Sec. 13.06.005. Short title.

AS 13.06 — AS 13.36 shall be known and may be cited as the Uniform Probate Code.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.010. Purposes; rule of construction.

1. AS 13.06  —  AS 13.36 shall be liberally construed and applied to promote their underlying purposes and policies.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.015. Supplementary general principles of law applicable.

Unless displaced by the particular provisions of AS 13.06 — AS 13.36, the principles of law and equity supplement those provisions.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.020. Severability.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.025. Construction against implied repeal.

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 No part of AS 13.06 — AS 13.36 may be impliedly repealed by subsequent legislation if it can reasonably be avoided.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.030. Effect of fraud and evasion; limitations.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.035. Evidence of death or status.

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.

History. (§ 1 ch 78 SLA 1972; am § 1 ch 1 SLA 1987; am § 1 ch 75 SLA 1996)

Editor’s notes. —

Section 19, ch. 75, SLA 1996, provides, in regard to the amendment of this section by § 1, ch. 75, SLA 1996, as follows: “(a) Except as otherwise provided in (b) of this section or in this Act,

“(1) this Act applies to the governing instruments executed by decedents dying on or after January 1, 1997;

“(2) this Act applies to a proceeding in court pending on or begun on or after January 1, 1997, regardless of the time of the death of the decedent, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of the infeasibility of applying the procedures of this Act;

“(3) an act done before January 1, 1997, in any proceeding and an accrued right are not impaired by this Act; if a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that began to run under a statute before January 1, 1997, the provisions of the statute apply to that right on and after January 1, 1997;

“(4) a rule of construction or presumption provided in this Act, applies to governing instruments executed before January 1, 1997, unless there is a clear indication of a contrary intent.

“(b) AS 13.33.301 , 13.33.302 , 13.33.303 , 13.33.304 , 13.33.305 , 13.33.306 , 13.33.307 , 13.33.308 , 13.33.309 , and 13.33.310 , enacted by sec. 12 of this Act, apply to registrations of securities in beneficiary form made before, on, or after January 1, 1997, by decedents dying on or after January 1, 1997.

“(c) In this section, ‘court,’ ‘governing instrument,’ and ‘proceeding’ have the meanings given in AS 13.06.050 , amended by sec. 2 of this Act.”

Sec. 13.06.040. Acts by holder of general power.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.050. General definitions for AS 13.06 — AS 13.36.

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,
    1. to execute or adopt a tangible symbol; or
    2. 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.

History. (§ 1 ch 78 SLA 1972; am § 1 ch 56 SLA 1973; am § 1 ch 154 SLA 1976; am § 3 ch 11 SLA 1990; am § 2 ch 75 SLA 1996; am § 6 ch 33 SLA 1999; am § 2 ch 22 SLA 2001; am § 13 ch 41 SLA 2009; am §§ 1 — 3 ch 50 SLA 2016)

Revisor's notes. —

Paragraphs (14), (15), (40), (41), (46), and (50) were enacted as paragraphs (57) -- (62) and renumbered in 2016 at which time other paragraphs were also renumbered to maintain alphabetical consistency. Also in 2016, in paragraph (12), "AS 13.26.401 " was substituted for "AS 13.26.165 " and in paragraph (14) "AS 13.26.695 " was substituted for "AS 13.26.359" to reflect the renumbering of those sections.

Cross references. —

For provision relating to the applicability of the 2016 amendment to paragraph (1), see sec. 29, ch. 50, SLA 2016, in the 2016 Temporary and Special Acts.

For provision relating to the applicability of the 2016 amendments to paragraphs (46) and (47), see sec. 29, ch. 50, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, rewrote (1); in (46) [now (52)], inserted “the United States Virgin Islands,” following “Puerto Rico”; added (57) – (62) [now (14), (15), (40), (41), and (46)].

Editor’s notes. —

Section 19, ch. 75, SLA 1996, provides, in regard to the amendment of this section by § 2, ch. 75, SLA 1996, as follows: “(a) Except as otherwise provided in (b) of this section or in this Act,

“(1) this Act applies to the governing instruments executed by decedents dying on or after January 1, 1997;

“(2) this Act applies to a proceeding in court pending on or begun on or after January 1, 1997, regardless of the time of the death of the decedent, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of the infeasibility of applying the procedures of this Act;

“(3) an act done before January 1, 1997, in any proceeding and an accrued right are not impaired by this Act; if a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that began to run under a statute before January 1, 1997, the provisions of the statute apply to that right on and after January 1, 1997;

“(4) a rule of construction or presumption provided in this Act, applies to governing instruments executed before January 1, 1997, unless there is a clear indication of a contrary intent.

“(b) AS 13.33.301 , 13.33.302 , 13.33.303 , 13.33.304 , 13.33.305 , 13.33.306 , 13.33.307 , 13.33.308 , 13.33.309 , and 13.33.310 , enacted by sec. 12 of this Act, apply to registrations of securities in beneficiary form made before, on, or after January 1, 1997, by decedents dying on or after January 1, 1997.

“(c) In this section, ‘court,’ ‘governing instrument,’ and ‘proceeding’ have the meanings given in AS 13.06.050 , amended by sec. 2 of this Act.”

Legislative history reports. —

For the purpose of the amendment made to this section by ch. 33, SLA 1999, (CSSB 42(JUD)), see 1999 Senate Journal Supp. No. 5.

Sec. 13.06.060. Applicability.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.065. Subject matter jurisdiction.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.068. Choice of law; validity.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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
      1. that the donor of the power expressly selected in the governing instrument to govern the disposition; or
      2. 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.
8. 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.
9. 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.
10. 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.
11. Notwithstanding the other provisions of AS 13.06 — AS 13.36, the provisions of this section govern in AS 13.06 — AS 13.36.
12. 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.

History. (§ 1 ch 105 SLA 1998)

Sec. 13.06.070. Venue; multiple proceedings; transfer.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.080. Records and certified copies.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.085. Jury trial.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.090. Performance of registrar’s powers.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.100. Oath, affirmation, or statement included in filed documents.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.110. Notice; method and time of giving.

1. 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.
2. The court for good cause shown may provide for a different method or time of giving notice for any hearing.
3. Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.115. Notice; waiver.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.06.120. Pleadings; when parties bound by orders; notice.

1. 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:
      1. 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;
      2. 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;
      3. 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;
      4. 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;
      5. 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;
      6. 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;
      7. 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,
         1. 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;
         2. 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;
         3. 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:
      1. 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;
      2. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 2 ch 82 SLA 2004; am § 1 ch 64 SLA 2010; am §§ 6, 7 ch 45 SLA 2013)

Editor’s notes. —

Section 12(a), ch. 82, SLA 2004, provides that the amendment of this section by § 2, ch. 82, SLA 2004, “applies to a proceeding begun on or after June 18, 2004.”

Sec. 13.12.101. Intestate estate.

1. 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.
2. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.102. Share of spouse.

1. Except as provided in (b) of this section, the intestate share of a decedent’s surviving spouse is
   1. the entire intestate estate if
      1. no descendant or parent of the decedent survives the decedent; or
      2. 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.
2. 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.

History. (§ 3 ch 75 SLA 1996; am § 17 ch 56 SLA 2005)

Sec. 13.12.103. Share of heirs other than surviving spouse.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.104. Requirement that heir survive decedent for 120 hours.

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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.105. No taker.

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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.106. Representation.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.107. Kindred of half blood.

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.108. After-born heirs.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.109. Advancements.

1. 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.
2. 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.
3. 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.

History. (§ 3 ch 75 SLA 1996)

Collateral references. —

3 Am. Jur. 2d, Advancements, § 1 et seq.

23 Am. Jur. 2d, Descent and Distribution, §§ 1, 115, 158, 161, 166.

Decedent’s gift to heir as advancement, 35 Am. Jur. POF2d, pp. 357 — 404.

26A C.J.S., Descent and Distribution, §§ 91 — 115.

Presumption and burden of proof with respect to advancement. 31 ALR2d 1036.

Sec. 13.12.110. Debts to decedent.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.111. Alienage.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.113. Individuals related to decedent through two lines.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.114. Parent and child relationship.

1. 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 .
2. 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.
3. 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.
4. To the extent there is a conflict between this section and either AS 25.20.050 or AS 25.23.130 , this section controls.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.201. Definitions.

1. 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 .
2. 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
      1. an exercise or release of a presently exercisable general power of appointment held by the decedent;
      2. a lapse at death of a presently exercisable general power of appointment held by the decedent; and
      3. an exercise, release, or lapse of
         1. a general power of appointment that the decedent created in the decedent; and
         2. a power described in AS 13.12.205(a)(2)(B) that the decedent conferred on a nonadverse party.

History. (§ 3 ch 75 SLA 1996; am § 2 ch 64 SLA 2010)

Sec. 13.12.202. Elective share.

1. 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.
2. 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).
3. 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.
4. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.203. Composition of the augmented estate.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.204. Decedent’s net probate estate.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.205. Decedent’s nonprobate transfers to others.

1. 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
      1. 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;
      2. 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;
      3. 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;
      4. 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:
      1. 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;
      2. 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:
      1. 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;
      2. 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;
      3. 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.
2. 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) .

History. (§ 3 ch 75 SLA 1996; am § 1 ch 6 SLA 1997; am §§ 3, 4 ch 64 SLA 2010)

Editor’s notes. —

Section 9, ch. 6, SLA 1997 provides that the 1997 amendment to this section “does not apply to a trust unless the trust is created on or after April 2, 1997.”

Sec. 13.12.206. Decedent’s nonprobate transfers to the surviving spouse.

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.

History. (§ 3 ch 75 SLA 1996; am § 5 ch 64 SLA 2010)

Sec. 13.12.207. Surviving spouse’s property and nonprobate transfers to others.

1. 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
      1. the surviving spouse’s fractional interest in property held in joint tenancy with the right of survivorship;
      2. the surviving spouse’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
      3. 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.
2. 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.
3. The value of property included under this section is reduced by enforceable claims against the surviving spouse.

History. (§ 3 ch 75 SLA 1996; am § 6 ch 64 SLA 2010)

Sec. 13.12.208. Exclusions, valuation, and overlapping application.

1. 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.
2. 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).
3. 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.
4. Notwithstanding the other provisions of this section, the value of community property under AS 34.77 is not included in the augmented estate.

History. (§ 3 ch 75 SLA 1996; am § 1 ch 42 SLA 1998)

Revisor’s notes. —

The reference to “AS 34.77” in subsection (d) was substituted for “AS 34.75” in 1998 to reflect the 1998 renumbering of the chapter.

Sec. 13.12.209. Sources from which elective share payable.

1. 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.
2. 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.
3. 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.

History. (§ 3 ch 75 SLA 1996; am § 7 ch 64 SLA 2010)

Sec. 13.12.210. Personal liability of recipients.

