under the law of any state; (19) procurement organization means an eye bank, an organ procurement organization, or a tissue bank; (20) prospective donor means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education; the term does not include an individual who has made a refusal; (21) reasonably available means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift; (22) recipient means an individual into whose body a decedent's part has been or is intended to be transplanted; (23) record means information that is inscribed on a tangible medium or that is stored in an electronic or another medium and is retrievable in perceivable form; (24) refusal means a record created under AS 13.52.187 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part; (25) sign means, with the present intent to authenticate or adopt a record, (A) to execute or adopt a tangible symbol; or (B) to attach to or logically associate with the record an electronic symbol, sound, or process; (26) state means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; (27) state medical examiner means the state medical examiner appointed under AS 12.65.015(a); (28) technician means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law; the term includes an enucleator; (29) tissue means a portion of the human body other than an organ or an eye; the term does not include blood unless the blood is donated for the purpose of research or education; (30) tissue bank means a person who is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue; (31) transplant hospital means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.
In the case of mental illness, nothing in this chapter may be construed to override or undermine the validity of a properly executed durable power of attorney for health care.
If a provision of this chapter, or the application of this chapter to a person or circumstance is held invalid, including being held unconstitutional, the invalidity does not affect the other provisions or applications of this chapter that can be given effect without the invalid provision or application.
The following sample form may be used to create an advance health care directive. The other sections of this chapter govern the effect of this or any other writing used to create an advance health care directive. This form may be duplicated. This form may be modified to suit the needs of the person, or a different form that complies with this chapter may be used, including the mandatory witnessing requirements:ADVANCE HEALTH CARE DIRECTIVE ExplanationYou have the right to give instructions about your own health care to the extent allowed by law. You also have the right to name someone else to make health care decisions for you to the extent allowed by law. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your health care provider. If you use this form, you may complete or modify all or any part of it. You are free to use a different form if the form complies with the requirements of AS 13.52.Part 1 of this form is a durable power of attorney for health care. A durable power of attorney for health care means the designation of an agent to make health care decisions for you. Part 1 lets you name another individual as an agent to make health care decisions for you if you do not have the capacity to make your own decisions or if you want someone else to make those decisions for you now even though you still have the capacity to make those decisions. You may name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a health care institution where you are receiving care.Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you that you could legally make for yourself. This form has a place for you to limit the authority of your agent. You do not have to limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right, to the extent allowed by law, to(a) consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition, including the administration or discontinuation of psychotropic medication;(b) select or discharge health care providers and institutions;(c) approve or disapprove proposed diagnostic tests, surgical procedures, and programs of medication;(d) direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care; and(e) make an anatomical gift following your death.Part 2 of this form lets you give specific instructions for any aspect of your health care to the extent allowed by law, except you may not authorize mercy killing, assisted suicide, or euthanasia. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief medication. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.Part 3 of this form lets you express an intention to make an anatomical gift following your death.Part 4 of this form lets you make decisions in advance about certain types of mental health treatment.Part 5 of this form lets you designate a physician to have primary responsibility for your health care.After completing this form, sign and date the form at the end and have the form witnessed by one of the two alternative methods listed below. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as your agent to make sure that the person understands your wishes and is willing to take the responsibility.You have the right to revoke this advance health care directive or replace this form at any time, except that you may not revoke this declaration when you are determined not to be competent by a court, by two physicians, at least one of whom shall be a psychiatrist, or by both a physician and a professional mental health clinician. In this advance health care directive, competent means that you have the capacity(1) to assimilate relevant facts and to appreciate and understand your situation with regard to those facts; and(2) to participate in treatment decisions by means of a rational thought process.PART 1DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS(1) DESIGNATION OF AGENT. I designate the following individual as my agent to make health care decisions for me: ___________________(name of individual you choose as agent) ___________________(address) (city) (state) (zip code)___________________(home telephone) (work telephone)OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a health care decision for me, I designate as my first alternate agent___________________(name of individual you choose as first alternate agent)___________________(address) (city) (state) (zip code)___________________(home telephone) (work telephone)OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health care decision for me, I designate as my second alternate agent___________________(name of individual you choose as second alternate agent)___________________(address) (city) (state) (zip code)___________________(home telephone) (work telephone) (2) AGENT'S AUTHORITY. My agent is authorized and directed to follow my individual instructions and my other wishes to the extent known to the agent in making all health care decisions for me. If these are not known, my agent is authorized to make these decisions in accordance with my best interest, including decisions to provide, withhold, or withdraw artificial hydration and nutrition and other forms of health care to keep me alive, except as I state here:_________________________________________________________(Add additional sheets if needed.)Under this authority, best interest means that the benefits to you resulting from a treatment outweigh the burdens to you resulting from that treatment after assessing(A) the effect of the treatment on your physical, emotional, and cognitive functions;(B) the degree of physical pain or discomfort caused to you by the treatment or the withholding or withdrawal of the treatment;(C) the degree to which your medical condition, the treatment, or the withholding or withdrawal of treatment, results in a severe and continuing impairment;(D) the effect of the treatment on your life expectancy;(E) your prognosis for recovery, with and without the treatment;(F) the risks, side effects, and benefits of the treatment or the withholding of treatment; and(G) your religious beliefs and basic values, to the extent that these may assist in determining benefits and burdens.(3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE. Except in the case of mental illness, my agent's authority becomes effective when my primary physician determines that I am unable to make my own health care decisions unless I mark the following box. In the case of mental illness, unless I mark the following box, my agent's authority becomes effective when a court determines I am unable to make my own decisions, or, in an emergency, if my primary physician or another health care provider determines I am unable to make my own decisions. If I mark this box [ ], my agent's authority to make health care decisions for me takes effect immediately.(4) AGENT'S OBLIGATION. My agent shall make health care decisions for me in accordance with this durable power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.(5) NOMINATION OF GUARDIAN. If a guardian of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named under (1) above, in the order designated.PART 2INSTRUCTIONS FOR HEALTH CAREIf you are satisfied to allow your agent to determine what is best for you in making health care decisions, you do not need to fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want. There is a state protocol that governs the use of do not resuscitate orders by physicians, advanced practice registered nurses, physician assistants, and other health care providers. You may obtain a copy of the protocol from the Alaska Department of Health. A do not resuscitate order means a directive from a licensed physician, advanced practice registered nurse, physician assistant that emergency cardiopulmonary resuscitation should not be administered to you.(6) END-OF-LIFE DECISIONS. Except to the extent prohibited by law, I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: (Check only one box.)(A) [ ] Choice To Prolong LifeI want my life to be prolonged as long as possible within the limits of generally accepted health care standards; OR(B) [ ] Choice Not To Prolong LifeI want comfort care only and I do not want my life to be prolonged with medical treatment if, in the judgment of my physician, I have (check all choices that represent your wishes)[ ] (i) a condition of permanent unconsciousness: a condition that, to a high degree of medical certainty, will last permanently without improvement; in which, to a high degree of medical certainty, thought, sensation, purposeful action, social interaction, and awareness of myself and the environment are absent; and for which, to a high degree of medical certainty, initiating or continuing life-sustaining procedures for me, in light of my medical outcome, will provide only minimal medical benefit for me; or[ ] (ii) a terminal condition: an incurable or irreversible illness or injury that without the administration of life-sustaining procedures will result in my death in a short period of time, for which there is no reasonable prospect of cure or recovery, that imposes severe pain or otherwise imposes an inhumane burden on me, and for which, in light of my medical condition, initiating or continuing life-sustaining procedures will provide only minimal medical benefit;[ ] Additional instructions: ______________________________________(C) Artificial Nutrition and Hydration. If I am unable to safely take nutrition, fluids, or nutrition and fluids (check your choices or write your instructions),[ ] I wish to receive artificial nutrition and hydration indefinitely;[ ] I wish to receive artificial nutrition and hydration indefinitely, unless it clearly increases my suffering and is no longer in my best interest;[ ] I wish to receive artificial nutrition and hydration on a limited trial basis to see if I can improve;[ ] In accordance with my choices in (6)(B) above, I do not wish to receive artificial nutrition and hydration.[ ] Other instructions: ______________________________________(D) Relief from Pain.[ ] I direct that adequate treatment be provided at all times for the sole purpose of the alleviation of pain or discomfort; or[ ] I give these instructions: ______________________________________(E) Should I become unconscious and I am pregnant, I direct that _________________________________________________________(7) OTHER WISHES. (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that ______________________________________Conditions or limitations: ______________________________________ .(Add additional sheets if needed.)PART 3ANATOMICAL GIFT AT DEATH (OPTIONAL) If you are satisfied to allow your agent to determine whether to make an anatomical gift at your death, you do not need to fill out this part of the form.(8) Upon my death: (mark applicable box)(A) [ ] I give any needed organs, tissues, or other body parts, OR(B) [ ] I give the following organs, tissues, or other body parts only ______________________________________(C) [ ] My gift is for the following purposes (mark any of the following you want):[ ] (i) transplant;[ ] (ii) therapy;[ ] (iii) research;[ ] (iv) education.(D) [ ] I refuse to make an anatomical gift.PART 4MENTAL HEALTH TREATMENTThis part of the declaration allows you to make decisions in advance about mental health treatment. The instructions that you include in this declaration will be followed only if a court, two physicians that include a psychiatrist, or a physician and a professional mental health clinician believe that you are not competent and cannot make treatment decisions. Otherwise, you will be considered to be competent and to have the capacity to give or withhold consent for the treatments.If you are satisfied to allow your agent to determine what is best for you in making these mental health decisions, you do not need to fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.(9) PSYCHOTROPIC MEDICATIONS. If I do not have the capacity to give or withhold informed consent for mental health treatment, my wishes regarding psychotropic medications are as follows:__________ I consent to the administration of the following medications: _____________________________ I do not consent to the administration of the following medications: ___________________Conditions or limitations: ______________________________________ .(10) ELECTROCONVULSIVE TREATMENT. If I do not have the capacity to give or withhold informed consent for mental health treatment, my wishes regarding electroconvulsive treatment are as follows:__________ I consent to the administration of electroconvulsive treatment.__________ I do not consent to the administration of electroconvulsive treatment.Conditions or limitations: ______________________________________ .(11) ADMISSION TO AND RETENTION IN FACILITY. If I do not have the capacity to give or withhold informed consent for mental health treatment, my wishes regarding admission to and retention in a mental health facility for mental health treatment are as follows:__________ I consent to being admitted to a mental health facility for mental health treatment for up to __________ days. (The number of days not to exceed 17.)__________ I do not consent to being admitted to a mental health facility for mental health treatment.Conditions or limitations: ______________________________________ .OTHER WISHES OR INSTRUCTIONS_________________________________________________________Conditions or limitations: ______________________________________ .PART 5PRIMARY PHYSICIAN (OPTIONAL)(12) I designate the following physician as my primary physician: ___________________(name of physician) ___________________(address) (city) (state) (zip code)___________________(telephone)OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician:___________________(name of physician)___________________(address) (city) (state) (zip code)___________________(telephone)(13) EFFECT OF COPY. A copy of this form has the same effect as the original.(14) SIGNATURES. Sign and date the form here: ___________________(date) (sign your name) ___________________(print your name) ___________________(address) (city) (state) (zip code)(15) WITNESSES. This advance care health directive will not be valid for making health care decisions unless it is(A) signed by two qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; the witnesses may not be a health care provider employed at the health care institution or health care facility where you are receiving health care, an employee of the health care provider who is providing health care to you, an employee of the health care institution or health care facility where you are receiving health care, or the person appointed as your agent by this document; at least one of the two witnesses may not be related to you by blood, marriage, or adoption or entitled to a portion of your estate upon your death under your will or codicil; or(B) acknowledged before a notary public in the state.ALTERNATIVE NO. 1Witness Who is Not Related to or a Devisee of the PrincipalI swear under penalty of perjury under AS 11.56.200 that the principal is personally known to me, that the principal signed or acknowledged this durable power of attorney for health care in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, and that I am not(1) a health care provider employed at the health care institution or health care facility where the principal is receiving health care;(2) an employee of the health care provider providing health care to the principal;(3) an employee of the health care institution or health care facility where the principal is receiving health care;(4) the person appointed as agent by this document;(5) related to the principal by blood, marriage, or adoption; or(6) entitled to a portion of the principal's estate upon the principal's death under a will or codicil. ___________________(date) (signature of witness) ___________________(printed name of witness)___________________(address) (city) (state) (zip code)Witness Who May be Related to or a Devisee of the PrincipalI swear under penalty of perjury under AS 11.56.200 that the principal is personally known to me, that the principal signed or acknowledged this durable power of attorney for health care in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, and that I am not(1) a health care provider employed at the health care institution or health care facility where the principal is receiving health care;(2) an employee of the health care provider who is providing health care to the principal;(3) an employee of the health care institution or health care facility where the principal is receiving health care; or(4) the person appointed as agent by this document. ___________________(date) (signature of witness)___________________(printed name of witness)___________________(address) (city) (state) (zip code)ALTERNATIVE NO. 2State of Alaska__________________________________ Judicial DistrictOn this __________ day of __________________________________, in the year __________, before me, _____________________________________________________ (insert name of notary public) appeared __________________________________ , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that the person executed it. Notary Seal (signature of notary public)
In this chapter, unless the context otherwise requires, (1) advance health care directive means an individual instruction or a durable power of attorney for health care; (2) advanced practice registered nurse has the meaning given in AS 08.68.850; (3) agent means an individual designated in a durable power of attorney for health care to make a health care decision for the individual granting the power; (4) anatomical gift means a donation of all or a part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education; (5) artificial nutrition and hydration means medically appropriate nutrition and hydration delivered (A) through an intravenous needle placed directly in a vein; or (B) by a tube that is inserted into a functioning gastrointestinal tract; (6) available means, when referring to a person, that the (A) person's existence is known; (B) person can be contacted; (C) person does not lack capacity; (D) person does not refuse to accept the position; and (E) person is willing to make a health care decision; (7) best interest means that the benefits to the individual resulting from a treatment outweigh the burdens to the individual resulting from that treatment after assessing (A) the effect of the treatment on the physical, emotional, and cognitive functions of the patient; (B) the degree of physical pain or discomfort caused to the individual by the treatment or the withholding or withdrawal of the treatment; (C) the degree to which the individual's medical condition, the treatment, or the withholding or withdrawal of treatment results in a severe and continuing impairment; (D) the effect of the treatment on the life expectancy of the patient; (E) the prognosis of the patient for recovery, with and without the treatment; (F) the risks, side effects, and benefits of the treatment or the withholding of treatment; and (G) the religious beliefs and basic values of the individual receiving treatment, to the extent that these may assist the decision-maker to determine benefits and burdens; (8) capacity, except in (10) of this section, means an individual's ability to receive and evaluate information effectively and to make and effectively communicate health care decisions; (9) cardiopulmonary resuscitation means an attempt to restore spontaneous circulation; (10) competent means that an individual has the capacity (A) to assimilate relevant facts and to appreciate and understand the individual's situation with regard to those facts; and (B) to participate in treatment decisions by means of a rational thought process; (11) department means the Department of Health; (12) do not resuscitate identification means an identification card, form, necklace, or bracelet that carries the standardized design or symbol developed by the department under AS 13.52.065 to signify, when carried or worn, that the carrier or wearer is an individual for whom a physician has issued a do not resuscitate order; (13) do not resuscitate order means a directive from a licensed physician, advanced practice registered nurse, or physician assistant that emergency cardiopulmonary resuscitation should not be administered to a qualified patient; (14) durable power of attorney for health care means a power of attorney that remains in effect when the principal lacks capacity; in this paragraph, power of attorney means the designation of an agent to make health care decisions for the individual granting the power; (15) generally accepted health care standards includes the protocol for do not resuscitate orders that is adopted under AS 13.52.065; (16) guardian means a judicially appointed person having authority to make a health care decision for an individual; (17) health care means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition; (18) health care decision means a decision made by an individual or the individual's agent, guardian, or surrogate regarding the individual's health care, including (A) selection and discharge of health care providers and institutions; (B) approval or disapproval of proposed diagnostic tests, surgical procedures, and programs of medication; (C) direction to provide, withhold, or withdraw artificial nutrition and hydration if providing, withholding, or withdrawing artificial nutrition, artificial hydration, or artificial nutrition and hydration is in accord with generally accepted health care standards applicable to health care providers or institutions; (D) the administration or withdrawal of psychotropic medications, the use of electroconvulsive treatment, and the admission to a mental health facility; and (E) making an anatomical gift at death; (19) health care facility means a nursing home, a rehabilitation center, a long-term care facility, and any other health care institution that administers health care and that provides overnight stays in the ordinary course of the facility's business; (20) health care institution means an institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business; (21) health care provider means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession; (22) hospital means a facility (A) licensed, accredited, or approved as a hospital under the laws of this state; or (B) operated as a hospital by the United States government, this state, or a subdivision of this state; (23) individual instruction means an individual's direction concerning a health care decision for the individual; (24) life-sustaining procedures means any medical treatment, procedure, or intervention that, in the judgment of the primary physician, advanced practice registered nurse, or physician assistant, when applied to a patient with a qualifying condition, would not be effective to remove the qualifying condition, would serve only to prolong the dying process, or, when administered to a patient with a condition of permanent unconsciousness, may keep the patient alive but is not expected to restore consciousness; in this paragraph, medical treatment, procedure, or intervention includes assisted ventilation, renal dialysis, surgical procedures, blood transfusions, and the administration of drugs, including antibiotics, or artificial nutrition and hydration; (25) mental health facility has the meaning given to designated treatment facility in AS 47.30.915; (26) mental health treatment means electroconvulsive treatment, treatment with psychotropic medication, or admission to and retention in a health care institution for mental health treatment; (27) part means an organ, tissue, or an eye of a human being, except fetal tissue; the term does not include the whole body; (28) permanent unconsciousness means a condition (A) that, to a high degree of medical certainty, will last permanently without improvement; (B) in which, to a high degree of medical certainty, thought, sensation, purposeful action, social interaction, and awareness of self and the environment are absent; and (C) for which, to a high degree of medical certainty, initiating or continuing life-sustaining procedures, in light of the patient's medical outcome, provides only minimal medical benefit; (29) person means an individual, corporation, business trust, estate, trust, partnership, joint venture, association, government, governmental subdivision, governmental agency, or another legal or commercial entity; (30) physician or surgeon means an individual licensed or otherwise authorized to practice medicine and surgery or osteopathy and surgery under the laws of any state; (31) physician assistant means an individual licensed under AS 08.64.107. (32) primary physician means a physician designated by an individual, or by the individual's agent, guardian, or surrogate, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility; (33) qualified patient means a patient with a qualifying condition who is eligible for do not resuscitate identification; (34) qualifying condition means a terminal condition or permanent unconsciousness in a patient; (35) reasonably available means available using a level of diligence appropriate to the seriousness and urgency of an individual's health care needs; (36) state means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico; (37) supervising health care provider means the primary physician or the physician's designee, or the health care provider or the provider's designee who has undertaken primary responsibility for an individual's health care; (38) surrogate means an individual, other than a patient's agent or guardian, authorized under this chapter to make a health care decision for the patient; (39) terminal condition means an incurable or irreversible illness or injury (A) that without administration of life-sustaining procedures will result in death in a short period of time; (B) for which there is no reasonable prospect of cure or recovery; (C) that imposes severe pain or otherwise imposes an inhumane burden on the patient; and (D) for which, in light of the patient's medical condition, initiating or continuing life-sustaining procedures will provide only minimal medical benefit.
This chapter may be cited as the Health Care Decisions Act.
(a) An individual who is 18 years of age or older or an emancipated minor, a parent or legal guardian of a minor, or an individual's guardian or other person appointed by the individual or a court to manage the individual's health care may execute a voluntary nonopioid directive stating that an opioid may not be administered or prescribed to the individual or the minor. The directive must be in a format prescribed by the department and available in an electronic format. (b) The commissioner of health shall adopt regulations to implement this chapter. The regulations must (1) include verification by a health care provider and comply with the written consent requirements under 42 U.S.C. 290dd-2(b); (2) provide standard procedures for an individual, a parent or legal guardian of a minor, or an individual's guardian or other person appointed by the individual or a court to manage the individual's health care to submit a voluntary nonopioid directive to a health care provider or hospital; (3) include appropriate exemptions for emergency medical personnel; (4) ensure the confidentiality of a voluntary nonopioid directive; (5) ensure exemptions for an opioid used for treatment of substance abuse or opioid dependence. (c) An individual who is 18 years of age or older or an emancipated minor, a parent or legal guardian of a minor, or an individual's guardian or other person appointed by the individual or a court to manage the individual's health care may revoke a voluntary nonopioid directive at any time in writing or orally. (d) An individual, a parent or legal guardian of a minor, or an individual's guardian or other person appointed by the individual or a court to manage the individual's health care may submit a voluntary nonopioid directive to a health care provider or a hospital.
A health care provider, a hospital, or an employee of a health care provider or hospital may not be subject to disciplinary action by the health care provider's or the employee's professional licensing board or held civilly or criminally liable for failure to administer, prescribe, or dispense an opioid, or for inadvertent administration of an opioid, to an individual or a minor who has a voluntary nonopioid directive.
A prescription presented to a pharmacy is presumed to be valid, and a pharmacist may not be subject to disciplinary action by the pharmacist's professional licensing board or held civilly or criminally liable for dispensing an opioid in contradiction to an individual's or a minor's voluntary nonopioid directive.
Nothing in this chapter shall be construed to (1) alter an advance health care directive under AS 13.52 (Health Care Decisions Act); (2) limit the prescribing, dispensing, or administering of an opioid overdose drug; (3) limit an authorized health care provider or pharmacist from prescribing, dispensing, or administering an opioid for the treatment of substance abuse or opioid dependence.
In this chapter, unless the context otherwise requires, (1) department means the Department of Health; (2) emancipated minor means a minor whose disabilities have been removed for general purposes under AS 09.55.590; (3) health care provider has the meaning given in AS 09.65.340; (4) hospital has the meaning given in AS 13.52.268; (5) minor means an individual under 18 years of age who is not an emancipated minor; (6) opioid includes the opium and opiate substances and opium and opiate derivatives listed in AS 11.71.140 and 11.71.160; (7) opioid overdose drug has the meaning given in AS 09.65.340.
This chapter may be known as the Voluntary Nonopioid Directive Act.
(a) Except as provided in (b) and (c) of this section, an adult may enter into a supported decision-making agreement. A supported decision-making agreement allows an adult to receive decision-making assistance with the adult's affairs from one or more other adults. (b) The adult wanting to receive decision-making assistance may not enter into a supported decision-making agreement unless the adult (1) enters into the agreement voluntarily and without coercion or undue influence; and (2) understands the nature and effect of the agreement. (c) An adult may not enter into a supported decision-making agreement under this section if the agreement encroaches on the authority of a guardian or conservator of the adult, unless the guardian or conservator approves in writing the adult entering into the supported decision-making agreement.
A supporter must be an adult, but may not be (1) an employer or employee of the principal, unless the employer or employee is an immediate family member of the principal; (2) a person who provides paid support services, except decision-making assistance, directly to the principal, unless the person is an immediate family member of the principal; or (3) a person against whom a protective order or restraining order has been entered by a court on request of or on behalf of the principal.
(a) A supported decision-making agreement must (1) name one or more adults to provide a principal with decision-making assistance; and (2) describe the decision-making assistance that each supporter may provide the principal. (b) A supported decision-making agreement must contain a notice to third parties that summarizes the rights and obligations of the supporter under this chapter and expressly identifies this chapter. (c) A supported decision-making agreement may (1) name an alternate supporter to act in the place of a supporter and the circumstances under which the alternate supporter may act; (2) authorize a supporter to share information with another supporter named in the agreement, including an alternate supporter.
A supported decision-making agreement is valid if (1) the agreement is dated and in writing; (2) the agreement satisfies the requirements of AS 13.56.010 - 13.56.050; (3) the agreement has been signed by the principal and each named supporter, including any alternate supporter, and the (A) signing takes place in the presence of two witnesses who also sign the agreement; or (B) signatures of the principal and each named supporter, including any alternate supporter, are notarized; and (4) when the principal has a guardian or conservator, the principal has notified the guardian or conservator of the agreement.
A supported decision-making agreement must contain a separate declaration by each supporter that states the supporter's relationship with the principal, states the willingness of the supporter to act as a supporter for the principal, and indicates that the supporter acknowledges the duties of a supporter under this chapter. Each declaration must be signed by the supporter making the declaration.
(a) Each witness under AS 13.56.040 must be an adult who understands the means of communication used by the principal, except, if there is an individual who understands the principal's means of communication present to assist during the execution of the supported decision-making agreement, the witnesses are not required to understand the means of communication used by the principal. (b) A witness under AS 13.56.040 may not be a supporter named in the supported decision-making agreement or an employee or agent of a supporter named in the supported decision-making agreement.