1. 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.
2. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.211. Proceeding for elective share; time limit.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.212. Right of election personal to surviving spouse; incapacitated surviving spouse.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.213. Waiver of right to elect and of other rights.

1. 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.
2. 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
      1. was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
      2. 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
      3. did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
3. An issue of unconscionability of a waiver is for decision by the court as a matter of law.
4. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.214. Protection of payors and other third parties.

1. 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.
2. 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.
3. 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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.301. Entitlement of spouse; premarital will.

1. 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.
2. 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 .

History. (§ 3 ch 75 SLA 1996)

Collateral references. —

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage. 38 ALR4th 117.

Sec. 13.12.302. Omitted children.

1. 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:
      1. 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;
      2. 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;
      3. 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;
      4. 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.
2. 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.
3. 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.
4. In satisfying a share provided by (a)(1) of this section, devises made by the will abate under AS 13.16.540 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.401. Applicable law.

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.

History. (§ 3 ch 75 SLA 1996; am § 2 ch 105 SLA 1998)

Sec. 13.12.402. Homestead allowance.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.403. Exempt property.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.404. Family allowance.

1. 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.
2. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.405. Source, determination, and documentation.

1. 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.
2. 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) .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.501. Who may make will.

An individual 18 or more years of age who is of sound mind may make a will.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.502. Execution; witnessed wills; holographic wills.

1. 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.
2. 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.

History. (§ 3 ch 75 SLA 1996; am § 3 ch 105 SLA 1998)

Cross references. —

For a temporary provision allowing witnessing by videoconference of a will signing during the COVID-19 public health disaster emergency declared on March 11, 2020, see § 25, ch. 10, SLA 2020 in the 2020 Temporary and Special Acts.

Sec. 13.12.504. Self-proved will.

1. 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:
2. 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:
3. 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.

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. Testator We, , , 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. Witness Witness State of Judicial District Subscribed, 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)

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State of Judicial District We, , , 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. Testator Witness Witness Subscribed, 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)

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History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.505. Who may witness.

1. An individual generally competent to be a witness may act as a witness to a will.
2. The signing of a will by an interested witness does not invalidate the will or a provision of it.

History. (§ 3 ch 75 SLA 1996)

Collateral references. —

79 Am. Jur. 2d, Wills, § 283 et seq.

94 C.J.S., Wills, §§ 182 — 197.

Competency of named executor as subscribing witness to will. 74 ALR2d 283.

Competency, as witness attesting will, of attorney named therein as executor’s attorney. 30 ALR3d 1361.

Necessity that attesting witness realize instrument was intended as will. 71 ALR3d 877.

Sec. 13.12.506. Choice of law as to execution.

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.

History. (§ 3 ch 75 SLA 1996; am § 4 ch 105 SLA 1998)

Sec. 13.12.507. Revocation by writing or by act.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 3 ch 75 SLA 1996)

Collateral references. —

79 Am. Jur. 2d, Wills, § 498 et seq.

95 C.J.S., Wills, § 262 et seq.

Effect of testator’s attempted physical alteration of will after execution. 24 ALR2d 514.

Implied revocation of will by later will or codicil. 59 ALR2d 11.

Revocation of will as affecting codicil and vice versa. 7 ALR3d 1143.

Revocation of will by nontestamentary writing. 22 ALR3d 1346.

Admissibility of testator’s declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation. 28 ALR3d 994.

Testator’s failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will. 61 ALR3d 958.

Lost instrument: revocation of prior will by revocation clause in lost will or other lost instrument. 31 ALR4th 306.

Sec. 13.12.508. Revocation by change of circumstances.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.509. Revival of revoked will.

1. 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.
2. 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.
3. 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.

History. (§ 3 ch 75 SLA 1996)

Collateral references. —

79 Am. Jur. 2d, Wills, § 684 et seq.

95 C.J.S., Wills, §§ 298 — 303.

Revocation of will as affecting codicil and vice versa. 7 ALR3d 1143.

Sec. 13.12.510. Incorporation by reference.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.511. Testamentary additions to trusts.

1. 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.
2. 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.
3. 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.
4. Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death causes the devise to lapse.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.512. Events of independent significance.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.513. Separate writing identifying devise of certain types of tangible personal property.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.514. Contracts concerning succession.

1. 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.
2. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.515. Deposit of will with court in testator’s lifetime.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.516. Duty of custodian of will; liability.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.517. Penalty clause for contest.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.530. Establishment of will validity before death.

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.

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.535. Establishment of trust validity before death.

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.

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.540. Venue.

1. 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.
2. 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.

History. (§ 8 ch 64 SLA 2010)

Cross references. —

For the effect of this section on Rule 3, Alaska Rules of Civil Procedure, see § 12(b), ch. 64, SLA 2010, in the 2010 Temporary and Special Acts.

Sec. 13.12.545. Contents of petition for will validity.

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.

History. (§ 8 ch 64 SLA 2010)

Cross references. —

For the effect of this section on Rule 8, Alaska Rules of Civil Procedure, see § 12(c), ch. 64, SLA 2010, in the 2010 Temporary and Special Acts.

Sec. 13.12.550. Contents of petition for trust validity.

1. 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.
2. In this section, “party in interest” has the meaning given in AS 13.36.390 .

History. (§ 8 ch 64 SLA 2010; am §§ 39, 40 ch 13 SLA 2019)

Cross references. —

For the effect of this section on Rule 8, Alaska Rules of Civil Procedure, and Rule 1, Alaska Rules of Probate Procedure, see § 12(c) and (d), ch. 64, SLA 2010, in the 2010 Temporary and Special Acts.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in (a)(7), deleted “as defined in AS 13.36.390 ” at the end; added (b).

Sec. 13.12.555. Declaration by court.

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.

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.560. Binding effect of declaration.

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 .

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.565. Hearing and notice.

1. 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 .
2. 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 .
3. 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 .

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.570. Burden of proof.

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.

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.575. Change to will after declaration.

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.

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.580. Change to trust after declaration.

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.

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.585. Confidentiality.

1. 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.
2. 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.
3. 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.

History. (§ 8 ch 64 SLA 2010)

Cross references. —

For the effect of this section on Rule 37.5, Alaska Rules of Administration, see § 12(e), ch. 64, SLA 2010, in the 2010 Temporary and Special Acts.

Sec. 13.12.590. Definitions.

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.

History. (§ 8 ch 64 SLA 2010)

Sec. 13.12.601. Scope.

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.

History. (§ 3 ch 75 SLA 1996; am § 5 ch 105 SLA 1998)

Sec. 13.12.602. Will may pass all property and after-acquired property.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.603. Antilapse; deceased devisee; class gifts.

1. 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.
2. 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.
3. [Repealed, § 103 ch 13 SLA 2019.]
4. 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
      1. a class member if the devise is in the form of a class gift;
      2. 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
      3. 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
       1. is to a descendant of a devisee of a primary devise;
       2. is an alternative devise with respect to the primary devise;
       3. is a devise for which a substitute gift is created; and
       4. 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.

History. (§ 3 ch 75 SLA 1996; am § 11 ch 32 SLA 1997; am §§ 41, 42, 103 ch 13 SLA 2019)

Revisor's notes. —

The paragraphs in subsection (d) were renumbered in 2019 to maintain the definitions in alphabetical order.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in (a)(2), deleted, “In this paragraph, “deceased devisee” means a class member who failed to survive the testator and left one or more surviving descendants;” at the end; repealed (c); added (d)(8) through (12) [now (d)(3), (d)(6), (d)(7), (d)(11) and (d)(12)].

Sec. 13.12.604. Failure of testamentary provision.

1. 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.
2. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.605. Increase in securities; accessions.

1. 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.
2. Distributions in cash before death with respect to a described security are not part of the devise.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.606. Nonademption of specific devises.

1. 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.
2. 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.
3. The right of a specific devisee under (b) of this section is reduced by any right the devisee has under (a) of this section.
4. 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.
5. 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.

History. (§ 3 ch 75 SLA 1996; am § 1 ch 40 SLA 2000)

Sec. 13.12.607. Nonexoneration.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.608. Exercise of power of appointment.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.609. Ademption by satisfaction.

1. 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.
2. 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.
3. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.701. Scope.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.702. Requirement of survival by 120 hours.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

History. (§ 3 ch 75 SLA 1996; am § 1 ch 17 SLA 2000)

Sec. 13.12.703. Choice of law as to meaning and effect of governing instrument.

1. 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.
2. The provisions of (a) of this section are subject to AS 13.06.068 .

History. (§ 3 ch 75 SLA 1996; am § 6 ch 105 SLA 1998)

Sec. 13.12.704. Power of appointment; meaning of specific reference requirement.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.705. Class gifts; terms of relationship.

1. 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.
2. 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.
3. 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.

History. (§ 3 ch 75 SLA 1996)

Collateral references. —

Adopted child as within class named in testamentary gift. 36 ALR5th 395.

Sec. 13.12.706. Life insurance; retirement plan; account with pay on death designation; transfer on death registration; deceased beneficiary.

1. 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.
2. 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
      1. is to a descendant of a beneficiary of the primary beneficiary designation;
      2. is an alternative beneficiary designation with respect to the primary beneficiary designation;
      3. is a beneficiary designation for which a substitute gift is created; and
      4. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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
      1. includes a class member if the beneficiary designation is in the form of a class gift;
      2. 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;
      3. 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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.707. Survivorship with respect to future interests under terms of trust; substitute takers.

1. 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.
2. 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
      1. is to a descendant of a beneficiary of the primary future interest;
      2. is an alternative future interest with respect to the primary future interest;
      3. is a future interest for which a substitute gift is created; and
      4. 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.
3. 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 .
4. 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.
5. 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.
6. 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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.708. Class gifts to “descendants,” “issue,” or “heirs of the body”; form of distribution if none specified.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.709. Distribution by representation, per capita at each generation, and per stirpes.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.710. Worthier-title doctrine abolished.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.711. Interests in heirs and other persons.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.712. Nonademption of specific transfers in trust.

1. 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.
2. 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.
3. The right of a beneficiary under (b) of this section is reduced by any right the beneficiary has under (a) of this section.
4. [Repealed, § 3 ch 36 SLA 2001.]
5. [Repealed, § 3 ch 36 SLA 2001.]

History. (§ 2 ch 40 SLA 2000; am §§ 1 — 3 ch 36 SLA 2001)

Editor’s notes. —

Under § 4, ch. 36, SLA 2001, this section, as amended by §§ 1 - 3, ch. 36, SLA 2001, “applies to a trust instrument, including a conveyance, that is executed on or after August 9, 2000, and to that extent is retroactive under AS 01.10.090 .”

Sec. 13.12.720. Family-owned business deduction.

1. 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).
2. 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.

History. (§ 2 ch 40 SLA 2000)

Editor’s notes. —

26 U.S.C. 2057, cited in (a) of this section, was repealed by P.L. 113-295.

Sec. 13.12.801. Disclaimer of property interests. [Repealed, § 2 ch 63 SLA 2010.]

Sec. 13.12.802. Effect of divorce, annulment, and decree of separation.

1. 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.
2. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.803. Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations.

1. 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.
2. The felonious killing of the decedent
   1. revokes a revocable
      1. disposition or appointment of property made by the decedent to the killer in a governing instrument;
      2. provision in a governing instrument conferring a general or nongeneral power of appointment on the killer; and
      3. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.804. Effect of divorce, annulment, and other changes of circumstances on probate and nonprobate transfers.

1. 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
      1. 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;
      2. 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
      3. 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.
2. 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.
3. 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.
4. 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.
5. A change of circumstances other than as described in this section and in AS 13.12.803 does not effect a revocation.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.907. Honorary trusts; trusts for pets.

1. 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.
2. 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.
3. 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:
      1. as directed in the trust instrument;
      2. 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
      3. 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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.912. International will; validity.

1. 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 .
2. The invalidity of the will as an international will does not affect its formal validity as a will of another kind.
3. 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.

History. (§ 3 ch 75 SLA 1996; am § 7 ch 105 SLA 1998)

Sec. 13.12.913. International will; requirements.

1. 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.
2. 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.
3. 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.
4. 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.
5. The witnesses and the authorized person shall there and then attest the international will by signing in the presence of the testator.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.914. International will; other points of form.

1. 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.
2. 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.
3. 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 .
4. An international will executed in compliance with AS 13.12.913 is not invalid merely because it does not comply with this section.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.915. International will; certificate.

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 wills 2. certify that on (date) at (place) 3. (testator) (name, address, date, and place of birth) in my presence and that of the witnesses 4. (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 EXECUTION 13. DATE 14. SIGNATURE and, if necessary, SEAL * to be completed if appropriate.

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History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.916. International will; effect of certificate.

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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.917. International will; revocation.

An international will is subject to the ordinary rules of revocation of wills.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.918. Source and construction.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.919. Persons authorized to act in relation to international will; eligibility; recognition by authorizing agency.

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.

History. (§ 3 ch 75 SLA 1996)

Sec. 13.12.920. International will information registration.

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.

History. (§ 3 ch 75 SLA 1996)

Revisor’s notes. —

In 1999, “Department of Commerce and Economic Development” was changed to “Department of Community and Economic Development” in accordance with § 88, ch. 58, SLA 1999. In 2004, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

Sec. 13.12.921. Definitions for AS 13.12.912 — 13.12.921.

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 .

History. (§ 3 ch 75 SLA 1996)

Sec. 13.16.005. Devolution of estate at death; restrictions.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.010. Necessity of order of probate for will.

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.

History. (§ 1 ch 78 SLA 1972; am § 4 ch 75 SLA 1996)

Editor’s notes. —

Section 19, ch. 75, SLA 1996, provides, in regard to the amendment of this section by § 4, ch. 75, SLA 1996, as follows: “(a) Except as otherwise provided in (b) of this section or in this Act,

“(1) this Act applies to the governing instruments executed by decedents dying on or after January 1, 1997;

“(2) this Act applies to a proceeding in court pending on or begun on or after January 1, 1997, regardless of the time of the death of the decedent, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of the infeasibility of applying the procedures of this Act;

“(3) an act done before January 1, 1997, in any proceeding and an accrued right are not impaired by this Act; if a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that began to run under a statute before January 1, 1997, the provisions of the statute apply to that right on and after January 1, 1997;

“(4) a rule of construction or presumption provided in this Act, applies to governing instruments executed before January 1, 1997, unless there is a clear indication of a contrary intent.

“(b) AS 13.33.301 , 13.33.302 , 13.33.303 , 13.33.304 , 13.33.305 , 13.33.306 , 13.33.307 , 13.33.308 , 13.33.309 , and 13.33.310 , enacted by sec. 12 of this Act, apply to registrations of securities in beneficiary form made before, on, or after January 1, 1997, by decedents dying on or after January 1, 1997.

“(c) In this section, ‘court,’ ‘governing instrument,’ and ‘proceeding’ have the meanings given in AS 13.06.050 , amended by sec. 2 of this Act.”

Sec. 13.16.015. Necessity of appointment for administration.

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.

History. (§ 1 ch 78 SLA 1972)

Opinions of attorney general. —

A foreign personal representative who has filed an authenticated copy of his letters of appointment with the local court need only present copies of the domiciliary personal representative. August 14, 1985 Op. Att’y Gen.

Sec. 13.16.020. Claims against decedent; necessity of administration.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.025. Proceedings affecting devolution and administration; jurisdiction of subject matter.

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.

History. (§ 1 ch 78 SLA 1972; am § 6 ch 3 SLA 2017)

Effect of amendments. —

The 2017 amendment, effective July 1, 2017, at the end of the first sentence substituted “including those described in this chapter” for “including but not limited to those described in this chapter”, and made a stylistic change.

Sec. 13.16.030. Proceedings within the exclusive jurisdiction of court; service; jurisdiction over persons.

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.

History. (§ 1 ch 78 SLA 1972; am § 11 ch 154 SLA 1976)

Sec. 13.16.035. Scope of proceedings; proceedings independent; exception.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.040. Probate, testacy, and appointment proceedings; ultimate time limit.

1. 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.
2. The limitations in (a) of this section do not apply to proceedings to construe probated wills or determine heirs of an intestate.
3. 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.

History. (§ 1 ch 78 SLA 1972; am § 5 ch 75 SLA 1996)

Editor’s notes. —

Section 19, ch. 75, SLA 1996, provides, in regard to the amendment of this section by § 5, ch. 75, SLA 1996, as follows: “(a) Except as otherwise provided in (b) of this section or in this Act,

“(1) this Act applies to the governing instruments executed by decedents dying on or after January 1, 1997;

“(2) this Act applies to a proceeding in court pending on or begun on or after January 1, 1997, regardless of the time of the death of the decedent, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of the infeasibility of applying the procedures of this Act;

“(3) an act done before January 1, 1997, in any proceeding and an accrued right are not impaired by this Act; if a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that began to run under a statute before January 1, 1997, the provisions of the statute apply to that right on and after January 1, 1997;

“(4) a rule of construction or presumption provided in this Act, applies to governing instruments executed before January 1, 1997, unless there is a clear indication of a contrary intent.

“(b) AS 13.33.301 , 13.33.302 , 13.33.303 , 13.33.304 , 13.33.305 , 13.33.306 , 13.33.307 , 13.33.308 , 13.33.309 , and 13.33.310 , enacted by sec. 12 of this Act, apply to registrations of securities in beneficiary form made before, on, or after January 1, 1997, by decedents dying on or after January 1, 1997.

“(c) In this section, ‘court,’ ‘governing instrument,’ and ‘proceeding’ have the meanings given in AS 13.06.050 , amended by sec. 2 of this Act.”

Sec. 13.16.045. Statutes of limitation on decedent’s cause of action.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.055. Venue for first and subsequent estate proceedings; location of property.

1. 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
      1. property of the decedent was located at the time of death; or
      2. 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.
2. 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.
3. 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.
4. 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.

History. (§ 1 ch 78 SLA 1972; am § 9 ch 64 SLA 2010)

Cross references. —

For the effect of (a)(2) on Rule 3, Alaska Rules of Civil Procedure, see § 12(a), ch. 64, SLA 2010, in the 2010 Temporary and Special Acts.

Sec. 13.16.060. Appointment or testacy proceedings; conflicting claim of domicile in another state.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.065. Priority among persons seeking appointment as personal representative.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

History. (§ 1 ch 78 SLA 1972; am § 11 ch 56 SLA 1973)

Sec. 13.16.070. Demand for notice of order or filing concerning decedent’s estate.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.080. Informal probate or appointment proceedings; application; contents.

1. 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:
      1. a statement of the interest of the applicant;
      2. 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;
      3. if the decedent was not domiciled in the state at the time of death, a statement showing venue;
      4. 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;
      5. 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;
      6. 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:
      1. 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;
      2. that the applicant, to the best of the applicant’s knowledge, believes the will to have been validly executed;
      3. 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:
      1. 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;
      2. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 12 ch 56 SLA 1973; am § 12 ch 154 SLA 1976)

Sec. 13.16.085. Informal probate; duty of registrar; effect of informal probate.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.090. Informal probate; proof and findings required.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

History. (§ 1 ch 78 SLA 1972; am § 6 ch 75 SLA 1996)

Editor’s notes. —

Section 19, ch. 75, SLA 1996, provides, in regard to the amendment of subsection (c) by § 6, ch. 75, SLA 1996, as follows: “(a) Except as otherwise provided in (b) of this section or in this Act,

“(1) this Act applies to the governing instruments executed by decedents dying on or after January 1, 1997;

“(2) this Act applies to a proceeding in court pending on or begun on or after January 1, 1997, regardless of the time of the death of the decedent, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of the infeasibility of applying the procedures of this Act;

“(3) an act done before January 1, 1997, in any proceeding and an accrued right are not impaired by this Act; if a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that began to run under a statute before January 1, 1997, the provisions of the statute apply to that right on and after January 1, 1997;

“(4) a rule of construction or presumption provided in this Act, applies to governing instruments executed before January 1, 1997, unless there is a clear indication of a contrary intent.

“(b) AS 13.33.301 , 13.33.302 , 13.33.303 , 13.33.304 , 13.33.305 , 13.33.306 , 13.33.307 , 13.33.308 , 13.33.309 , and 13.33.310 , enacted by sec. 12 of this Act, apply to registrations of securities in beneficiary form made before, on, or after January 1, 1997, by decedents dying on or after January 1, 1997.

“(c) In this section, ‘court,’ ‘governing instrument,’ and ‘proceeding’ have the meanings given in AS 13.06.050 , amended by sec. 2 of this Act.”

Sec. 13.16.095. Informal probate; unavailable in certain cases.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.100. Informal probate; registrar not satisfied.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.105. Informal probate; notice requirements; information distribution.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 13 ch 154 SLA 1976)

Sec. 13.16.110. Informal appointment proceedings; delay in order; duty of registrar; effect of appointment.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.115. Informal appointment proceedings; determinations required; denial of application.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 13 ch 56 SLA 1973)

Sec. 13.16.120. Informal appointment proceedings; registrar not satisfied.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.125. Informal appointment proceedings; notice requirements.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.130. Informal appointment unavailable in certain cases.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.140. Formal testacy proceedings; nature; when commenced.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.145. Formal testacy or appointment proceedings; petition; contents.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.150. Formal testacy proceeding; notice of hearing on petition.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.155. Formal testacy proceedings; written objections to probate.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.160. Formal testacy proceedings; uncontested cases; hearings and proof.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.165. Formal testacy proceedings; contested cases; testimony of attesting witnesses.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.170. Formal testacy proceedings; burdens in contested cases.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.175. Formal testacy proceedings; will construction; effect of final order in another jurisdiction.