A supported decision-making agreement may indicate the date it becomes effective and its duration. If the supported decision-making agreement does not indicate the date it becomes effective, the supported decision-making agreement becomes effective immediately. If a supported decision-making agreement does not indicate its duration, the supported decision-making agreement remains effective until terminated under AS 13.56.080.
(a) A principal may at any time terminate all or a portion of a supported decision-making agreement. A supporter may at any time terminate all or a portion of the supporter's obligations under a supported decision-making agreement, including the declaration of support described in AS 13.56.050. (b) A termination under (a) of this section must be in writing and signed, and (1) the signing must take place in the presence of two witnesses who also sign the termination; or (2) the signature must be notarized. (c) A principal or supporter terminating all or a portion of a supported decision-making agreement shall notify, in person, by certified mail, or by electronic means, the other party to the agreement that the agreement has been terminated. (d) If a portion of a supported decision-making agreement is terminated under this section and the termination is consistent with this section, the remainder of the agreement remains in effect.
A supporter shall act with the care, competence, and diligence ordinarily exercised by individuals in similar circumstances.
(a) Except as limited by a supported decision-making agreement, a supporter may provide to a principal the following decision-making assistance about the principal's affairs: (1) assisting with making decisions, communicating decisions, and understanding information about, options for, the responsibilities of, and the consequences of decisions; (2) accessing, obtaining, and understanding information that is relevant to decisions necessary for the principal to manage the principal's affairs, including medical, psychological, financial, and educational information, medical treatment records, and other records; (3) ascertaining the wishes and decisions of the principal, assisting in communicating those wishes and decisions to other persons, and advocating to ensure the implementation of the principal's wishes and decisions; and (4) accompanying the principal and participating in discussions with other persons when the principal is making decisions or attempting to obtain information for decisions. (b) Under (a)(2) of this section, a supporter may use the principal's dated consent to assist the principal in obtaining protected health information under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) or educational records under 20 U.S.C. 1232g (Family Educational Rights and Privacy Act of 1974).
A supporter may not (1) exert undue influence on the principal; (2) make decisions for or on behalf of the principal; (3) sign for the principal or provide an electronic signature of the principal to a third party; (4) obtain, without the consent of the principal, information that is not reasonably related to matters with which the supporter may assist the principal under the supported decision-making agreement; or (5) use, without the consent of the principal, information acquired for a purpose authorized by this chapter for a purpose other than assisting the principal to make a decision under the supported decision-making agreement.
A supporter shall keep the information collected by the supporter on behalf of the principal under this chapter confidential, may not use the information for a use that is not authorized by the principal, shall protect the information from unauthorized access, use, or disclosure, and shall dispose of the information properly when appropriate.
A person shall recognize a decision or request made or communicated with the decision-making assistance of a supporter under this chapter as the decision or request of the principal for the purposes of a provision of law, and the principal or supporter may enforce the decision or request in law or equity on the same basis as a decision or request of the principal.
(a) A person who, in good faith, either acts in reliance on an authorization in a supported decision-making agreement or declines to honor an authorization in a supported decision-making agreement is not subject to civil or criminal liability or to discipline for unprofessional conduct for (1) complying with an authorization in a supported decision-making agreement, if the person is complying based on an assumption that the underlying supported decision-making agreement was valid when made and has not been terminated under AS 13.56.080; (2) declining to comply with an authorization in a supported decision-making agreement if the person is declining based on actual knowledge that the supported decision-making agreement is invalid or has been terminated under AS 13.56.080; (3) declining to comply with an authorization related to health care in a supported decision-making agreement, if the person is declining because the action proposed to be taken under the supported decision-making agreement is contrary to the good faith medical judgment of the person or to a written policy of a health care institution that is based on reasons of conscience. (b) In this section, good faith means honesty in fact and the observance of reasonable standards of fair dealing.
(a) In the application of this chapter, a decision that a principal is incapable of managing the principal's affairs may not be based on the manner in which the principal communicates with others. (b) An adult who enters into a supported decision-making agreement may act without the decision-making assistance of the supporter. (c) A person may not use the execution of a supported decision-making agreement as evidence that the principal does not have capacity. (d) In this chapter, a principal is considered to have capacity even if the capacity is achieved by the principal receiving decision-making assistance.
This chapter applies to decisions related to the following affairs of a principal: (1) monitoring health, obtaining, scheduling, implementing, and coordinating health and support services, understanding health care information and options, providing for care and comfort, and other health care and personal matters in which the principal makes decisions about the principal's health care; (2) managing income and assets and the use of income and assets for clothing, support, care, comfort, education, shelter, and payment of other liabilities of the principal; (3) handling personal, health care, and financial matters that arise in the course of daily living; (4) monitoring information about the principal's support services, including future necessary or recommended support services; (5) living arrangements, including where and with whom the principal wants to live; and (6) working arrangements, including where the principal wants to work.
The following are considered support services under this chapter: (1) house repair, home cleaning, laundry, shopping, and providing meals; (2) transportation, accompanying a principal, and facilitating a principal's written, oral, and electronic communication; (3) nurse visitations and attendant care; (4) provision of health care; (5) physical and psychosocial assessments; (6) financial assessments and advice on banking, taxes, loans, investments, and management of real property; (7) legal assessments and advice; (8) education and educational assessments and advice; (9) assistance with bathing, dressing, eating, range of motion, toileting, transferring, ambulation, and other direct assistance with the activities of daily living; (10) care planning; (11) services that assist in maintaining the independence of a principal.
A supported decision-making agreement must be in substantially the following form:STATUTORY FORM FORSUPPORTED DECISION MAKING AGREEMENT(1) INTRODUCTION. I, __________________________________, want to have one or more persons I trust help me make decisions, obtain and understand the information I need to make my decisions, and tell other people about my decisions. The people who will help me are my supporters.I can name three supporters in this form. If I want to have more than three supporters, I can use a form that is substantially similar to this form to enter into a supported decision-making agreement with the additional supporters.This is a written agreement between me (principal) and each of my supporters. I can say in this agreement what kind of help each of my supporters will give me. A SUPPORTER APPOINTED UNDER THIS AGREEMENT DOES NOT MAKE DECISIONS FOR ME.My supporters may share information with each other (select one of the following):Yes [ ] No [ ](2) SUPPORTERS. These are my supporters:SUPPORTER NO. 1Name: __________________________________Address: _____________________________________Telephone number:_____________________________________Electronic mail address: _____I want this supporter to help me with (mark any of the following you want):[ ] Making choices about food and clothing[ ] Making choices about where and with whom I live[ ] Making choices about my health and health care[ ] Making choices about how I spend my time[ ] Making choices about where I work[ ] Making choices about my support services[ ] Making choices about how I spend my money and how I save my money[ ] Making choices about legal matters[ ] Making choices about (list other areas the supporter will help you with):__________I do not want this supporter to help me with:__________SUPPORTER NO. 2Name: __________________________________Address: _____________________________________Telephone number:_____________________________________Electronic mail address: _____I want this supporter to help me with (mark any of the following you want):[ ] Making choices about food and clothing[ ] Making choices about where and with whom I live[ ] Making choices about my health and health care[ ] Making choices about how I spend my time[ ] Making choices about where I work[ ] Making choices about my support services[ ] Making choices about how I spend my money and how I save my money[ ] Making choices about legal matters[ ] Making choices about (list other areas the supporter will help you with):__________I do not want this supporter to help me with:__________SUPPORTER NO. 3Name: __________________________________Address: _____________________________________Telephone number:_____Electronic mail address: _____I want this supporter to help me with (mark any of the following you want):[ ] Making choices about food and clothing[ ] Making choices about where and with whom I live[ ] Making choices about my health and health care[ ] Making choices about how I spend my time[ ] Making choices about where I work[ ] Making choices about my support services[ ] Making choices about how I spend my money and how I save my money[ ] Making choices about legal matters[ ] Making choices about (list other areas the supporter will help you with):__________I do not want this supporter to help me with:__________ALTERNATE SUPPORTER. If one of my supporters dies, becomes unable to act as my supporter, refuses to act as my supporter, or terminates the supporter's part of this agreement, I want the following person to become my supporter and help me with the areas the original supporter was helping me with:Name: __________________________________Address: _____________________________________Telephone number:_____________________________________Electronic mail address: _____(3) INFORMATION ACCESS FORMS. I am attaching to this agreement (mark yes or no for each choice below):A form that lets my supporter(s) obtain my health information under the Health Insurance Portability and Accountability ActYes [ ] No [ ]A form that lets my supporter(s) see my educational records under the Family Educational Rights and Privacy Act of 1974Yes [ ] No [ ](4) GUARDIANS AND CONSERVATORS. If I have a guardian or conservator, I must notify the guardian or conservator about this agreement. If this agreement encroaches on the authority of that guardian or conservator, the guardian or conservator must approve this agreement in writing.[ ] I have a guardian, and I have notified the guardian about this agreement.[ ] I am attaching a signed statement by my guardian approving my use of this agreement.[ ] I have a conservator, and I have notified the conservator about this agreement.[ ] I am attaching a signed statement by my conservator approving my use of this agreement.(5) NOTICE TO THIRD PARTIES. This is a summary of the rights and obligations of a supporter under AS 13.56, the chapter that authorizes making this agreement. A supporter does not make decisions for the principal, but a supporter may provide a principal with help when making decisions, obtaining information for decisions, communicating decisions, and understanding the options, responsibilities, and consequences of decisions. A supporter may accompany the principal and participate in discussions with other persons. The principal sets out in this agreement the areas in which the supporter may help the principal with decisions.A third party must recognize a decision or request of the principal that is made or communicated with the assistance of a supporter as the decision or request of the principal (AS 13.56.130). The principal or supporter may enforce the decision or request in law or equity. A principal may act without the help of the supporter.(6) DURATION AND TERMINATION OF AGREEMENT. I can end all or part of this agreement at any time by giving notice to my supporter(s). My termination must be signed and notarized or witnessed like this agreement. This agreement starts __________ and will continue until the agreement is terminated by me or my supporter(s).(7) SIGNATURE OF PRINCIPAL. I know that I do not have to sign this agreement. I am entering into this agreement voluntarily and without coercion or undue influence. I understand the nature and effect of this agreement. I know that I can change this agreement at any time.Signature: _____________________________________________________Printed name: __________________________________Telephone number:_____________________________________Electronic mail address: _____Date: __________(8) SIGNATURES OF SUPPORTERS.Signature of Supporter No. 1Signature: _____________________________________________________Printed name: __________________________________Date: __________Signature of Supporter No. 2Signature: _____________________________________________________Printed name: __________________________________Date: __________Signature of Supporter No. 3Signature: _____________________________________________________Printed name: __________________________________Date: __________Signature of Alternate SupporterSignature: _____________________________________________________Printed name: __________________________________Date: __________(9) DECLARATIONS OF SUPPORTERS.DECLARATION OF SUPPORTER NO. 1. I, __________________________________, am the principal's _____. I am willing to act as the principal's supporter. I acknowledge my duties as a supporter under AS 13.56.I understand that my job as a supporter is to help the principal make decisions, obtain and understand information for decisions, communicate decisions, and understand the options, responsibilities, and consequences of decisions. My support may include giving the principal information in a way that the principal can understand, discussing pros and cons of decisions, and helping the principal communicate the principal's decisions.I will act with care, competence, and diligence. I know that I may not make decisions for the principal. I will not exert undue influence on the principal. I will not sign for the principal or provide an electronic signature of the principal to a third party. I will keep the principal's information confidential. I will not use information I receive under this agreement for a purpose other than as authorized by the principal for decision making, unless the principal consents to another use.Signature: _____________________________________________________Printed name: __________________________________Date: __________DECLARATION OF SUPPORTER NO. 2. I, __________________________________, am the principal's _____. I am willing to act as the principal's supporter. I acknowledge my duties as a supporter under AS 13.56.I understand that my job as a supporter is to help the principal make decisions, obtain and understand information for decisions, communicate decisions, and understand the options, responsibilities, and consequences of decisions. My support may include giving the principal information in a way that the principal can understand, discussing pros and cons of decisions, and helping the principal communicate the principal's decisions.I will act with care, competence, and diligence. I know that I may not make decisions for the principal. I will not exert undue influence on the principal. I will not sign for the principal or provide an electronic signature of the principal to a third party. I will keep the principal's information confidential. I will not use information I receive under this agreement for a purpose other than as authorized by the principal for decision making, unless the principal consents to another use.Signature: _____________________________________________________Printed name: __________________________________Date: __________DECLARATION OF SUPPORTER NO. 3. I, __________________________________, am the principal's _____. I am willing to act as the principal's supporter. I acknowledge my duties as a supporter under AS 13.56.I