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.

History. (§ 1 ch 78 SLA 1972; am § 8 ch 105 SLA 1998)

Sec. 13.16.180. Formal testacy proceedings; order; foreign will.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.185. Formal testacy proceedings; probate of more than one instrument.

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 .

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.190. Formal testacy proceedings; partial intestacy.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.195. Formal testacy proceedings; effect of order; vacation.

1. 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
      1. unaware of the later-offered will’s existence at the time of the earlier proceeding; or
      2. 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:
      1. 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;
      2. 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
      3. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 7 ch 75 SLA 1996)

Editor’s notes. —

Section 19, ch. 75, SLA 1996, provides, in regard to the amendment of subsection (a) by § 7, ch. 75, SLA 1996, as follows: “(a) Except as otherwise provided in (b) of this section or in this Act,

“(1) this Act applies to the governing instruments executed by decedents dying on or after January 1, 1997;

“(2) this Act applies to a proceeding in court pending on or begun on or after January 1, 1997, regardless of the time of the death of the decedent, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of the infeasibility of applying the procedures of this Act;

“(3) an act done before January 1, 1997, in any proceeding and an accrued right are not impaired by this Act; if a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that began to run under a statute before January 1, 1997, the provisions of the statute apply to that right on and after January 1, 1997;

“(4) a rule of construction or presumption provided in this Act, applies to governing instruments executed before January 1, 1997, unless there is a clear indication of a contrary intent.

“(b) AS 13.33.301 , 13.33.302 , 13.33.303 , 13.33.304 , 13.33.305 , 13.33.306 , 13.33.307 , 13.33.308 , 13.33.309 , and 13.33.310 , enacted by sec. 12 of this Act, apply to registrations of securities in beneficiary form made before, on, or after January 1, 1997, by decedents dying on or after January 1, 1997.

“(c) In this section, ‘court,’ ‘governing instrument,’ and ‘proceeding’ have the meanings given in AS 13.06.050 , amended by sec. 2 of this Act.”

Sec. 13.16.200. Formal testacy proceedings; vacation of order for other cause.

For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.205. Formal proceedings concerning appointment of personal representative.

1. 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.
2. 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 .

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.215. Supervised administration; nature of proceeding.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.220. Supervised administration; petition; order.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.225. Supervised administration; effect on other proceedings.

1. The pendency of a proceeding for supervised administration of a decedent’s estate stays action on any informal application then pending or thereafter filed.
2. 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 .
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.230. Supervised administration; powers of personal representative.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.235. Supervised administration; interim orders; distribution and closing orders.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.245. Qualification.

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.

History. (§ 1 ch 75 SLA 1972)

Collateral references. —

31 Am. Jur. 2d, Executors and Administrators, § 256 et seq.

33 C.J.S., Executors and Administrators, §§ 67, 69.

Disqualification for appointment: adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative. 11 ALR4th 638.

Sec. 13.16.250. Acceptance of appointment; consent to jurisdiction.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.255. Bond required; exceptions.

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.

History. (§ 1 ch 78 SLA 1972; am § 14 ch 56 SLA 1973)

Sec. 13.16.260. Bond amount; security; procedure; reduction.

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.

History. (§ 1 ch 78 SLA 1972; am § 8 ch 75 SLA 1996)

Sec. 13.16.265. Demand for bond by interested person.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.270. Terms and conditions of bonds.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.275. Order restraining personal representative.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.280. Termination of appointment; general.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.285. Termination of appointment; death or disability.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.290. Termination of appointment; voluntary.

1. An appointment of a personal representative terminates as provided in AS 13.16.630 , one year after the filing of a closing statement.
2. An order closing an estate as provided in AS 13.16.620 or 13.16.625 terminates an appointment of a personal representative.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.295. Termination of appointment by removal; cause; procedure.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.300. Termination of appointment; change of testacy status.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.305. Successor personal representative.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.310. Special administrator; appointment.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.315. Special administrator; who may be appointed.

1. 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.
2. In other cases, any proper person may be appointed special administrator.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.320. Special administrator appointed informally; powers and duties.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.325. Special administrator appointed by court; power and 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.330. Termination of appointment; special administrator.

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 .

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.340. Time of accrual of duties and powers.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.345. Priority among different letters.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.350. General duties; standard of care; relation and liability to persons interested in estate; standing to sue.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 75 SLA 1972; am § 1 ch 43 SLA 1998)

Revisor’s notes. —

The reference to “AS 13.36.225 — 13.36.290 ” was substituted for “AS 13.36.200 — 13.36.275 ” in subsection (a) in 1998 to reflect the 1998 renumbering of those sections.

Sec. 13.16.355. Personal representative to proceed without court order; exception.

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.

History. (§ 1 ch 75 SLA 1972)

Sec. 13.16.360. Duty of personal representative; information to heirs and devisees.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.365. Duty of personal representative; inventory and appraisal.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 14 ch 154 SLA 1976)

Sec. 13.16.370. Employment of appraisers.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.375. Duty of personal representative; supplementary inventory.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor’s notes. —

In 2010, “appraisal” was substituted for “appraisement” to correct a manifest error in ch. 78, SLA 1972.

Sec. 13.16.380. Duty of personal representative; possession of estate.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.381. Disposition of unclaimed estate by personal representative.

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.

History. (§ 6 ch 133 SLA 1986)

Revisor’s notes. —

“AS 38.95” was substituted for “AS 38.05” at the end of the section in 1987 to correct a manifest error in the original enactment.

Sec. 13.16.385. Power to avoid transfers.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.390. Powers of personal representatives; in general.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.395. Improper exercise of power; breach of fiduciary duty.

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 .

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.400. Sale, encumbrance, or transaction involving conflict of interest voidable; exceptions.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.405. Persons dealing with personal representative; protection.

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.

History. (§ 1 ch 78 SLA 1972)

Collateral references. —

37 Am. Jur. 2d, Fraudulent Conveyances, § 121.

Sec. 13.16.410. Transactions authorized for personal representatives; exceptions.

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:
   1. 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
   2. 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
    1. 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;
    2. 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
    3. 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.

History. (§ 1 ch 78 SLA 1972; am § 10 ch 64 SLA 2010)

Sec. 13.16.415. Powers and duties of successor personal representative.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.420. Co-representatives; when joint action required.

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.

History. (§ 1 ch 78 SLA 1972; am § 15 ch 56 SLA 1973)

Sec. 13.16.425. Powers of surviving 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.430. Compensation of personal representative.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.435. Expenses in estate litigation.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.440. Review of employment of agents and other persons and compensation of personal representatives and other persons.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.450. Notice to creditors.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.455. Statutes of limitations.

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.

History. (§ 1 ch 78 SLA 1972; am § 15 ch 154 SLA 1976)

Sec. 13.16.460. Limitations on presentation of claims.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.465. Manner of presentation of claims.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.470. Priority of claim payment and preference.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 16 ch 56 SLA 1973; am § 1 ch 115 SLA 1986)

Sec. 13.16.475. Allowance of claims.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.480. Payment of claims.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.485. Individual liability of personal representative.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.490. Secured claims.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.495. Claims not due and contingent or unliquidated claims.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.500. Counterclaims.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.505. Execution and levies prohibited.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.510. Compromise of claims.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.515. Encumbered assets.

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.

History. (§ 1 ch 78 SLA 1972; am § 16 ch 154 SLA 1976)

Sec. 13.16.520. Administration in more than one state; duty of personal representative.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.525. Final distribution to domiciliary representative.

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 .

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.530. Application to trustees.

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 .

History. (§ 1 ch 66 SLA 2006)

Sec. 13.16.535. Successors’ rights if no administration.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.540. Distribution; order in which assets appropriated; abatement.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.545. Right of retainer.

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.

History. (§ 1 ch 78 SLA 1972)

Collateral references. —

31 Am. Jur. 2d, Executors and Administrators, §§ 398, 996 et seq.

59A Am. Jur. 2d, Partition, §§ 46, 47, 103-105.

Personal representative’s right of retainer or setoff, against debtor’s distributive share of estate, of debt barred by statute of limitations. 39 ALR2d 675.

Sec. 13.16.550. Interest on general pecuniary devise. [Repealed, § 4 ch 145 SLA 2003.]

Sec. 13.16.555. Penalty clause for contest.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.560. Distribution in kind; valuation; method.

1. 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
      1. the person entitled to the payment has not demanded payment in cash;
      2. the property distributed in kind is valued at fair market value as of the date of its distribution; and
      3. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 9 ch 75 SLA 1996; am § 5 ch 40 SLA 2000)

Editor’s notes. —

Section 19, ch. 75, SLA 1996, provides, in regard to the amendment of subsection (a) by § 9, ch. 75, SLA 1996, as follows: “(a) Except as otherwise provided in (b) of this section or in this Act,

“(1) this Act applies to the governing instruments executed by decedents dying on or after January 1, 1997;

“(2) this Act applies to a proceeding in court pending on or begun on or after January 1, 1997, regardless of the time of the death of the decedent, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of the infeasibility of applying the procedures of this Act;

“(3) an act done before January 1, 1997, in any proceeding and an accrued right are not impaired by this Act; if a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that began to run under a statute before January 1, 1997, the provisions of the statute apply to that right on and after January 1, 1997;

“(4) a rule of construction or presumption provided in this Act, applies to governing instruments executed before January 1, 1997, unless there is a clear indication of a contrary intent.

“(b) AS 13.33.301 , 13.33.302 , 13.33.303 , 13.33.304 , 13.33.305 , 13.33.306 , 13.33.307 , 13.33.308 , 13.33.309 , and 13.33.310 , enacted by sec. 12 of this Act, apply to registrations of securities in beneficiary form made before, on, or after January 1, 1997, by decedents dying on or after January 1, 1997.

“(c) In this section, ‘court,’ ‘governing instrument,’ and ‘proceeding’ have the meanings given in AS 13.06.050 , amended by sec. 2 of this Act.”

Sec. 13.16.565. Distribution in kind; evidence.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.570. Distribution; right or title of distributee.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.575. Improper distribution; liability of distributee.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.580. Purchasers from distributees protected.

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.

History. (§ 1 ch 78 SLA 1972; am § 17 ch 154 SLA 1976; am § 22 ch 21 SLA 2000; am § 23 ch 35 SLA 2003)

Sec. 13.16.585. Partition for purpose of distribution.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.590. Private agreements among successors to decedent binding on personal representative.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.595. Distributions to trustee.