understand that my job as a supporter is to help the principal make decisions, obtain and understand information for decisions, communicate decisions, and understand the options, responsibilities, and consequences of decisions. My support may include giving the principal information in a way that the principal can understand, discussing pros and cons of decisions, and helping the principal communicate the principal's decisions.I will act with care, competence, and diligence. I know that I may not make decisions for the principal. I will not exert undue influence on the principal. I will not sign for the principal or provide an electronic signature of the principal to a third party. I will keep the principal's information confidential. I will not use information I receive under this agreement for a purpose other than as authorized by the principal for decision making, unless the principal consents to another use.Signature: _____________________________________________________Printed name: __________________________________Date: __________DECLARATION OF ALTERNATE SUPPORTER. I, __________________________________, am the principal's _____. I am willing to act as the principal's supporter in the place of another supporter. I acknowledge the duties as a supporter under AS 13.56.I understand that my job as a supporter would be to help the principal make decisions, obtain and understand information for decisions, communicate decisions, and understand the options, responsibilities, and consequences of decisions. My support may include giving the principal information in a way that the principal can understand, discussing pros and cons of decisions, and helping the principal communicate the principal's decisions.I will act with care, competence, and diligence. I know that I may not make decisions for the principal. I will not exert undue influence on the principal. I will not sign for the principal or provide an electronic signature of the principal to a third party. I will keep the principal's information confidential. I will not use information I receive under this agreement for a purpose other than as authorized by the principal for decision making, unless the principal consents to another use.Signature: _____________________________________________________Printed name: __________________________________Date: __________(10) NOTARIZATION OR WITNESSING. The signatures on this agreement must be either (1) notarized, or (2) witnessed by two witnesses.NOTARIZATIONState of _______________________________________ Judicial DistrictOn this _________ day of _________, in the year _____, before me, __________________________________, appeared __________________________________, and __________________________________, personally known to me to be the persons who executed this agreement, and each acknowledged to me that each executed the agreement as the person's free and voluntary act and deed for the uses and purposes under this agreement.Witness my hand and official seal the day and year written above._____________________________________________________(Signature of notary public)(Seal, if any)_____(Title and rank)My commission expires: __________WITNESSINGIf the signatures are not notarized, two adults must witness the signatures of the principal, the supporter(s), and any alternate supporter, and all must sign together in the presence of the witnesses. A witness CANNOT be a supporter named in this agreement. The witnesses CANNOT be employees or agents of the supporter(s) named in this agreement. Unless a person who understands the principal's means of communication is present to assist when the agreement is signed, each witness must understand the means of communication used by the principal.1. Witness signature: _____________________________________________________Printed name: __________________________________Date: __________2. Witness signature: _____________________________________________________Printed name: __________________________________Date: __________(11) APPROVAL BY GUARDIAN. I am the guardian of __________________________________. I have read and understand the nature and effect of this agreement. I approve the use of this agreement by __________________________________ to obtain support in making decisions.Signature: _____________________________________________________Printed name: __________________________________Date: __________(12) APPROVAL BY CONSERVATOR. I am the conservator of __________________________________. I have read and understand the nature and effect of this agreement. I approve the use of this agreement by __________________________________ to obtain support in making decisions.Signature: _____________________________________________________Printed name: __________________________________Date: __________
In this chapter, unless the context indicates otherwise, (1) adult means an individual who is 18 years of age or older; (2) affairs means the affairs described in AS 13.56.160; (3) capacity means the ability to understand and appreciate the nature and consequences of a decision and the ability to reach and communicate an informed decision; (4) conservator means a person appointed a conservator under AS 13.26.401 - 13.26.595 or a similar law of another state; (5) decision means a decision relating to the affairs of a principal; (6) decision-making assistance means the decision-making assistance described in AS 13.56.100; (7) guardian means a person appointed a guardian under AS 13.26.201 - 13.26.316 or a similar law of another state; (8) immediate family member means a spouse, child, sibling, parent, grandparent, grandchild, stepparent, stepchild, or stepsibling; (9) person means an individual, health care institution, health care provider, corporation, partnership, limited liability company, association, joint venture, government, governmental subdivision, governmental agency, governmental instrumentality, public corporation, or another legal or commercial entity; (10) principal means an adult who enters into a supported decision-making agreement under this chapter to receive decision-making assistance; (11) supported decision-making agreement means an agreement authorized under AS 13.56.010; (12) supporter means an adult who enters into a supported decision-making agreement and provides decision-making assistance; (13) support services means the support services described in AS 13.56.170.
This chapter may be cited as the Supported Decision-Making Agreements Act.
(a) A person may create a custodial trust of property by a written transfer of the property to another person, evidenced by registration or by other instrument of transfer, executed in a lawful manner, naming as beneficiary an individual, who may be the transferor, and in which the transferee is designated, in substance, as custodial trustee under this chapter. (b) A person may create a custodial trust of property by a written declaration, evidenced by registration of the property or by other instrument of declaration executed in a lawful manner, describing the property and naming as beneficiary an individual other than the declarant, in which the declarant as titleholder is designated, in substance, as custodial trustee under this chapter. A registration or other declaration of trust for the sole benefit of the declarant is not a custodial trust under this chapter. (c) Title to custodial trust property is in the custodial trustee and the beneficial interest is in the beneficiary. (d) Except as provided in (e) of this section, a transferor may not terminate a custodial trust. (e) Except as otherwise provided by AS 13.12.212(c), the beneficiary, if not incapacitated, or the conservator of an incapacitated beneficiary, may terminate a custodial trust by delivering to the custodial trustee a writing signed by the beneficiary or conservator declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary. (f) A person may augment existing custodial trust property by the addition of other property as provided in this chapter. (g) The transferor may designate, or authorize the designation of, a successor custodial trustee in the trust instrument. (h) This chapter does not displace or restrict other means of creating trusts. A trust whose terms do not conform to this chapter may be enforceable according to its terms under other law.
(a) A person having the right to designate the recipient of property payable or transferable upon a future event may create a custodial trust upon the occurrence of the future event by designating in writing the recipient, followed in substance by as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act. (b) A person may be designated as substitute or successor custodial trustee to whom the property shall be paid or transferred in the order named if the first designated custodial trustee is unable or unwilling to serve. (c) A designation under this section may be made in a will, a trust, a deed, a multiple-party account, an insurance policy, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights. Otherwise, to be effective, the designation must be registered with or delivered to the fiduciary, payor, issuer, or obligor of the future right.
(a) The obligations of a custodial trustee, including the obligation to follow directions of the beneficiary, arise under this chapter upon the custodial trustee's acceptance, express or implied, of the custodial trust property. (b) The custodial trustee's acceptance may be evidenced by a writing stating in substance as follows:CUSTODIAL TRUSTEE'S RECEIPT AND ACCEPTANCEI, (name of custodial trustee) acknowledge receipt of the custodial trust property described below or in the attached instrument and accept the custodial trust as custodial trustee for (name of beneficiary) under the Alaska Uniform Custodial Trust Act. I undertake to administer and distribute the custodial trust property under the Alaska Uniform Custodial Trust Act. My obligations as custodial trustee are subject to the directions of the beneficiary unless the beneficiary is designated as, is, or becomes incapacitated. The custodial trust property consists of . Dated (Signature of Custodial Trustee) (c) Upon accepting custodial trust property, a person designated as custodial trustee under this chapter is subject to the personal jurisdiction of the court with respect to a matter relating to the custodial trust.
(a) Unless otherwise directed by an instrument designating a custodial trustee under AS 13.60.020, a person, including a fiduciary other than a custodial trustee, who holds property of or owes a debt to an incapacitated individual not having a conservator, may make a transfer to an adult member of the beneficiary's family or to a trust company as custodial trustee for the use and benefit of the incapacitated individual. If the value of the property or the debt exceeds $20,000, the transfer is not effective unless authorized by the court. (b) A written acknowledgment of delivery, signed by a custodial trustee, is a sufficient receipt and discharge for property transferred to the custodial trustee under this section.
(a) Beneficial interests in a custodial trust created for multiple beneficiaries are considered to be separate custodial trusts of equal undivided interests for each beneficiary. Except in a transfer or declaration for use and benefit of a married couple, for whom survivorship is presumed, a right of survivorship does not exist unless the instrument creating the custodial trust specifically provides for survivorship. (b) Custodial trust property held under this chapter by the same custodial trustee for the use and benefit of the same beneficiary may be administered as a single custodial trust. (c) A custodial trustee of custodial trust property held for more than one beneficiary shall separately account to each beneficiary under AS 13.60.060 and 13.60.140 for the administration of the custodial trust. (d) The provisions of (b) of this section do not apply to a custodial trust established under AS 13.12.212.
(a) If appropriate, a custodial trustee shall register or record the instrument vesting title to custodial trust property. (b) If the beneficiary is not incapacitated, a custodial trustee shall follow the directions of the beneficiary in the management, control, investment, or retention of the custodial trust property. In the absence of effective contrary direction by the beneficiary while not incapacitated, the custodial trustee shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by another law, except AS 13.90.010, restricting investments by fiduciaries. However, a custodial trustee, in the custodial trustee's discretion, may retain custodial trust property received from the transferor. If a custodial trustee has a special skill or expertise or is named custodial trustee on the basis of representation of a special skill or expertise, the custodial trustee shall use that skill or expertise.  (c) Subject to (b) of this section, a custodial trustee shall take control of and collect, hold, manage, invest, and reinvest custodial trust property. (d) A custodial trustee at all times shall keep custodial trust property of which the custodial trustee has control, separate from all other property in a manner sufficient to identify it clearly as custodial trust property of the beneficiary. Custodial trust property, the title to which is subject to recordation, is identified as required by this subsection if an appropriate instrument identifying the property is recorded, and custodial trust property subject to registration is identified as required by this subsection if it is registered, or held in an account in the name of the custodial trustee, designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act. (e) A custodial trustee shall keep records of all transactions with respect to custodial trust property, including information necessary for the preparation of tax returns, and shall make the records and information available at reasonable times to the beneficiary or legal representative of the beneficiary. (f) The exercise of a durable power of attorney for an incapacitated beneficiary is not effective to terminate or direct the administration or distribution of a custodial trust.
(a) A custodial trustee, acting in a fiduciary capacity, has all the rights and powers over custodial trust property that an unmarried adult owner has over individually owned property, but a custodial trustee may exercise those rights and powers in a fiduciary capacity only. (b) This section does not relieve a custodial trustee from liability for a violation of AS 13.60.060.
(a) A custodial trustee shall pay to the beneficiary or expend for the beneficiary's use and benefit so much or all of the custodial trust property as the beneficiary while not incapacitated may direct from time to time. (b) If the beneficiary is incapacitated, the custodial trustee shall expend so much or all of the custodial trust property as the custodial trustee considers advisable for the use and benefit of the beneficiary and individuals who were supported by the beneficiary when the beneficiary became incapacitated, or who are legally entitled to support by the beneficiary. Expenditures may be made in the manner, when, and to the extent that the custodial trustee determines suitable and proper, without court order and, except as otherwise provided in AS 13.12.212(d), without regard to other support, income, or property of the beneficiary. (c) A custodial trustee may establish checking, savings, or other similar accounts of reasonable amounts under which either the custodial trustee or the beneficiary may withdraw funds from, or draw checks against, the accounts. Funds withdrawn from, or checks written against, the account by the beneficiary are distributions of custodial trust property by the custodial trustee to the beneficiary.
(a) The custodial trustee shall administer the custodial trust as for an incapacitated beneficiary if (1) the custodial trust was created under AS 13.60.040; (2) the transferor has so directed in the instrument creating the custodial trust; or (3) the custodial trustee has determined that the beneficiary is incapacitated. (b) A custodial trustee may determine that the beneficiary is incapacitated by relying upon (1) previous direction or authority given by the beneficiary while not incapacitated, including direction or authority under a durable power of attorney; (2) the certificate of the beneficiary's physician; or (3) other persuasive evidence. (c) If a custodial trustee for an incapacitated beneficiary reasonably concludes that the beneficiary's incapacity has ceased, or that circumstances concerning the beneficiary's ability to manage property and business affairs have changed since the creation of a custodial trust directing administration as for an incapacitated beneficiary, the custodial trustee may administer the trust as for a beneficiary who is not incapacitated. (d) On petition of the beneficiary, the custodial trustee, or other person interested in the custodial trust property or the welfare of the beneficiary, the court shall determine whether the beneficiary is incapacitated. (e) Absent determination of incapacity of the beneficiary under (b) or (d) of this section, a custodial trustee who has reason to believe that the beneficiary is incapacitated shall administer the custodial trust under the provisions of this chapter applicable to an incapacitated beneficiary. (f) Incapacity of a beneficiary does not terminate (1) the custodial trust; (2) a designation of a successor custodial trustee; (3) rights or powers of the custodial trustee; or (4) the immunities of third persons acting on instructions of the custodial trustee.