1. 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 .
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.600. Disposition of unclaimed assets.

1. 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.
2. 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 .

History. (§ 1 ch 78 SLA 1972; am §§ 7, 8 ch 133 SLA 1986)

Sec. 13.16.605. Distribution to person under disability.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.610. Apportionment of estate taxes.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.

History. (§ 1 ch 78 SLA 1972; am § 17 ch 56 SLA 1973)

Revisor’s notes. —

Former subsection (a) of this section was redesignated (p) and reorganized in 1985 to alphabetize the defined terms. Former subsections (b)-(p) were redesignated as (a)-(o).

Sec. 13.16.620. Formal proceedings terminating administration; testate or intestate; order of general protection.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.625. Formal proceedings terminating testate administration; order construing will without adjudicating testacy.

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 .

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.630. Closing estates; by sworn statement of personal representative.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.635. Liability of distributees to claimants.

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.

History. (§ 1 ch 78 SLA 1972; am § 18 ch 154 SLA 1976)

Sec. 13.16.640. Limitations on proceedings against personal representative.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.645. Limitations on actions and proceedings against distributees.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.650. Certificate discharging liens securing fiduciary performance.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.655. Subsequent administration.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.665. Effect of approval of agreements.

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.

History. (§ 1 ch 78 SLA 1972; am § 10 ch 75 SLA 1996)

Collateral references. —

31 Am. Jur. 2d, Executors and Administrators, § 960 et seq.

33 C.J.S., Executors and Administrators, § 827 et seq.

Family settlement of intestate estate. 29 ALR3d 174.

Sec. 13.16.670. Procedure for securing court approval of compromise.

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.

History. (§ 1 ch 78 SLA 1972; am § 11 ch 75 SLA 1996)

Sec. 13.16.680. Collection of personal property by affidavit.

1. 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
      1. vehicles subject to registration under AS 28.10.011 with a total value that does not exceed $100,000; and
      2. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 4 ch 80 SLA 1984; am § 1 ch 100 SLA 2008)

Editor’s notes. —

Section 37(a), ch. 100, SLA 2008, provides that the 2008 amendment of (a) of this section applies “to a decedent if the decedent dies on or after September 15, 2008.”

Sec. 13.16.685. Effect of affidavit.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.690. Small estates; summary administrative procedure.

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 .

History. (§ 1 ch 78 SLA 1972)

Collateral references. —

31 Am. Jur. 2d, Executors and Administrators, §§ 398, 996 et seq.

59 Am. Jur. 2d, Partition, §§ 46, 47, 103 — 105.

34 C.J.S., Executors and Administrators, §§ 482 — 535, 827 — 943.

Sec. 13.16.695. Small estates; closing by sworn statement of personal representative.

1. 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.
2. 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.
3. A closing statement filed under this section has the same effect as one filed under AS 13.16.630 .
4. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.16.700. Settlement directed by court.

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 .

History. (§ 1 ch 78 SLA 1972; am § 5 ch 80 SLA 1984; am § 2 ch 100 SLA 2008)

Effect of amendments. —

The 2008 amendment, effective September 15, 2008, substituted “with property limited to the property described under AS 13.16.680(a)(1) ” for “of $15,000.”

Editor’s notes. —

Section 37(a), ch. 100, SLA 2008, provides that the 2008 amendment of (a) of this section applies “to a decedent if the decedent dies on or after September 15, 2008.”

Sec. 13.16.705. Inheritance of Native corporation stock.

1. 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.
2. 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.
3. 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.
4. 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.
5. The situs of the stock is Alaska.
6. This section applies to stock as long as the stock remains inalienable.
7. 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.

History. (§ 2 ch 70 SLA 1972; am §§ 17, 18 ch 53 SLA 1973; am § 1 ch 83 SLA 1973; am §§ 1, 2 ch 97 SLA 1974; am §§ 2, 3 ch 49 SLA 1991; am §§ 2 — 7 ch 60 SLA 1992; am §§ 18, 19 ch 56 SLA 2005)

Revisor’s notes. —

Enacted as AS 13.30.115. Renumbered in 1972.

Subsection (f) enacted as (g). Relettered in 1992, at which time former subsection (f) was relettered as (g).

Editor’s notes. —

Section 1, ch. 70, SLA 1972, provides: “Purpose. It is the purpose of this Act to implement the Alaska Native Claims Settlement Act (P.L. 92-203; 85 Stat. 688; 43 U.S.C. 1601 et seq.) by amending state law to resolve those ambiguities, conflicts and problems directly or impliedly created by the enactment by Congress of the Alaska Native Claims Settlement Act. It is also the purpose of this Act to complement through state policy, in a reasonable and fair manner, the federal policy expressed in that Act.”

Section 8, ch. 70, SLA 1972, as amended by § 2, ch. 83, SLA 1973, provides: “To the extent of an inconsistency between a provision of this Act or AS 10.05 or AS 10.20 and a provision of the Alaska Native Claims Settlement Act (P.L. 92-203; 85 Stat. 688; 43 U.S.C. 1601 et seq.) or a provision in the articles of incorporation or bylaws required by the U.S. Secretary of the Interior under § 7(e) of the federal Act, the federal Act or the required provision in the articles or bylaws prevails with regard to a corporation organized under Alaska law pursuant to the federal Act. However, nothing in this section or elsewhere in this Act deprives a corporation organized pursuant to § 14(h)(2) or (3) of the federal Act of any benefit provided for in this Act to any other type of corporation organized under Alaska law pursuant to the federal Act. To the extent of an inconsistency between a provision of this Act and a provision of AS 10.05 or AS 10.20, this Act prevails with regard to a corporation organized under Alaska law pursuant to the federal Act.”

Sec. 13.21.005. Definitions.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.21.010. Payment of debts of $2,000 or more and delivery of property worth $2,000 or more without local administration. [Repealed, § 18 ch 56 SLA 1973.]

Sec. 13.21.015. Payment of debt and delivery of property to domiciliary foreign personal representative without local administration.

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.

History. (§ 1 ch 78 SLA 1972; am § 19 ch 56 SLA 1973)

Sec. 13.21.020. Payment or delivery discharges.

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.

History. (§ 1 ch 78 SLA 1972; am § 20 ch 56 SLA 1973)

Sec. 13.21.025. Resident creditor notice.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.21.030. Proof of authority; bond.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.21.035. Powers.

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.

History. (§ 1 ch 78 SLA 1972)

Opinions of attorney general. —

A foreign personal representative who has filed an authenticated copy of his letters of appointment with the local court need only present copies of the domiciliary letters and proof that these were filed with the local court to exercise all of the powers of a domiciliary personal representative. August 14, 1985 Op. Att’y Gen.

Sec. 13.21.040. Power of representatives in transition.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.21.045. Ancillary and other local administrations; provisions governing.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.21.055. Jurisdiction by act of foreign personal representative.

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.

History. (§ 1 ch 78 SLA 1972; am § 21 ch 56 SLA 1973)

Sec. 13.21.060. Jurisdiction by act of decedent.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.21.065. Service on foreign personal representative; time allowed for appearing or responding.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.21.075. Effect of adjudication for or against personal representative.

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.

History. (§ 1 ch 78 SLA 1972)

Sec. 13.26.001. Adoption of standards of practice.

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.

History. (§ 3 ch 84 SLA 2004)

Sec. 13.26.005. Definitions and use of terms.

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.

History. (§ 1 ch 78 SLA 1972; am §§ 1, 2 ch 83 SLA 1981; am § 4 ch 84 SLA 2004)

Revisor’s notes. —

Reorganized in 1985 and 2004 to alphabetize the defined terms.

In 2016, in paragraph (3) “AS 13.26.316(c) ” was substituted for “AS 13.26.150(c)” and in paragraph (10) “AS 13.26.401 ” was substituted for “AS 13.26.165 ” to reflect the renumbering of those sections.

Sec. 13.26.010. Jurisdiction of subject matter; consolidation of proceedings.

1. The court has jurisdiction over protective proceedings and guardianship proceedings.
2. When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.
3. This section is subject to the requirements of AS 13.27 (Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act).

History. (§ 1 ch 78 SLA 1972; am § 13 ch 53 SLA 2008)

Effect of amendments. —

The 2008 amendment, effective September 2, 2008, added subsection (c).

Secs. 13.26.013 — 13.26.020. [Renumbered as AS 13.26.021, 13.26.031 and 13.26.051.]

Sec. 13.26.021. Court records of proceedings; access; sealing.

1. 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.
2. 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.

History. (§ 3 ch 83 SLA 1981; am § 5 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.013 ; renumbered in 2016.

Secs. 13.26.025, 13.26.030. [Renumbered as AS 13.26.041 and 13.26.101.]

Sec. 13.26.031. Facility of payment or delivery.

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.

History. (§ 1 ch 78 SLA 1972; am § 22 ch 56 SLA 1973; am § 6 ch 99 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.015; renumbered in 2016.

Secs. 13.26.035, 13.26.40. [Renumbered as AS 13.26.121 and 13.26.126.]

Sec. 13.26.041. Appointment of a guardian ad litem.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 6 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.025 ; renumbered in 2016 at which time in subsection (a) “AS 13.26.201 — 13.26.580 ” was substituted for “AS 13.26.090 — 13.26.320 ” to reflect the renumbering of those sections.

Secs. 13.26.045, 13.26.050. [Renumbered as AS 13.26.132, and 13.26.137.]

Sec. 13.26.051. Delegation of powers over incapacitated adult by parent or guardian.

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.

History. (§ 1 ch 78 SLA 1972; am § 1 ch 28 SLA 2016)

Revisor's notes. —

Formerly AS 13.26.020; renumbered in 2016.

Effect of amendments. —

The 2016 amendment, effective September 20, 2016, substituted “an adult incapacitated person” for “a minor or incapacitated person” and “adult incapacitated person” for “minor child or ward, except the power to consent to marriage or adoption of a minor ward”.

Secs. 13.26.055 — 13.26.065. [Renumbered as AS 13.26.143, 13.26.147, 13.26.153, 13.26.157, and 13.26.162.]

Sec. 13.26.066. Delegation of powers over minor child.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. To designate an attorney-in-fact, a parent or guardian shall execute a power of attorney that is in substantially the following form:
7. 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.
8. 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.
9. 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.
10. 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
       1. the armed forces of the United States;
       2. a reserve component of the armed forces of the United States;
       3. the National Oceanic and Atmospheric Administration Commissioned Officer Corps or the United States Public Health Service Commissioned Corps, if the member is
          1. assigned by proper authority to duty with the armed forces of the United States; or
          2. 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.

TO DELEGATE THE POWERS OF A PARENT OR GUARDIAN STATUTORY FORM FOR POWER OF ATTORNEY 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. OR Section 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. OR Section 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 District ACKNOWLEDGMENT Before 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:

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History. (§ 2 ch 28 SLA 2016)

Revisor's notes. —

Enacted as AS 13.26.023; renumbered in 2016 at which time an internal reference was also conformed.

Effective dates. —

Section 2, ch. 28, SLA 2016, which enacted this section, took effect on September 20, 2016.

Secs. 13.26.070 — 13.26.100. [Renumbered as AS 13.26.167, 13.26.171, 13.26.181, 13.26.186, 13.26.201, 13.26.211, and 13.26.216.]

Sec. 13.26.101. Status of guardian of minor; general.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.030; renumbered in 2016.

Secs. 13.26.105 — 13.26.109. [Renumbered as AS 13.26.221, 13.26.226, 13.26.231, 13.26.236, and 13.26.241.]

Sec. 13.26.110. Findings; order of appointment. [Repealed, § 21 ch 83 SLA 1981. For current law see AS 13.26.266.]

Sec. 13.26.111. [Renumbered as AS 13.26.246.]

Sec. 13.26.112. Appointment of a guardian ad litem. [Repealed, § 31 ch 84 SLA 2004. For current law see AS 13.26.041.]

Secs. 13.26.113 — 13.26.120. [Renumbered as AS 13.26.251, 13.26.256, 13.26.261, 13.26.266, 13.26.271, 13.26.276, and 13.26.281.]

Sec. 13.26.121. Testamentary appointment of guardian of minor.

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.

History. (§ 1 ch 78 SLA 1972; am § 23 ch 56 SLA 1973)

Revisor's notes. —

Formerly AS 13.26.035 ; renumbered in 2016 at which time “AS 13.26.126 ” was substituted for “AS 13.26.040” to reflect the renumbering of that section.

Sec. 13.26.125. [Renumbered as AS 13.26.286.]

Sec. 13.26.126. Objection by minor of 14 or older to testamentary appointment.

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.

History. (§ 1 ch 78 SLA 1972; am § 24 ch 56 SLA 1973)

Revisor's notes. —

Formerly AS 13.26.040; renumbered in 2016.

Sec. 13.26.130. Visitor in guardianship proceeding. [Repealed, § 21 ch 83 SLA 1981. For current law see AS 13.26.226 and 13.26.236.]

Sec. 13.26.131. [Renumbered as AS 13.26.291.]

Sec. 13.26.132. Court appointment of guardian of minor; conditions for appointment.

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.

History. (§ 1 ch 78 SLA 1972; am § 25 ch 56 SLA 1973)

Revisor's notes. —

Formerly AS 13.26.045 ; renumbered in 2016 at which time “AS 13.26.121 ” was substituted for “AS 13.26.035 ” and “AS 13.26.126 ” was substituted for “AS 13.26.040”.

Sec. 13.26.135. [Renumbered as AS 13.26.296.]

Sec. 13.26.137. Venue for proceedings.

1. The venue for guardianship proceedings for a minor is in the place where the minor resides or is present.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 2 ch 6 4SSLA 2016)

Revisor's notes. —

Formerly AS 13.26.050; renumbered in 2016.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, added (b).

Editor's notes. —

Under sec. 18, ch. 6, 4SSLA 2016, subsection (b) applies “to proceedings for adoption or legal guardianship of a child in state custody under AS 47.10 filed on or after January 1, 2017.”

Secs. 13.26.140, 13.26.141. [Renumbered as AS 13.26.301 and 13.26.306.]

Sec. 13.26.143. Court appointment of guardian of minor; qualifications; priority of minor’s nominee and adult family member.

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 .

History. (§ 1 ch 78 SLA 1972; am § 1 ch 64 SLA 2005)

Revisor's notes. —

Formerly AS 13.26.055 ; renumbered in 2016.

Effect of amendments. —

The 2005 amendment, effective July 1, 2005, in the first sentence substituted “adult” for “person” and added “and is consistent with a priority given to an adult family member” at the end of the sentence, and added the last sentence.

Opinions of attorney general. —

The court has broad discretion in the appointment of a guardian. 1959 Alas. Op. Att'y Gen. No. 25.

Mental Health Division cannot assume duties and responsibilities of court-appointed general guardian. 1959 Alas. Op. Att'y Gen. No. 25.

Sec. 13.26.145. [Renumbered as AS 13.26.311.]

Secs. 13.26.147 Court appointment of guardian of minor; procedure.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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 .

History. (§ 1 ch 78 SLA 1972; am § 3 ch 6 4SSLA 2016)

Revisor's notes. —

Formerly AS 13.26.060; renumbered in 2016 at which time in subsection (b) “AS 13.26.132 ” was substituted for “AS 13.26.045 ” and in subsection (e) “AS 13.26.137(b) ” was substituted for “AS 13.26.050(b)”.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, added (e).

Editor's notes. —

Under sec. 18, ch. 6, 4SSLA 2016, subsection (e) applies “to proceedings for adoption or legal guardianship of a child in state custody under AS 47.10 filed on or after January 1, 2017.”

Sec. 13.26.150. [Renumbered as AS 13.26.316.]

Sec. 13.26.153. Subsidized guardianship; procedure.

Procedures relating to subsidized guardianships for hard-to-place children are governed by AS 25.23.200 — 25.23.240 .

History. (§ 1 ch 204 SLA 1990)

Revisor's notes. —

Formerly AS 13.26.062; renumbered in 2016.

Administrative Code. —

For hearings, see 7 AAC 49.

For subsidized adoption and subsidized guardianship payments, see 7 AAC 53, art. 2.

Sec. 13.26.155. Proceedings subsequent to appointment; venue. [Repealed, § 31 ch 53 SLA 2008.]

Sec. 13.26.157. Guardianship after voluntary relinquishment; procedure.

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.

History. (§ 2 ch 64 SLA 2005)

Revisor's notes. —

Formerly AS 13.26.064; renumbered in 2016.

Editor’s notes. —

Section 60(a), ch. 64, SLA 2005, provides that the 2005 enactment of this section has the effect of amending Rules 14 and 15, Alaska Rules of Probate Procedure, by providing that retained privileges be set out in the guardianship decree and by providing additional procedures related to a voluntary relinquishment of parental rights.

Sec. 13.26.162. Consent to service by acceptance of appointment; notice; letters of guardianship requirement.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.065; renumbered in 2016.

Sec. 13.26.165. [Renumbered as AS 13.26.401.]

Sec. 13.26.167. Powers and duties of guardian of minor.

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.

History. (§ 1 ch 78 SLA 1972; am § 26 ch 56 SLA 1973)

Revisor's notes. —

Formerly AS 13.26.070 ; renumbered in 2016 at which time “AS 13.26.031 ” was substituted for “AS 13.26.015”.

Opinions of attorney general. —

Mental Health Division cannot assume duties and responsibilities of court-appointed general guardian. 1959 Alas. Op. Att'y Gen. No. 25.

Sec. 13.26.170. [Renumbered as AS 13.26.406.]

Sec. 13.26.171. Termination of appointment of guardian; general.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.075; renumbered in 2016.

Secs. 13.26.175, 13.26.180. [Renumbered as AS 13.26.411 and 13.26.415.]

Sec. 13.26.181. Proceedings subsequent to appointment; venue.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.080; renumbered in 2016.

Sec. 13.26.185. [Renumbered as AS 13.26.420.]

Sec. 13.26.186. Resignation or removal proceedings; appointment of attorney for minor.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.085; renumbered in 2016.

Secs. 13.26.190 — 13.26.200. [Renumbered as AS 13.26.425 — 13.26.435.]

Sec. 13.26.201. Purpose and basis for guardianship.

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.

History. (§ 4 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.090; renumbered in 2016.

Opinions of attorney general. —

The judicial determination of unsoundness of mind necessary to disqualify a mentally impaired individual from voting must be specifically raised in a guardianship hearing or raised in a separate proceeding. Division personnel could initiate such a proceeding. However, in the absence of implementing regulations, it is unlikely that the division would choose to do so. August 28, 1992 Op. Att’y Gen.

Secs. 13.26.205 — 13.26.210. [Renumbered as AS 13.26.440 — 13.26.465.]

Sec. 13.26.211 Testamentary appointment of guardian for incapacitated person.

1. 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.
2. 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.
3. This state recognizes a testamentary appointment effected by filing acceptance under a will probated at the testator’s domicile in another state.
4. 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 .
5. 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 .

History. (§ 1 ch 78 SLA 1972; am § 5 ch 83 SLA 1981; am § 14 ch 53 SLA 2008)

Revisor's notes. —

Formerly AS 13.26.095; renumbered in 2016 at which time “AS 13.26.216 — 13.26.316 ” was substituted for “AS 13.26.100 — 13.26.150 ” and “AS 13.26.286 ” was substituted for “AS 13.26.125 ”.

Sec. 13.26.215. [Renumbered as AS 13.26.470.]

Sec. 13.26.216. Venue.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.100; renumbered in 2016.

Sec. 13.26.220. [Renumbered as AS 13.26.475.]

Sec. 13.26.221. Petition.

1. Any person may petition the court for a finding of incapacity and the appointment of a guardian for oneself or for another person.
2. 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.
3. 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.
4. [Repealed, § 31 ch 84 SLA 2004.]

History. (§ 1 ch 78 SLA 1972; am § 6 ch 83 SLA 1981; am § 23 ch 21 SLA 2000; am § 31 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.105 ; renumbered in 2016 at which time "AS 13.26.301 " was substituted for "AS 13.26.140 ".

Sec. 13.26.225. [Renumbered as AS 13.26.480.]

Sec. 13.26.226. Initial court procedures.

1. 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.
2. 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.
3. 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.
4. Appointment of the visitor and the expert under (c) of this section shall be made through the office of public advocacy (AS 44.21.400 ) under AS 13.26.291 .

History. (§ 7 ch 83 SLA 1981; am §§ 3, 4 ch 55 SLA 1984)

Revisor's notes. —

Formerly AS 13.26.105 ; renumbered in 2016 at which time “AS 13.26.291 ” was substituted for “AS 13.26.131 ” in subsections (b) and (d).

Sec. 13.26.230. [Renumbered as AS 13.26.485.]

Sec. 13.26.231. Notice of rights of respondent.

1. 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:
      1. the respondent may communicate with an attorney or an expert in the field of the alleged incapacity before proceeding with the interview;
      2. 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
      3. 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.
2. A substantive interview of the respondent or other investigation may not be conducted until the provisions of (a) of this section are satisfied.

History. (§ 7 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.107; renumbered in 2016.

Sec. 13.26.235. [Renumbered as AS 13.26.490.]

Sec. 13.26.236. Visitor’s report.

1. 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.
2. 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.
3. 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
      1. was supplied by the person described in (6) of this subsection; and
      2. 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.
4. 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.
5. 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.

History. (§ 7 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.108; renumbered in 2016.