A third person in good faith and without a court order may act on instructions of, or otherwise deal with, a person purporting to make a transfer as, or purporting to act in the capacity of, a custodial trustee. In the absence of knowledge to the contrary, the third person is not responsible for determining (1) the validity of the purported custodial trustee's designation; (2) the propriety of, or the authority under this chapter for, an action of the purported custodial trustee; (3) the validity or propriety of an instrument executed or instruction given under this chapter either by the person purporting to make a transfer or declaration or by the purported custodial trustee; or (4) the propriety of the application of property vested in the purported custodial trustee.
(a) A claim based on a contract entered into by a custodial trustee acting in a fiduciary capacity, an obligation arising from the ownership or control of custodial trust property, or a tort committed in the course of administering the custodial trust, may be asserted by a third person against the custodial trust property by proceeding against the custodial trustee in a fiduciary capacity, whether or not the custodial trustee or the beneficiary is personally liable. (b) A custodial trustee is not personally liable to a third person (1) on a contract properly entered into in a fiduciary capacity unless the custodial trustee fails to reveal that capacity or to identify the custodial trust in the contract; or (2) for an obligation arising from control of custodial trust property or for a tort committed in the course of the administration of the custodial trust unless the custodial trustee is personally at fault. (c) A beneficiary is not personally liable to a third person for an obligation arising from beneficial ownership of custodial trust property or for a tort committed in the course of administration of the custodial trust unless the beneficiary is personally in possession of the custodial trust property giving rise to the liability or is personally at fault. (d) The provisions of (b) and (c) of this section do not preclude actions or proceedings to establish liability of the custodial trustee or beneficiary to the extent the person sued is protected as the insured by liability insurance.
(a) Before accepting the custodial trust property, a person designated as custodial trustee may decline to serve by notifying the person who made the designation, the transferor, or the transferor's legal representative. If an event giving rise to a transfer has not occurred, the substitute custodial trustee designated under AS 13.60.020 becomes the custodial trustee, or, if a substitute custodial trustee has not been designated, the person who made the designation may designate a substitute custodial trustee under AS 13.60.020. In other cases, the transferor or the transferor's legal representative may designate a substitute custodial trustee. (b) A custodial trustee who has accepted the custodial trust property may resign by (1) delivering written notice to a successor custodial trustee, if any, the beneficiary, and, if the beneficiary is incapacitated, to the beneficiary's conservator, if any; and (2) transferring or registering the custodial trust property, or recording an appropriate instrument relating to the custodial trust property, in the name of the successor custodial trustee identified under (c) of this section, and delivering the records to the successor custodial trustee. (c) If a custodial trustee or successor custodial trustee is ineligible, resigns, dies, or becomes incapacitated, the successor designated under the trust instrument or under AS 13.60.020 becomes custodial trustee. If there is no effective provision for a successor, the beneficiary, if not incapacitated, may designate a successor custodial trustee. If the beneficiary is incapacitated, or fails to act within 90 days after the ineligibility, resignation, death, or incapacity of the custodial trustee, the beneficiary's conservator becomes successor custodial trustee. If the beneficiary does not have a conservator or the conservator fails to act, the resigning custodial trustee may designate a successor custodial trustee. (d) If a successor custodial trustee is not designated under (c) of this section, the transferor, the legal representative of the transferor or of the custodial trustee, an adult member of the beneficiary's family, the guardian of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary, may petition the court to designate a successor custodial trustee. (e) A custodial trustee who declines to serve or resigns, or the legal representative of a deceased or incapacitated custodial trustee, as soon as practicable, shall put the custodial trust property and records in the possession and control of the successor custodial trustee. The successor custodial trustee may enforce the obligation to deliver custodial trust property and records and becomes responsible for each item as received. (f) A beneficiary, the beneficiary's conservator, an adult member of the beneficiary's family, a guardian of the person of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary, may petition the court to remove the custodial trustee for cause and designate a successor custodial trustee, to require the custodial trustee to furnish a bond or other security for the faithful performance of fiduciary duties, or for other appropriate relief.
Except as otherwise provided in the instrument creating the custodial trust, in an agreement with the beneficiary, or by court order, a custodial trustee (1) is entitled to reimbursement from custodial trust property for reasonable expenses incurred in the performance of fiduciary services; (2) has a noncumulative election, to be made no later than six months after the end of each calendar year, to charge a reasonable compensation for fiduciary services performed during that year; and (3) does not need to furnish a bond or other security for the faithful performance of fiduciary duties.
(a) Upon the acceptance of custodial trust property, the custodial trustee shall provide a written statement describing the custodial trust property and shall thereafter provide a written statement of the administration of the custodial trust property (1) once each year; (2) upon request at reasonable times by the beneficiary or the beneficiary's legal representative; (3) upon resignation or removal of the custodial trustee; and (4) upon termination of the custodial trust. (b) The statements under (a) of this section shall be provided to the beneficiary or to the beneficiary's legal representative, if any. Upon termination of the beneficiary's interest, the custodial trustee shall furnish a current statement to the person to whom the custodial trust property is to be delivered. (c) A beneficiary, the beneficiary's legal representative, an adult member of the beneficiary's family, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court for an accounting by the custodial trustee or the custodial trustee's legal representative. (d) A successor custodial trustee may petition the court for an accounting by a previous custodial trustee. (e) In an action or proceeding under this chapter or in another proceeding, the court may require or permit the custodial trustee or the custodial trustee's legal representative to account. The custodial trustee or the custodial trustee's legal representative may petition the court for approval of final accounts. (f) If a custodial trustee is removed, the court shall require an accounting and order delivery of the custodial trust property and records to the successor custodial trustee and the execution of all instruments required for transfer of the custodial trust property. (g) On petition of the custodial trustee or a person who could petition for an accounting, the court, after notice to interested persons, may issue instructions to the custodial trustee or review the propriety of the acts of a custodial trustee or the reasonableness of compensation determined by the custodial trustee for the services of the custodial trustee or others.
(a) Except as provided in (c) of this section, and unless previously barred by adjudication, consent, or limitation, a claim for relief against a custodial trustee for accounting or breach of duty is barred as to a beneficiary, a person to whom custodial trust property is to be paid or delivered, or the legal representative of an incapacitated or deceased beneficiary or payee, if the person, beneficiary, or legal representative (1) has received a final account or statement fully disclosing the matter, unless an action or proceeding to assert the claim is commenced within two years after receipt of the final account or statement; or (2) has not received a final account or statement fully disclosing the matter unless an action or proceeding to assert the claim is commenced within three years after the termination of the custodial trust. (b) Except as provided in (c) of this section, a claim for relief to recover from a custodial trustee for fraud, misrepresentation, or concealment related to the final settlement of the custodial trust or concealment of the existence of the custodial trust, is barred unless an action or proceeding to assert the claim is commenced within five years after the termination of the custodial trust. (c) A claim for relief is not barred by this section (1) if the claimant is a minor, until the earlier of two years after the claimant becomes an adult or dies; (2) if the claimant is an incapacitated adult, until the earliest of two years after (A) the appointment of a conservator; (B) the removal of the incapacity; or (C) the death of the claimant; or (3) until two years after the claimant's death, if the claimant was an adult, who is now deceased and who was not incapacitated.
(a) Except as otherwise provided by AS 13.12.212(e), upon termination of a custodial trust, the custodial trustee shall transfer the unexpended custodial trust property (1) to the beneficiary, if not incapacitated or deceased; (2) to the conservator or other recipient designated by the court for an incapacitated beneficiary; or (3) upon the beneficiary's death, in the following order: (A) as last directed in a writing signed by the deceased beneficiary while not incapacitated and received by the custodial trustee during the life of the deceased beneficiary; (B) to the survivor of multiple beneficiaries if survivorship is provided for under AS 13.60.050; (C) as designated in the instrument creating the custodial trust; or (D) to the estate of the deceased beneficiary. (b) If, when the custodial trust would otherwise terminate, the distributee is incapacitated, the custodial trust continues for the use and benefit of the distributee as beneficiary until the incapacity is removed or the custodial trust is otherwise terminated. (c) Death of a beneficiary does not terminate the power of the custodial trustee to discharge obligations of the custodial trustee or beneficiary incurred before the termination of the custodial trust.
(a) If a transaction, including a declaration with respect to specific property or a transfer of specific property, otherwise satisfies applicable law, the criteria of AS 13.60.010 are satisfied by (1) the execution and either delivery to the custodial trustee or recording of an instrument in substantially the following form:TRANSFER UNDER THE ALASKA UNIFORM CUSTODIAL TRUST ACTI, __________________________________ (name of transferor or name and representative capacity if a fiduciary), transfer to __________________________________ (name of trustee other than transferor), as custodial trustee for __________________________________ (name of beneficiary) as beneficiary and __________________________________ as distributee on termination of the trust in absence of direction by the beneficiary under the Alaska Uniform Custodial Trust Act, the following: (insert a description of the custodial trust property legally sufficient to identify and transfer each item of property).Dated: ______________________________________ (2) the execution and the recording or giving notice of its execution to the beneficiary of an instrument in substantially the following form:DECLARATION OF TRUST UNDER THE ALASKA UNIFORM CUSTODIAL TRUST ACTI, __________________________________ (name of owner of property), declare that from this date I hold as custodial trustee for __________________________________ (name of beneficiary other than transferor) as beneficiary and __________________________________ as distributee on termination of the trust in absence of direction by the beneficiary under the Alaska Uniform Custodial Trust Act, the following: (insert a description of the custodial trust property legally sufficient to identify and transfer each item of property).Dated: ______________________________________ (b) Either form identified under (a) of this section may be modified by the transferor of the property to include, for example, the designation of an alternate or successor trustee or the recipient of the custodial property upon termination of the trust. (c) Customary methods of transferring or evidencing ownership of property may be used to create a custodial trust, including the following: (1) registration of a security in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; (2) delivery of a certificated security, or a document necessary for the transfer of an uncertificated security, together with any necessary endorsement, to an adult other than the transferor or to a trust company as custodial trustee, accompanied by an instrument in substantially the form set out in (a)(1) of this section; (3) payment of money or transfer of a security held in the name of a broker or a financial institution or its nominee to a broker or financial institution for credit to an account in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; (4) registration of ownership of a life or endowment insurance policy or annuity contract with the issuer in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; (5) delivery of a written assignment to an adult other than the transferor or to a trust company whose name in the assignment is designated in substance by the words as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; (6) irrevocable exercise of a power of appointment, under its terms, in favor of a trust company, an adult other than the donee of the power, or the donee who holds the power if the beneficiary is other than the donee, whose name in the appointment is designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; (7) delivery of a written notification or assignment of a right to future payment under a contract to an obligor that transfers the right under the contract to a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, whose name in the notification or assignment is designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; (8) execution, delivery, and recordation of a conveyance of an interest in real property in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; (9) issuance of a certificate of title by an agency of a state or of the United States that evidences title to tangible personal property (A) issued in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; or (B) delivered to a trust company or an adult other than the transferor or endorsed by the transferor to that person, designated in substance as custodial trustee for _____________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act; or (10) execution and delivery of an instrument of gift to a trust company or an adult other than the transferor, designated in substance as custodial trustee for _____________________________________________________________________ (name of beneficiary) under the Alaska Uniform Custodial Trust Act.
(a) This chapter applies to a transfer or declaration creating a custodial trust that refers to this chapter if, at the time of the transfer or declaration, the transferor, beneficiary, or custodial trustee is a resident of or has its principal place of business in this state or custodial trust property is located in this state. The custodial trust remains subject to this chapter despite a later change in residence or principal place of business of the transferor, beneficiary, or custodial trustee, or removal of the custodial trust property from this state. (b) A transfer made under an act of another state substantially similar to this chapter is governed by the law of that state and may be enforced in this state.