Sec. 13.26.240. [Renumbered as AS 13.26.495.]

Sec. 13.26.241. Evaluations; right to remain silent; respondent’s attorney or expert.

1. 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.
2. 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.
3. 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.
4. 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) .

History. (§ 7 ch 83 SLA 1981; am §§ 15 — 17 ch 53 SLA 2008)

Revisor's notes. —

Formerly AS 13.26.109; renumbered in 2016 at which time “AS 13.26.201 — 13.26.316 ” was substituted for “AS 13.26.090 — 13.26.150 ” in four places and “AS 13.26.226(c) ” was substituted for “AS 13.26.106(c)”.

Sec. 13.26.245. [Renumbered as AS 13.26.500.]

Sec. 13.26.246. Duties and powers of attorney of ward or respondent.

1. 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.
2. 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.

History. (§ 7 ch 83 SLA 1981; am § 7 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.111 ; renumbered in 2016 at which time “AS 13.26.041 ” was substituted for “AS 13.26.025 ”.

Sec. 13.26.250. [Renumbered as AS 13.26.505.]

Sec. 13.26.251. Hearing and determination.

1. 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.
2. 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) .
3. 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.
4. 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.
5. 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.
6. 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.
7. If it is necessary to appoint a guardian, the court shall consider the ward’s preference.
8. 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.

History. (§ 7 ch 83 SLA 1981; am § 18 ch 53 SLA 2008)

Revisor’s notes. —

Formerly AS 13.26.113 ; renumbered in 2016 at which time “AS 13.26.226 ” was substituted for “AS 13.26.106” and “AS 13.26.226(c) ” was substituted for “AS 13.26.106(c)”.

Sec. 13.26.255. [Renumbered as AS 13.26.510.]

Sec. 13.26.256. Psychotropic medication influencing wards or respondents at judicial hearings.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 7 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.114; renumbered in 2016.

Secs. 13.26.257, 13.26.260. [Renumbered as AS 13.26.515 and 13.26.520.]

Sec. 13.26.261. Acceptance of appointment; consent to jurisdiction.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.115; renumbered in 2016.

Sec. 13.26.265. [Renumbered as AS 13.26.525.]

Sec. 13.26.266. Guardianship order.

1. 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.
2. 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:
      1. the wishes of the ward;
      2. the preferability of allowing the ward to retain local community ties; and
      3. 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.
3. 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.
4. 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.

History. (§ 7 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.116; renumbered in 2016.

Sec. 13.26.270. [Renumbered as AS 13.26.530.]

Sec. 13.26.271. Guardianship implementation report.

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.

History. (§ 7 ch 83 SLA 1981; am § 8 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.117; renumbered in 2016.

Sec. 13.26.275. [Renumbered as AS 13.26.535.]

Sec. 13.26.276. Other reports.

1. 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.
2. 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.
3. 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.

History. (§ 7 ch 83 SLA 1981; am §§ 9, 10 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.118; renumbered in 2016.

Sec. 13.26.280. [Renumbered as AS 13.26.540.]

Sec. 13.26.281. Termination of guardianship for incapacitated person.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972; am § 27 ch 56 SLA 1973; am § 8 ch 83 SLA 1981; am § 11 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.120; renumbered in 2016 at which time “AS 13.26.286 ” was substituted for “AS 13.26.125 ”.

Editor’s notes. —

Section 32(b), ch. 84, SLA 2004, provides that (b) of this section “has the effect of changing Rule 16(f), Alaska Rules of Probate Procedure, by giving guardians additional authority to perform certain acts for a deceased ward.”

Sec. 13.26.285. [Renumbered as AS 13.26.545.]

Sec. 13.26.286. Removal or resignation of guardian; change in or termination of guardianship.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

History. (§ 1 ch 78 SLA 1972; am § 9 ch 83 SLA 1981; am § 12 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.125 ; renumbered in 2016.

Sec. 13.26.290. [Renumbered as AS 13.26.550.]

Sec. 13.26.291. Costs in guardianship proceedings.

1. Subject to (d) of this section, the state shall bear the costs of the visitor and expert appointed under AS 13.26.226(c) .
2. 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.
3. 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.
4. 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.

History. (§ 7 ch 83 SLA 1981; am § 13 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.131 ; renumbered in 2016 at which time “ AS 13.26.226(c) ” was substituted for “ AS 13.26.106(c)”, “ AS 13.26.226(b) ” was substituted for “ AS 13.26.106(b)”, “ AS 13.26.241(d) ” was substituted for “ AS 13.26.109(d)”, and “ AS 13.26.041 ” was substituted for “ AS 13.26.025 ”.

Sec. 13.26.295. [Renumbered as AS 13.26.555.]

Sec. 13.26.296. Notices in guardianship proceedings.

1. 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.
2. 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 .
3. 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.

History. (§ 1 ch 78 SLA 1972; am § 10 ch 83 SLA 1981; am § 24 ch 21 SLA 2000; am § 31 ch 84 SLA 2004; am § 19 ch 53 SLA 2008)

Revisor's notes. —

Formerly AS 13.26.135 ; renumbered in 2016 at which time “AS 13.26.231 ” was substituted for “AS 13.26.107”.

Sec. 13.26.300. [Renumbered as AS 13.26.560.]

Sec. 13.26.301. Temporary guardians; authorization of services.

1. 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.
2. At the temporary guardianship hearing, the respondent shall have the rights set out in AS 13.26.251(a) .
3. The burden of proof at the hearing shall be by clear and convincing evidence and shall be upon the petitioner.
4. 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.
5. 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.
6. 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.

History. (§ 1 ch 78 SLA 1972; am § 11 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.140 ; renumbered in 2016 at which time “AS 13.26.251(a) ” was substituted for “AS 13.26.113(a)”.

Publisher’s note. —

In 2021 a correction was made to the history.

Sec. 13.26.305. [Renumbered as AS 13.26.565.]

Sec. 13.26.306. Emergency powers.

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.

History. (§ 12 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.141; renumbered in 2016.

Sec. 13.26.310. [Renumbered as AS 13.26.570.]

Sec. 13.26.311. Who may be guardian; priorities.

1. The court may appoint a competent person, including a private professional guardian, or the public guardian, as the guardian of an incapacitated person.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

History. (§ 1 ch 78 SLA 1972; am § 13 ch 83 SLA 1981; am §§ 14 — 18 ch 84 SLA 2004; am § 20 ch 53 SLA 2008)

Revisor's notes. —

Formerly AS 13.26.145 ; renumbered in 2016.

Sec. 13.26.315. [Renumbered as AS 13.26.575.]

Sec. 13.26.316. General powers and duties of guardian.

1. 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.
2. A partial guardian of an incapacitated person has only the powers and duties respecting the ward enumerated in the court order.
3. 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 .
4. 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.
5. 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.

History. (§ 1 ch 78 SLA 1972; am § 28 ch 56 SLA 1973; am § 14 ch 83 SLA 1981; am § 1 ch 126 SLA 1986; am § 19 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.150 ; renumbered in 2016 at which time “AS 13.26.401 — 13.26.575 ” was substituted for “AS 13.26.165 — 13.26.315 ”.

Opinions of attorney general. —

The judicial determination of unsoundness of mind necessary to disqualify a mentally impaired individual from voting must be specifically raised in a guardianship hearing or raised in a separate proceeding. Division personnel initiate such a proceeding. However, in the absence of implementing regulations, it is unlikely that the division would choose to do so. August 28, 1992 Op. Att’y Gen.

Secs. 13.26.320, 13.26.324. [Renumbered as AS 13.26.580 and 13.26.595.]

Secs. 13.26.325, 13.26.330. Death or disability. [Repealed, § 3 ch 109 SLA 1988.]

Secs. 13.26.332 — 13.26.353. [Renumbered as AS 13.26.645 — 13.26.680.]

Secs. 13.26.356, 13.26.358. [Renumbered as AS 13.26.625 and 13.26.630.]

Secs. 13.26.360 — 13.26.400. [Renumbered as AS 13.26.700 — 13.26.740.]

Sec. 13.26.401. Protective proceedings.

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
   1. a minor owns money or property that requires management or protection that cannot otherwise be provided;
   2. the minor has or may have business affairs that may be jeopardized or prevented by the status of being a minor; or
   3. 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
   1. 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
   2. 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.

History. (§ 1 ch 78 SLA 1972; am § 6 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.165 ; renumbered in 2016 at which time “AS 13.26.401 — 13.26.575 ” was substituted for “AS 13.26.165 — 13.26.315 ”.

Sec. 13.26.406. Protective proceedings; jurisdiction of affairs of protected persons.

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.

History. (§ 1 ch 78 SLA 1972; am § 21 ch 53 SLA 2008)

Revisor's notes. —

Formerly AS 13.26.170 ; renumbered in 2016.

Sec. 13.26.410. [Renumbered as AS 13.26.750.]

Sec. 13.26.411. Venue.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.175 ; renumbered in 2016 at which time “AS 13.26.401 — 13.26.575 ” was substituted for “AS 13.26.165 — 13.26.315 ”.

Sec. 13.26.415. Original petition for appointment or protective order.

1. 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 and Social Services, 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972; am §§ 7, 8 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.180; renumbered in 2016 at which time “AS 13.26.445 ” was substituted for “AS 13.26.206”.

Sec. 13.26.420. Notice.

1. 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.
2. 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 .
3. 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 .

History. (§ 1 ch 78 SLA 1972; am § 22 ch 53 SLA 2008; am § 9 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.185 ; renumbered in 2016 at which time “AS 13.26.425 ” was substituted for “AS 13.26.190 ”, “AS 13.26.450 ” was substituted for “AS 13.26.207”, and “AS 13.26.455 ” was substituted for “AS 13.26.208”.

Sec. 13.26.425. Protective proceedings; request for notice; interested person.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.190 ; renumbered in 2016.

Sec. 13.26.430. Procedure concerning hearing and order on original petition.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 1 ch 78 SLA 1972; am § 15 ch 83 SLA 1981; am § 20 ch 84 SLA 2004)

Revisor’s notes. —

Reorganized in 1972.

Formerly AS 13.26.195; renumbered in 2016 at which time “AS 13.26.440(c) ” was substituted for “AS 13.26.205(c)”.

Sec. 13.26.435. Permissible court orders.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.200; renumbered in 2016.

Sec. 13.26.440. Protective arrangements and single transactions authorized.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972; am § 16 ch 83 SLA 1981)

Revisor's notes. —

Formerly AS 13.26.205 ; renumbered in 2016 at which time “AS 13.26.401 ” was substituted for “AS 13.26.165 ”.

Sec. 13.26.445. Temporary conservators.

1. 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.
2. 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.
3. 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.

History. (§ 10 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.206; renumbered in 2016.

Cross references. —

For effect of this section on Rule 77, Alaska Rules of Civil Procedure, see § 48(c), ch. 71, SLA 2012 in the 2012 Temporary and Special Acts.

Sec. 13.26.450. Ex parte protective orders.

1. 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.
2. 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.
3. 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.

History. (§ 10 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.207; renumbered in 2016 at which time “AS 13.26.415(a) ” was substituted for “AS 13.26.180(a)” and “AS 13.26.435 ” was substituted for “AS 13.26.200”.

Cross references. —

For effect of this section on Rule 17, Alaska Rules of Probate Procedure, see § 48(a), ch. 71, SLA 2012 in the 2012 Temporary and Special Acts.

Sec. 13.26.455. Temporary protective orders; conversions.

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.

History. (§ 10 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.208; renumbered in 2016 at which time “AS 13.26.450 ” was substituted for “AS 13.26.207”.

Cross references. —

For effect of this section on Rule 17, Alaska Rules of Probate Procedure, and Rule 77, Alaska Rules of Civil Procedure, see § 48(a) and (d), ch. 71, SLA 2012 in the 2012 Temporary and Special Acts.

Sec. 13.26.460. Protective orders; modification; third-party compliance; forms; fees.

1. 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.
2. 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.
3. 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.
4. 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 .
5. A protective order issued under AS 13.26.450 — 13.26.460 is in addition to any other civil or criminal remedy.
6. 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.
7. The Alaska Court System, after consulting with the Department of Health and Social Services, 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.
8. 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) .

History. (§ 10 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.209; renumbered in 2016 at which time numerous cross references to other renumbered sections were conformed.

Cross references. —

For effect of this section on Rule 17, Alaska Rules of Probate Procedure, Rule 9, Alaska Rules of Administration, and Rule 77, Alaska Rules of Civil Procedure, see § 48(a), (b), and (e), ch. 71, SLA 2012 in the 2012 Temporary and Special Acts.

Sec. 13.26.465. Who may be appointed conservator; priorities.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

History. (§ 1 ch 78 SLA 1972; am § 21 ch 84 SLA 2004; am § 20 ch 56 SLA 2005; am §§ 23, 24 ch 53 SLA 2008)

Revisor's notes. —

Formerly AS 13.26.210; renumbered in 2016.

Sec. 13.26.470. Bond.

1. 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.
2. If the public guardian is appointed as a conservator, the court may not require a bond under this section.
3. 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.

History. (§ 1 ch 78 SLA 1972; am § 17 ch 83 SLA 1981)

Revisor’s notes. —

Subsections (b) and (c) enacted as AS 13.26.218. Renumbered in 1981.

Formerly AS 13.26.215 ; renumbered in 2016. Subsections (b) and (c) were originally enacted as AS 13.26.218, and renumbered as former AS 13.26.215 (b) and (c) in 1981.

Sec. 13.26.475. Terms and requirements of bonds.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.220 ; renumbered in 2016 at which time “AS 13.26.470 ” was substituted for “AS 13.26.215 ”.

Sec. 13.26.480. Acceptance of appointment; consent to jurisdiction; notice.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.225 ; renumbered in 2016.

Sec. 13.26.485. Compensation and expenses.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.230 ; renumbered in 2016.

Sec. 13.26.490. Death, resignation, or removal of conservator.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.235 ; renumbered in 2016.

Sec. 13.26.495. Petitions for orders subsequent to appointment.

1. 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.
2. A conservator may petition the appointing court for instructions concerning the fiduciary responsibility of the conservator.
3. Upon notice and hearing, the court may give appropriate instructions or make any appropriate order.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.240 ; renumbered in 2016.

Sec. 13.26.500. General duty of conservator.

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 .

History. (§ 1 ch 78 SLA 1972; am § 2 ch 43 SLA 1998)

Revisor’s notes. —

The reference to “AS 13.36.225 — 13.36.290 ” was substituted for “AS 13.36.200 — 13.36.275 ” in 1998 to reflect the 1998 renumbering of those sections.

Formerly AS 13.26.245 ; renumbered in 2016.

Sec. 13.26.505. Inventory, implementation report, and records.

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.

History. (§ 1 ch 78 SLA 1972; am § 22 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.250 ; renumbered in 2016.

Editor’s notes. —

Section 32(c), ch. 84, SLA 2004, provides that this section “as amended by sec. 22 of this Act, has the effect of changing Rule 17(e), Alaska Rules of Probate Procedure, by changing when a report is due and by adding additional material to be included in the report.”

Sec. 13.26.510. Accounts.

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.

History. (§ 1 ch 78 SLA 1972; am § 23 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.255 ; renumbered in 2016.

Sec. 13.26.515. Visitor reports.

1. 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
      1. was supplied by the person described in (6) of this subsection; and
      2. 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
       1. potential conservators;
       2. the specific services necessary and available to protect the proposed protected person from serious damage to the proposed protected person’s property and affairs;
       3. the means by which the services described in (B) of this paragraph may be financed;
       4. the specific, least restrictive authority needed by the conservator to provide the services described in (B) of this paragraph.
2. 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.
3. 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.
4. 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.

History. (§ 24 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.257 ; renumbered in 2016 at which time “AS 13.26.430(b) ” was substituted for “AS 13.26.195(b)”.

Sec. 13.26.520. Conservators; title by appointment.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.260; renumbered in 2016.

Sec. 13.26.525. Recording of conservator’s letters.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Formerly AS 13.26.265 ; renumbered in 2016.

Cross references. —

For recording laws, see AS 40.17.

Sec. 13.26.530. Sale, encumbrance, or transaction involving conflict of interest voidable.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.270 ; renumbered in 2016.

Sec. 13.26.535. Persons dealing with conservators; protection.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.275 ; renumbered in 2016 at which time “AS 13.26.435 ” was substituted for “AS 13.26.200” and “AS 13.26.550 ” was substituted for “AS 13.26.290 ”.

Sec. 13.26.540. Powers of conservator in administration.

1. 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 .
2. A conservator has power without court authorization or confirmation, to invest and reinvest funds of the estate as would a trustee.
3. 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.

History. (§ 1 ch 78 SLA 1972; am §§ 29, 30 ch 56 SLA 1973; am § 7 ch 99 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.280 ; renumbered in 2016 at which time “AS 13.26.167 ” was substituted for “AS 13.26.070 ”, and “AS 13.26.101 — 13.26.186 ” was substituted for “AS 13.26.030 — 13.26.085”.

Sec. 13.26.545. Distributive duties and powers of conservator.

1. 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
      1. 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;
      2. the accustomed standard of living of the protected person and members of the protected person’s household;
      3. 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.
2. 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.
3. 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.
4. 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.
5. 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.

History. (§ 1 ch 78 SLA 1972; am § 25 ch 84 SLA 2004)

Revisor's notes. —

Formerly AS 13.26.285 ; renumbered in 2016 at which time “AS 13.26.401 (2)” was substituted for “AS 13.26.165 (2)”.

Sec. 13.26.550. Enlargement or limitation of powers of conservator.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.290 ; renumbered in 2016 at which time numerous cross references to other renumbered sections were conformed.

Sec. 13.26.555. Preservation of estate plan.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.295 ; renumbered in 2016 at which time “AS 13.26.545(a) and (b)” was substituted for “AS 13.26.285(a) and (b)”.

Sec. 13.26.560. Claims against estate and protected person; enforcement.

1. 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.
2. 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.
3. 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.

History. (§ 1 ch 78 SLA 1972; am § 31 ch 56 SLA 1973; am § 26 ch 84 SLA 2004; am § 25 ch 53 SLA 2008)

Revisor's notes. —

Formerly AS 13.26.300 ; renumbered in 2016 at which time “AS 13.26.545(e) ” was substituted for “AS 13.26.285(e)”.

Sec. 13.26.565. Individual liability of conservator.

1. 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.
2. 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.
3. 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.
4. 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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.305 ; renumbered in 2016.

Sec. 13.26.570. Termination of proceeding.

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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.310 ; renumbered in 2016.

Sec. 13.26.575. Payment of debt and delivery of property to foreign conservator without local proceedings.

1. 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.
2. 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.

History. (§ 1 ch 78 SLA 1972)

Revisor's notes. —

Formerly AS 13.26.315 ; renumbered in 2016.

Sec. 13.26.580. Foreign conservators.

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.

History. (§ 32 ch 56 SLA 1973)

Revisor's notes. —

Formerly AS 13.26.320 ; renumbered in 2016.

Sec. 13.26.595. Definitions.

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.

History. (§ 11 ch 71 SLA 2012)

Revisor's notes. —

Formerly AS 13.26.324; renumbered in 2016 at which time “AS 13.26.401 — 13.26.595 ” was substituted for “AS 13.26.165 — 13.26.324”.

Sec. 13.26.600. Execution of power of attorney.

1. 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.
2. 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.

History. (§ 24 ch 50 SLA 2016)

Revisor's notes. —

Enacted as AS 13.26.357; renumbered in 2016.

Cross references. —

For provision relating to the applicability of the 2016 enactment of this section, see sec. 29, ch. 50 SLA 2016, in the 2016 Temporary and Special Acts or the editor's note at the beginning of the chapter.

Effective dates. —

Section 30, ch. 50, SLA 2016 makes this section effective January 1, 2017.

Sec. 13.26.605. Agent’s acceptance and liability.

1. 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.
2. 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.

History. (§ 4 ch 50 SLA 2016)

Revisor's notes. —

Enacted as AS 13.26.326; renumbered in 2016 at which time “AS 13.26.600 — 13.26.695 ” was substituted for “AS 13.26.326 — 13.26.359”.

Cross references. —

For provision relating to the applicability of the 2016 enactment of this section, see sec. 29, ch. 50 SLA 2016, in the 2016 Temporary and Special Acts or the editor's note at the beginning of the chapter.

Effective dates. —

Section 30, ch. 50, SLA 2016 makes this section effective January 1, 2017.

Sec. 13.26.610. Agent’s duties.

1. 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.
2. 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
      1. the value and nature of the principal’s property;
      2. the principal’s foreseeable obligations and need for maintenance;
      3. minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and
      4. eligibility for a benefit, a program, or assistance under a statute or regulation.
3. 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.
4. 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.
5. 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.
6. Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.
7. 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.
8. 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.

History. (§ 4 ch 50 SLA 2016)

Revisor's notes. —

Enacted as AS 13.26.327; renumbered in 2016.

Cross references. —

For provision relating to the applicability of the 2016 enactment of this section, see sec. 29, ch. 50 SLA 2016, in the 2016 Temporary and Special Acts or the editor’s note at the beginning of the chapter.

Effective dates. —

Section 30, ch. 50, SLA 2016 makes this section effective January 1, 2017.

Sec. 13.26.615. Acceptance of power of attorney.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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 and Social Services 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.
6. 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.