This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
In this chapter, (1) adult means an individual who is at least 18 years of age; (2) beneficiary means an individual for whom property has been transferred to or held under a declaration of trust by a custodial trustee for the individual's use and benefit under this chapter; (3) conservator means a person appointed or qualified by a court to manage the estate of an individual or a person legally authorized to perform substantially the same functions; (4) court means the superior court of this state; (5) custodial trust property means an interest in property transferred to or held under a declaration of trust by a custodial trustee under this chapter and the income from and proceeds of that interest; (6) custodial trustee means a person designated as trustee of a custodial trust under this chapter or a substitute or successor to the person designated; (7) guardian means a person appointed or qualified by a court as a guardian of an individual, including a limited guardian, but not a person who is only a guardian ad litem; (8) incapacitated means lacking the ability to manage property and business affairs effectively by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, disappearance, minority, or other disabling cause; (9) legal representative means a personal representative or conservator; (10) member of the beneficiary's family means a beneficiary's spouse, descendant, stepchild, parent, stepparent, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption; (11) personal representative means an executor, administrator, or special administrator of a decedent's estate, a person legally authorized to perform substantially the same functions, or a successor to any of them; (12) state means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico; (13) transferor means a person who creates a custodial trust by transfer or declaration; (14) trust company means a financial institution, corporation, or other legal entity, authorized to exercise general trust powers.
This chapter may be cited as the Alaska Uniform Custodial Trust Act.
(a) A user may use an online tool to direct the custodian to disclose to a designated recipient, or not to disclose, some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record. (b) If a user has not used an online tool to give direction under (a) of this section or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user. (c) A user's direction under (a) or (b) of this section overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.
(a) This chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user. (b) This chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents. (c) A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under AS 13.63.010.
(a) When disclosing digital assets of a user under this chapter, the custodian may, in its sole discretion, (1) grant a fiduciary or designated recipient full access to the user's account; (2) grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or (3) provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account. (b) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter. (c) A custodian is not required to disclose under this chapter a digital asset deleted by a user. (d) If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user's digital assets, the custodian is not required to disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the superior court to disclose (1) a subset limited by date of the user's digital assets; (2) all of the user's digital assets to the fiduciary or designated recipient; (3) none of the user's digital assets; or (4) all of the user's digital assets to the superior court for review in camera.
If a deceased user consented or a superior court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives the custodian (1) a written request for disclosure in physical or electronic form; (2) a certified copy of the death certificate of the user; (3) a certified copy of the letters testamentary of the personal representative; (4) unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and (5) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account; (B) evidence linking the account to the user; or (C) a finding by the superior court that (i) the user had a specific account with the custodian, identifiable by the information specified in (A) of this paragraph; (ii) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. 2701 - 2712, 47 U.S.C. 222, or other applicable law; (iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or (iv) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
Unless the user prohibited disclosure of digital assets or the superior court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user if the representative gives the custodian (1) a written request for disclosure in physical or electronic form; (2) a certified copy of the death certificate of the user; (3) a certified copy of the letters testamentary of the personal representative; and (4) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account; (B) evidence linking the account to the user; (C) an affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or (D) a finding by the superior court that (i) the user had a specific account with the custodian, identifiable by the information specified in (A) of this paragraph; or (ii) disclosure of the user's digital assets is reasonably necessary for administration of the estate.
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the superior court, a custodian shall disclose to the agent the content if the agent gives the custodian (1) a written request for disclosure in physical or electronic form; (2) an original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal; (3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and (4) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or (B) evidence linking the account to the principal.
Unless otherwise ordered by the superior court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalog of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian (1) a written request for disclosure in physical or electronic form; (2) an original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal; (3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and (4) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or (B) evidence linking the account to the principal.
Unless otherwise ordered by the superior court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalog of electronic communications of the trustee and the content of electronic communications.
Unless otherwise ordered by the superior court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian (1) a written request for disclosure in physical or electronic form; (2) a certified copy of the trust instrument or a certification of the trust under AS 13.36.079 that includes consent to disclosure of the content of electronic communications to the trustee; (3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and (4) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or (B) evidence linking the account to the trust.
Unless otherwise ordered by the superior court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account a catalog of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian (1) a written request for disclosure in physical or electronic form; (2) a certified copy of the trust instrument or a certification of the trust under AS 13.36.079; (3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and (4) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or (B) evidence linking the account to the trust.
(a) After an opportunity for a hearing under AS 13.26.401 - 13.26.595, the superior court may grant a conservator access to the digital assets of a protected person except that, if the conservator is a guardian with the powers and duties of a conservator under AS 13.26.316(c), the superior court may grant the conservator access to the digital assets of a protected person after an opportunity for a hearing under AS 13.26.201 - 13.26.316. (b) Unless otherwise ordered by the superior court or directed by the user, a custodian shall disclose to a conservator the catalog of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian (1) a written request for disclosure in physical or electronic form; (2) a certified copy of the superior court order that gives the conservator authority over the digital assets of the protected person; and (3) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or (B) evidence linking the account to the protected person. (c) A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this subsection must be accompanied by a certified copy of the superior court order giving the conservator authority over the protected person's property.
(a) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including (1) the duty of care; (2) the duty of loyalty; and (3) the duty of confidentiality. (b) A fiduciary's or designated recipient's authority with respect to a digital asset of a user (1) except as otherwise provided in AS 13.63.010, is subject to the applicable terms of service; (2) is subject to other applicable law, including copyright law; (3) in the case of a fiduciary, is limited by the scope of the fiduciary's duties; and (4) may not be used to impersonate the user. (c) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement. (d) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer-fraud and unauthorized-computer-access laws, including AS 11.46.200, 11.46.484(a)(3), and 11.46.740. (e) A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor (1) has the right to access the property and any digital asset stored in it; and (2) is an authorized user for the purpose of computer-fraud and unauthorized-computer-access laws, including AS 11.46.200, 11.46.484(a)(3), and 11.46.740. (f) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user. (g) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination must be in writing, in either physical or electronic form, and accompanied by (1) if the user is deceased, a certified copy of the death certificate of the user; (2) a certified copy of the letters testamentary of the personal representative, the superior court order, the power of attorney, or the trust instrument giving the fiduciary authority over the account; and (3) if requested by the custodian, (A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account; (B) evidence linking the account to the user; or (C) a finding by the superior court that the user had a specific account with the custodian, identifiable by the information specified in (A) of this paragraph.
(a) Not later than 60 days after receipt of the information required under AS 13.63.040 - 13.63.120, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the superior court for an order directing compliance. (b) An order under (a) of this section directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. 2702. (c) A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter. (d) A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request. (e) This chapter does not limit a custodian's ability to obtain or to require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a superior court order that (1) specifies that an account belongs to the protected person or principal; (2) specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and (3) contains a finding required by law other than this chapter. (f) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.
In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
This chapter modifies, limits, or supersedes 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), but does not modify, limit, or supersede 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).
In this chapter, a digital asset does not apply to an underlying asset or liability unless the asset or liability is itself an electronic record. This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
This chapter applies to a custodian if the user resides in this state or resided in this state at the time of the user's death.
In this chapter, (1) account means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user; (2) agent means an attorney-in-fact granted authority under a durable or nondurable power of attorney; (3) carries means engages in the transmission of an electronic communication; (4) catalog of electronic communications means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person; (5) conservator means a person appointed by a superior court to manage all or part of the estate of a living individual; (6) content of an electronic communication means information concerning the substance or meaning of the communication that (A) has been sent or received by a user; (B) is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public; in this subparagraph, (i) electronic-communication service means the ability to send or receive an electronic communication; (ii) remote-computing service means computer- processing services or the storage of digital assets by means of an electronic communications system; in this sub-subparagraph, electronic communications system has the meaning given in 18 U.S.C. 2510; and (C) is not readily accessible to the public; (7) custodian means a person that carries, maintains, processes, receives, or stores a digital asset of a user; (8) designated recipient means a person chosen by a user using an online tool to administer digital assets of the user; (9) digital asset means an electronic record in which an individual has a right or interest, but does not include an underlying asset or liability unless the asset or liability is itself an electronic record; (10) electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities; (11) electronic communication has the meaning given in 18 U.S.C. 2510; (12) fiduciary means an original, additional, or successor personal representative, conservator, agent, or trustee; (13) information means data, text, images, videos, sounds, codes, computer programs, software, databases, or similar items; (14) online tool means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person; (15) person means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or another legal entity; (16) personal representative means an executor, administrator, special administrator, or person that performs substantially the same function under law of this state other than this chapter; (17) power of attorney means a record that grants an agent authority to act in the place of a principal; (18) principal means an individual who grants authority to an agent in a power of attorney; (19) protected person means an individual for whom a conservator has been appointed or an individual for whom an application for the appointment of a conservator is pending; (20) record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; (21) terms-of-service agreement means an agreement that controls the relationship between a user and a custodian; (22) trustee means a fiduciary, whether the original fiduciary or a successor fiduciary, with legal title to property under an agreement or declaration that creates a beneficial interest in another person; (23) user means a person that has an account with a custodian; (24) will includes a codicil, a testamentary instrument that only appoints an executor, and an instrument that revokes or revises a testamentary instrument.
This chapter may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act.
(a) Subject to the intent of a donor expressed in a gift instrument, an institution, in managing and investing an institutional fund, shall consider the charitable purposes of the institution and the purposes of the institutional fund. (b) In addition to complying with the duty of loyalty imposed by law other than this chapter, each person responsible for managing and investing an institutional fund shall manage and invest the fund in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances. (c) In managing and investing an institutional fund, an institution (1) may incur only costs that are appropriate and reasonable in relation to the assets, the purposes of the institution, and the skills available to the institution; and (2) shall make a reasonable effort to verify facts relevant to the management and investment of the fund. (d) An institution may pool two or more institutional funds for purposes of management and investment. (e) Except as otherwise provided by a gift instrument, the following rules apply: (1) in managing and investing an institutional fund, the following factors, if relevant, must be considered: (A) general economic conditions; (B) the possible effect of inflation or deflation; (C) the expected tax consequences, if any, of investment decisions or strategies; (D) the role that each investment or course of action plays within the overall investment portfolio of the fund; (E) the expected total return from income and the appreciation of investments; (F) other resources of the institution; (G) the needs of the institution and the fund to make distributions and to preserve capital; and (H) an asset's special relationship or special value, if any, to the charitable purposes of the institution; (2) management and investment decisions about an individual asset may not be made in isolation but rather in the context of the institutional fund's portfolio of investments as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the fund and to the institution; (3) except as otherwise provided by law other than this chapter, an institution may invest in any kind of property or type of investment consistent with the standards of this section; (4) an institution shall diversify the investments of an institutional fund unless the institution reasonably determines that, because of special circumstances, the purposes of the fund are better served without diversification; (5) within a reasonable time after receiving property, an institution shall make and implement decisions concerning the retention or disposition of the property or to rebalance a portfolio in order to bring the institutional fund into compliance with the purposes, terms, distribution requirements, and other circumstances of the institution and the requirements of this chapter; (6) a person who has special skills or expertise, or is selected in reliance on the person's representation that the person has special skills or expertise, has a duty to use those special skills or that expertise in managing and investing institutional funds.
(a) Subject to the intent of a donor expressed in a gift instrument, an institution may appropriate for expenditure or accumulate so much of an endowment fund as the institution determines is prudent for the uses, benefits, purposes, and duration for which the endowment fund is established. Unless stated otherwise in a gift instrument, the assets in an endowment fund are donor-restricted assets until appropriated for expenditure by the institution. In making a determination to appropriate or accumulate, the institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and shall consider, if relevant, the following factors: (1) the duration and preservation of the endowment fund; (2) the purposes of the institution and the endowment fund; (3) general economic conditions; (4) the possible effect of inflation or deflation; (5) the expected total return from income and the appreciation of investments; (6) other resources of the institution; and (7) the investment policy of the institution. (b) To limit the authority to appropriate for expenditure or accumulate under (a) of this section, a gift instrument must specifically state the limitation. (c) Terms in a gift instrument designating a gift as an endowment, a direction or authorization in the gift instrument to use only income, interest, dividends, or rents, issues, or profits, or to preserve the principal intact, or words of similar meaning (1) create an endowment fund of permanent duration unless other language in the gift instrument limits the duration or purpose of the fund; and (2) do not otherwise limit the authority to appropriate for expenditure or accumulate under (a) of this section.
(a) Subject to a specific limitation set out in a gift instrument or in law other than this chapter, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in (1) selecting an agent; (2) establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and (3) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation. (b) In performing a delegated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation. (c) An institution that complies with (a) of this section is not liable for the decisions or actions of an agent to whom the function was delegated. (d) By accepting delegation of a management or investment function from an institution that is subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state in all proceedings arising from or related to the delegation or the performance of the delegated function. (e) An institution may delegate management and investment functions to its committees, officers, or employees as authorized by law other than this chapter.
(a) With the donor's consent in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund. A release or modification may not allow a fund to be used for a purpose other than a charitable purpose of the institution. (b) If a restriction contained in a gift instrument on the management or investment of an institutional fund becomes impracticable or wasteful or impairs the management or investment of the fund, or if, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of the fund, the court, on application of the institution, may modify the restriction. The institution shall notify the attorney general of the application. To the extent practicable, a modification shall be made in accordance with the donor's probable intention. (c) If a particular charitable purpose or a restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or wasteful, the court, on application of an institution, may modify the purpose of the fund or the restriction on the use of the fund in a manner consistent with the charitable purposes expressed in the gift instrument. (d) If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution, 90 days or more after notification of the attorney general, may release or modify the restriction, in whole or part, if (1) the institutional fund subject to the restriction has a total value of less than $50,000; (2) more than 20 years have elapsed since the fund was established; and (3) the institution uses the property in a manner the institution reasonably determines to be consistent with the charitable purposes expressed in the gift instrument.
Compliance with this chapter is determined in light of the facts and circumstances existing at the time a decision is made or an action is taken.
This chapter modifies, limits, and supersedes 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), but does not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of a notice described in 15 U.S.C. 7003(b).
If another provision of law or of a governing instrument of an institution applies to an institutional fund but conflicts with this chapter, the other provision governs.
In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
In this chapter, (1) charitable purpose means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or another purpose the achievement of which is beneficial to the community; (2) endowment fund means an institutional fund, or part of an institutional fund, not wholly expendable by the institution on a current basis under the terms of a gift instrument; the term does not include assets of an institution designated by an institution as an endowment fund for its own use; (3) gift instrument means a record, including an institutional solicitation, under which property is granted to, transferred to, or held by an institutional fund; (4) institution means (A) a person, other than an individual, organized and operated exclusively for charitable purposes; (B) a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or (C) a trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated; (5) institutional fund means a fund held by an institution exclusively for charitable purposes; the term does not include (A) program-related assets; (B) a fund held for an institution by a trustee who is not an institution; or (C) a fund in which a beneficiary who is not an institution has an interest, other than an interest that could arise on a violation or failure of the purposes of the fund; (6) person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or another legal or commercial entity; (7) program-related asset means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for appreciation or the production of income; (8) record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
This chapter may be cited as the Uniform Prudent Management of Institutional Funds Act.
This chapter applies to disclaimers of any interest in or power over property, whenever created.
(a) Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter. (b) This chapter does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this chapter.
(a) A person may disclaim, in whole or part, conditionally or unconditionally, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction, prohibition, or limitation on the right to disclaim. A disclaimer shall be considered to be unconditional and not subject to modification or revocation unless the disclaimant provides otherwise in the disclaimer. (b) With court approval, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment. Without court approval, a fiduciary may not disclaim, in whole or in part, any interest in or power over property, including a power of appointment, except that (1) a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, if and to the extent that the instrument creating the fiduciary relationship grants the fiduciary the right to disclaim; (2) in the absence of a court-appointed guardian, notwithstanding a provision in AS 13.26 to the contrary, an individual having legal custody of a minor child may disclaim on behalf of the minor child, in whole or in part, any interest in or power over property, including a power of appointment, that the minor child is to receive solely as a result of another disclaimer, but only if the interest or power disclaimed by the individual having legal custody does not pass, as a result of the disclaimer, to or for the benefit of the individual having legal custody. (c) To be effective, a disclaimer must be in writing, declare that the writing is a disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in AS 13.70.100. (d) A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property. (e) A disclaimer becomes irrevocable when (1) any conditions to which the disclaimant has made the disclaimer subject are satisfied; and (2) the disclaimer is delivered or filed under AS 13.70.100, or becomes effective as provided in AS 13.70.040 - 13.70.090, whichever occurs later. (f) A disclaimer made under this chapter is not a transfer, assignment, or release.
(a) Except for a disclaimer governed by AS 13.70.050 - 13.70.065, the following rules apply to a disclaimer of an interest in property: (1) the disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or, if the interest arose under the law of intestate succession, as of the time of the intestate's death; (2) the disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general; (3) if the instrument does not contain a provision described in (2) of this subsection, the following rules apply: (A) if the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist; (B) if the disclaimant is an individual, except as otherwise provided in (C) and (D) of this paragraph, the disclaimed interest passes as if the disclaimant had died immediately before the interest was created, unless, under the governing instrument or other applicable law, the disclaimed interest is contingent on surviving to the time of distribution, in which case, the disclaimed interest passes as if the disclaimant had died immediately before the time for distribution; (C) if, by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution; (D) if the disclaimed interest would pass to the disclaimant's estate had the disclaimant died before the time of distribution, the disclaimed interest instead passes by representation to the descendants of the disclaimant who survive the time of distribution; if no descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to those persons, including the state but excluding the disclaimant, and in the shares as would succeed to the transferor's intestate estate under the intestate succession law of the transferor's domicile had the transferor died at the time of distribution; however, if the transferor's surviving spouse is living but is remarried at the time of distribution, the transferor is considered to have died unmarried at the time of distribution; (4) on the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment as a result of the disclaimer. (b) For the purposes of (a)(3) of this section, a disclaimed interest (1) is created at (A) the death of the benefactor; or (B) an earlier time, if any, when the benefactor's transfer of the interest is a completed gift for federal gift tax purposes; and (2) in a revocable trust is treated as if the interest had been created under a will. (c) In this section, (1) benefactor means the creator of the interest that is subject to a disclaimer; (2) future interest means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation; (3) time of distribution means the time when a disclaimed interest would have taken effect in possession or enjoyment.
(a) On the death of a holder of jointly held property, a surviving holder may disclaim, in whole or part, the greater of (1) a fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates; or (2) all of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant. (b) A disclaimer under (a) of this section takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates. (c) An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.
(a) The survivorship interest in property that is held as a tenancy by the entirety and to which the survivor succeeds by operation of law on the death of the cotenant may be disclaimed as provided in this chapter. For the purposes of this chapter only, the deceased tenant's interest in property held as a tenancy by the entirety is considered to be an undivided one-half interest. (b) A disclaimer under (a) of this section takes effect as of the death of the deceased tenant to whose death the disclaimer relates. (c) The survivorship interest in property held as a tenancy by the entirety and disclaimed by the surviving tenant passes as if the disclaimant had predeceased the tenant to whose death the disclaimer relates.
If a trustee who has the power to disclaim under a court order or under the instrument creating the fiduciary relationship disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.
If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the following rules apply: (1) if the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable; (2) if the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power; (3) the instrument creating the power is construed as if the power expired when the disclaimer became effective.
(a) A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable. (b) A disclaimer of an interest in property by an object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.
(a) If a fiduciary disclaims a power held in a fiduciary capacity that has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable. (b) If a fiduciary disclaims a power held in a fiduciary capacity that has been exercised, the disclaimer takes effect immediately after the last exercise of the power. (c) A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.
(a) Subject to (b) - (l) of this section, delivery of a disclaimer may be effected by personal delivery, first class mail, or any other method likely to result in its receipt. A disclaimer sent by first class mail is considered to have been delivered on the date it is postmarked. Delivery by personal delivery or any other method is effective on receipt by the person to whom the disclaimer is to be delivered under this section. (b) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust, (1) a disclaimer shall be delivered to the personal representative of the decedent's estate; or (2) if a personal representative is not then serving, it shall be filed with a court having jurisdiction to appoint the personal representative. (c) In the case of an interest in a testamentary trust, (1) a disclaimer shall be delivered to the trustee then serving, or if a trustee is not then serving, to the personal representative of the decedent's estate; or (2) if no personal representative is then serving, a disclaimer shall be filed with a court having jurisdiction to enforce the trust. (d) In the case of an interest in an inter vivos trust, (1) a disclaimer shall be delivered to the trustee then serving; (2) if no trustee is then serving, a disclaimer shall be filed with a court having jurisdiction to enforce the trust; or (3) if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, the disclaimer shall be delivered to the settlor of a revocable trust or the transferor of the interest, or the legal representative of the settlor or transferor. (e) In the case of an interest created by a beneficiary designation that is disclaimed before the designation becomes irrevocable, the disclaimer shall be delivered to the person making the beneficiary designation. (f) In the case of an interest created by a beneficiary designation that is disclaimed after the designation becomes irrevocable, the disclaimer of an interest in (1) personal property shall be delivered to the person obligated to distribute the interest; and (2) real property shall be recorded in the office of the recorder in the recording district where the real property that is the subject of the disclaimer is located. (g) In the case of a disclaimer by a surviving holder of jointly held property or by the surviving tenant of property held as a tenancy by the entirety, the disclaimer shall be delivered to the person to whom the disclaimed interest passes, or, if the person cannot reasonably be located by the disclaimant, the disclaimer shall be delivered as provided by (b) of this subsection. (h) In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created, (1) the disclaimer shall be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or (2) if no fiduciary is then serving, the disclaimer shall be filed with a court having authority to appoint the fiduciary. (i) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, (1) the disclaimer shall be delivered to the holder, the personal representative of the holder's estate, or to the fiduciary under the instrument that created the power; or (2) if no fiduciary is then serving, the disclaimer shall be filed with a court having authority to appoint the fiduciary. (j) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer shall be delivered as provided in (b) - (d) of this section, as if the power disclaimed were an interest in property. (k) In the case of a disclaimer of a power by an agent, except a power exercisable by a fiduciary over a trust or estate, the disclaimer shall be delivered to the principal or the principal's representative. (l) When a disclaimer of an interest in or relating to real property is recorded in the judicial district where the real property is located, there is a rebuttable presumption that the disclaimer has been delivered. (m) In this section, beneficiary designation means an instrument, other than an instrument creating or amending a trust, naming the beneficiary of (1) an annuity or insurance policy; (2) an account with a designation for payment on death; (3) a security registered in beneficiary form; (4) a pension, profit-sharing, retirement, or other employment-related benefit plan; or (5) any other nonprobate transfer at death.
(a) A disclaimer is permitted unless barred under (b) - (f) of this section. A disclaimer is permitted even though the disclaimant is insolvent. (b) A disclaimer is barred by a written waiver of the right to disclaim. (c) A disclaimer of an interest in property is barred if any of the following events occurs before the disclaimer becomes effective: (1) the disclaimant accepts the interest sought to be disclaimed; (2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to assign, convey, encumber, pledge, or transfer the interest sought to be disclaimed; or (3) a judicial sale or a nonjudicial foreclosure sale of the interest sought to be disclaimed occurs. (d) A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise. (e) A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant. (f) A disclaimer of an interest in or power over property under this chapter is barred and is not effective (1) to the extent the disclaimant is in arrears in child support payments; or (2) if the disclaimant is involved in a pending court or administrative proceeding to establish or modify the disclaimant's child support obligation or to establish whether the disclaimant is the biological father or mother of a child. (g) A disclaimer of a power over property that is barred by this section is ineffective. A disclaimer of an interest in property that is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.
(a) Notwithstanding any other provision of this chapter, if, as a result of a disclaimer or transfer, the disclaimed or transferred interest is treated under the provisions of 26 U.S.C. (Internal Revenue Code) as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter. In this section, 26 U.S.C. (Internal Revenue Code) includes 26 U.S.C. as amended, any successor statute to 26 U.S.C. or 26 U.S.C. as amended, and regulations adopted under 26 U.S.C., 26 U.S.C. as amended, and any successor statute to 26 U.S.C. or 26 U.S.C. as amended. (b) A tax-qualified disclaimer under 26 U.S.C. (Internal Revenue Code) is subject to the time limits under 26 U.S.C., as amended, even though time limits are not specified under this chapter.
If an instrument transferring an interest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be filed, recorded, or registered as required or permitted by law. Except as otherwise provided in AS 13.70.100(f)(2), failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.
Except as otherwise provided in AS 13.70.110, an interest in or power over property existing on September 7, 2010 as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after September 7, 2010.
In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
In this chapter, (1) disclaimant means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made; (2) disclaimed interest means the interest that would have passed to the disclaimant had the disclaimer not been made; (3) disclaimer means the refusal to accept an interest in or power over property and includes a renunciation; (4) fiduciary means a personal representative, a trustee, an agent acting under a power of attorney, a guardian, an individual having legal custody of a minor child, or another person authorized to act as a fiduciary with respect to the property of another person; (5) individual having legal custody of a minor child means an individual who, under the law of this state, has legal custody of a minor child as a matter of law or court decree; (6) jointly held property (A) means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property; (B) does not include property held as a tenancy by the entirety; (7) person means an individual, whether the individual is ascertained or unascertained, whether the individual is living or not living, and whatever the basis, including intestacy, for the individual's being entitled to an interest in property; a corporation; a business trust; an estate; a trust; a partnership; a limited liability company; a limited liability partnership; an association; a joint venture; a government; a governmental subdivision, agency, or instrumentality; a public corporation; or any other legal or commercial entity; (8) trust (A) means (i) an express trust, charitable or noncharitable, with additions to the express trust, whenever and however created; and (ii) a trust created under a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust; (B) does not include a constructive trust or a resulting trust.
This chapter may be cited as the Uniform Disclaimer of Property Interests Act.
(a) A person may provide directions for the disposition of the person's remains by placing the directions in a disposition document. The directions may include or be limited to designating an agent to control the disposition of the person's remains. (b) A disposition document must be signed by the person and acknowledged before a notary public, and contain the form and contents required by AS 13.75.030. A disposition document may be a separate document or it may be contained in another document, including a will or prepaid funeral or burial contract. The disposition document may be modified or revoked only by a subsequent disposition document that complies with this subsection.
(a) The following persons, in the priority listed, may control disposition of a decedent's remains: (1) a person designated in a disposition document as the disposition agent for the decedent; (2) a person serving, or nominated by the decedent in the decedent's will to serve, as the personal representative of the decedent's estate, if the person is acting according to the decedent's written instructions contained in the decedent's will; (3) the individual who was the spouse of the decedent at the time of the decedent's death; (4) the sole surviving competent adult child of the decedent, or, if there is more than one surviving competent adult child of the decedent, the majority of the surviving competent adult children; fewer than one-half of the surviving competent adult children may exercise the rights and duties of this section if these surviving adult children use reasonable efforts to notify all other surviving competent adult children that they are exercising these rights and duties and are not aware of any opposition by one-half or more of all of the surviving competent adult children; (5) the surviving competent parents of the decedent; if one of the surviving competent parents is absent, the remaining competent parent may exercise the rights and duties of this section after reasonable efforts have been unsuccessful in locating the absent surviving competent parent; in this paragraph, absent means a person who is unable to communicate decisions or participate in making decisions regarding the disposition of a decedent's remains personally, telephonically, or through electronic communication; (6) the surviving competent adult person in the next degrees of kindred, the two surviving competent adult persons of the same degree of kindred if there are two, or, if there are more than two surviving competent adult persons of the same degree of kindred, the majority of those persons; fewer than the majority of surviving competent adult persons of the same degree of kindred may exercise the rights and duties of this section if those persons use reasonable efforts to notify all other surviving competent adult persons of the same degree of kindred that they are exercising these rights and duties and are not aware of any opposition by one-half or more of all surviving competent adult persons of the same degree of kindred; (7) in the case of an indigent or another individual whose final disposition is the responsibility of the state or a municipality, a public administrator, medical examiner, coroner, or another public official charged with arranging the final disposition of the decedent; or (8) another person who is willing to assume legal and financial responsibility. (b) If a person takes control of the disposition under (a) of this section, the person is liable for the reasonable costs of the disposition if the assets of the estate or other available assets are not adequate to pay the costs of the disposition. (c) In this section, (1) adult means a person who is 18 years of age or older; (2) competent means a person who does not suffer from disabilities that prevent the person from managing the person's property or affairs.
A disposition document must be in substantially the following form:DISPOSITION DOCUMENTYou can select Part 1, Part 2, or both, by completing the part(s) you select, including providing any signatures indicated. Part 3 contains general statements and a place for your signature. You must sign in front of a notary.PART 1. APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS. If you appoint an agent, you and your agent must complete this part as indicated, and the agent must sign this part.I, __________________________________, being of sound mind, wilfully and voluntarily make known my desire that, on my death, the disposition of my remains shall be controlled by __________________________________ (name of agent first named below), and, with respect to that subject only, I appoint that person as my agent. All decisions made by my agent with respect to the disposition of my remains, including cremation, are binding.ACCEPTANCE BY AGENT OF APPOINTMENT.THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS APPOINTMENT, AGREES TO AND ASSUMES THE OBLIGATIONS PROVIDED IN THIS DOCUMENT. AN AGENT MAY SIGN AT ANY TIME, BUT AN AGENT'S AUTHORITY TO ACT IS NOT EFFECTIVE UNTIL THE AGENT SIGNS BELOW TO INDICATE THE ACCEPTANCE OF APPOINTMENT. ANY NUMBER OF AGENTS MAY SIGN, BUT ONLY THE SIGNATURE OF THE AGENT ACTING AT ANY TIME IS REQUIRED.AGENT:Name: ___________________Address: ___________________Telephone Number: ___________________Signature Indicating Acceptance of Appointment:___________________Date of Signature: ___________________SUCCESSORS:If my agent dies, becomes legally disabled, resigns, or refuses to act, I appoint the following persons (each to act alone and successively, in the order named) to serve as my agent to control the disposition of my remains as authorized by this document:(1) First SuccessorName: ___________________Address: ___________________Telephone Number: ___________________Signature Indicating Acceptance of Appointment:___________________Date of Signature: ___________________(2) Second SuccessorName: ___________________Address: ___________________Telephone Number: ___________________Signature Indicating Acceptance of Appointment:___________________Date of Signature: ___________________PART 2. DIRECTIONS FOR THE DISPOSITION OF MY REMAINS.Stated below are my directions for the disposition of my remains:____________________________________________________________________________If the disposition of my remains is by cremation, then (pick one):( ) I do not wish to allow any of my survivors the option of canceling my cremation and selecting alternative arrangements, regardless of whether my survivors consider a change to be appropriate.( ) I wish to allow only the survivors I have designated below to have the option of canceling my cremation and selecting alternative arrangements, if they consider a change to be appropriate:____________________________________________________________________________PART 3. GENERAL PROVISIONS AND SIGNATURE.WHEN DIRECTIONS BECOME EFFECTIVE. The directions, including any appointment of an agent, in this disposition document become effective on my death.REVOCATION OF PRIOR APPOINTMENTS. I revoke any prior appointment of any person to control the disposition of my remains.SIGNATURE OF PERSON MAKING DISPOSITION DOCUMENTSignature: ___________________Date of signature: ___________________(Notary acknowledgment of signature)
The person appointed as an agent in a disposition document may sign the disposition document at any time, but the agent's authority to act is not effective until the agent signs the instrument.
If a person fails to exercise the person's authority to control disposition under AS 13.75.020 within 48 hours after receiving notification of the decedent's death or within 48 hours after the decedent's death, whichever is earlier, the person may not control the disposition of the decedent's remains, and the right to control the disposition of the decedent's remains passes to the person who is next listed in priority under AS 13.75.020. If the person to whom the right to control the disposition passes under this section fails to exercise the person's authority to control the disposition within 48 hours after being notified that the authority to control the disposition has passed to the person, the authority to control the disposition passes to the person who is next listed in priority under AS 13.75.020.
If a person is charged with a felonious killing in connection with a decedent's death and if the funeral director or the cemetery knows about the charge, then the person may not control disposition, and the right to control disposition passes to the person who is next listed in priority under AS 13.75.020.
A person may not authorize cremation for a decedent's remains if a decedent has left directions in a disposition document that the decedent does not wish to be cremated.
(a) The person authorized to control the disposition shall carry out the directions of the decedent to the extent that the decedent's estate or the person is financially able to carry out the directions. (b) Notwithstanding any other provision in AS 13.06 - AS 13.36 (Uniform Probate Code), if a person provides directions in a disposition document that is contained in a will, the directions shall be carried out immediately without the necessity of probate. If the will is not probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been acted on in good faith.
If a person represents that the person knows the identity of a decedent and, with the intent to procure the disposition of the decedent's remains, signs a statement, other than a death certificate, that identifies the decedent, the person guarantees the identity of the decedent and is liable for any damages that result, directly or indirectly, from that guarantee.
(a) A disposition organization is not liable for carrying out the directions of a decedent if the disposition organization carries out the directions of a decedent or a person who establishes that the person is entitled to control the disposition. (b) This section may not be construed to reduce or eliminate the liability of a disposition organization for its negligence or reckless acts.
(a) A person listed in AS 13.75.020 who is involved in a dispute with one or more persons listed in AS 13.75.020 about which of the persons has the authority to control disposition may bring an action in the superior court to resolve the dispute. (b) If there is a dispute with one or more persons listed in AS 13.75.020 about which person has the authority to control disposition, a cemetery organization or funeral establishment is not liable for refusing to accept, to inter, or otherwise to dispose of the decedent's remains until the cemetery organization or funeral establishment receives a court order or another suitable confirmation that the dispute has been resolved.
The disposition of the remains of a member of the organized militia under AS 26.05.262, the disposition of the remains of a member of the armed forces under AS 26.10.065(a), and the disposition of the remains of a member of the United States Coast Guard under AS 26.10.065(b) are exempt from this chapter.
In this chapter, (1) control means the authority to control disposition; (2) directions means (A) instructions for the disposition of a person's remains; (B) the appointment of an agent to handle the disposition of a person's remains; or (C) both (A) and (B) of this paragraph; (3) disposition means disposition of a decedent's remains, including cremation, but does not include an anatomical gift; in this paragraph, anatomical gift has the meaning given in AS 13.52.390; (4) disposition document means a disposition document authorized by AS 13.75.010 (A) in which a person provides directions regarding the disposition of the person's remains; and (B) that complies with AS 13.75.030; (5) disposition organization means (A) a cemetery association formed under AS 10.30.010; (B) a nonprofit cemetery corporation authorized by AS 10.30.055; (C) a person operating a crematory; (D) a person operating a columbarium; (E) a funeral home or other type of funeral establishment; (F) a funeral director or an embalmer.
This chapter may be cited as the Disposition of Human Remains Act.
(a) Notwithstanding other provisions of law, except for AS 13.36.300 and the standards of judgment and care established by law, and subject to any express provision or limitation contained in a particular instrument creating the fiduciary relationship, fiduciaries are authorized to acquire and hold securities of an investment company. (b) Whenever an instrument or power governing a fiduciary relationship directs, requires, authorizes, or permits investment in obligations of the United States government, or its agencies or instrumentalities, the fiduciary may invest in those obligations either directly or in the form of securities of, or other interests in, an investment company if (1) the portfolio of the company is limited to (A) obligations of the United States government, or its agencies or instrumentalities; (B) repurchase agreements fully collateralized by the obligations identified in (A) of this paragraph; and (C) securities of, or other interests in, other investment companies whose portfolios are limited to the obligations and repurchase agreements identified in (A) and (B) of this paragraph; and (2) the investment company takes delivery of the collateral for any repurchase agreement either directly or through an authorized custodian. (c) Under (a) and (b) of this section, if a bank or trust company is the fiduciary, the bank or trust company may invest or reinvest in the securities of an investment company even if the fiduciary or an affiliated bank or trust company provides services to the investment company and the fiduciary or affiliate receives reasonable compensation for the services. Upon request of the person, the fiduciary shall furnish a copy of the prospectus relating to the securities acquired under this subsection to a person to whom a regular periodic accounting is ordinarily rendered under an instrument creating a fiduciary relationship. (d) In this section, (1) affiliated means two or more banks or trust companies in which (A) 25 percent or more of the voting shares, excluding shares owned by the United States or by a corporation or another entity wholly owned by the United States, is directly or indirectly owned or controlled by a holding company; or (B) the election of a majority of the directors is controlled in any manner by a holding company; (2) bank means an organization that is authorized by the United States Comptroller of the Currency, or by the director of banking or the equivalent position in the state of its organization, to accept deposits and to make commercial loans, and whose deposits are insured by the Federal Deposit Insurance Corporation; (3) fiduciary includes guardians and conservators under AS 13.26, persons performing the trustee activities described under AS 06.05.180 whether or not the persons are covered by AS 06.05.180, and other persons acting in a fiduciary capacity; (4) investment company means an open-end or closed-end management type investment company or investment trust registered under 15 U.S.C. 80a-1 - 80a-64 (Investment Company Act of 1940), as that act exists now or as amended in the future; (5) services includes acting as an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, manager, and services related to acting as an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, or manager; (6) trust company means a financial institution, corporation, or other legal entity, authorized to exercise general trust powers, but does not include a natural person.