Free INSTRUCTIONS FOR FILING GUARDIANSHIP PETITION - Alaska

INSTRUCTIONS FOR PETITION TO RECEIVE FUNDS ON BEHALF OF A MINOR Introduction If an unmarried minor child is a beneficiary of a life insurance policy and the person whose life is insured dies, the insurance company will not pay the insurance proceeds directly to the child. Instead, the company will usually seek to determine a legally responsible adult to whom it can pay the child's money. If you are a parent of such a child, the insurance company may write to you stating that you need to be named the "legal guardian" of the child before the company can pay the money to you. The forms and instructions in this packet should help you get the court order you need. Appointment as the full guardian of the child is not the most efficient remedy for this problem. In most cases, it will not even be possible because such an appointment is only allowed if the child has no living parents or "all parental rights of custody have been terminated or suspended by circumstances or prior court order." 1 These instructions instead describe a procedure for asking the court for a special "limited guardianship" pursuant to the court's authority to "make any other disposition of the matter that will best serve the interests of the minor" 2 when a full guardian cannot be appointed and the court's authority to issue a protective order when "a minor owns money or property that requires management or protection which cannot otherwise be provided." 3

Lawyers You may want to talk to a lawyer about the protective arrangement options described in this packet or whether another method would be better. If possible, the lawyer should be familiar with guardianship and conservatorship procedure. If you are unsure about whether you should hire a lawyer, it is a good idea to talk to one about your case before you decide whether you can handle it alone. If you do not know a lawyer, you can call or write: Lawyer Referral Service of the Alaska Bar Association P.O. Box 100279, Anchorage, AK 99510-0279 Phone: 272-0352 or 800-770-9999 outside Anchorage (toll free within Alaska) Alaska Bar Association website: www.alaskabar.org

Costs of the Proceedings See page 10 for information about who has to pay the costs involved in petitioning to receive funds for a minor.

1 2 3

AS 13.26.045 AS 13.26.060(b) AS 13.26.165(1) and 13.26.205

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Definitions of Some Terms Used in These Instructions 4 Beneficiary Conservator: In the language of life insurance, a beneficiary is the recipient of the proceeds of the policy when the named insured dies. A "conservator" is someone appointed by the court to manage the financial affairs of a person who needs this protection because the "protected person" cannot handle these matters. The procedure for getting a conservator appointed is similar to, but not the same as, the procedure for getting a guardian appointed. A conservator must file a report about the conservatorship with the court every year until the conservatorship ends. A guardian is a person appointed by the court to manage the affairs of another, called the "ward." A guardian has authority to make personal decisions for the ward, such as where the ward will live and under what conditions. A guardian may also manage the finances of the ward if a conservator (someone to manage the ward's money and property) has not been appointed by the court. A guardian must file a report about the guardianship with the court every year until the guardianship ends. A minor is a person who is under 18 years of age. 5 A written request to the court for an order. 6 The petitioner is the person who signs the petition asking the court to appoint a guardian or conservator or order another protective arrangement.

Guardian:

Minor: Petition: Petitioner:

4 5 6

AS 13.26.005 AS 13.06.050(29) AS 13.06.050(37)

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How To File Step 1. Fill out the attached Petition form (PG-662). If you are seeking to obtain custody of insurance proceeds belonging to more than one child, fill out a separate petition for each child. Fill in the top of the form as shown in the following illustration:
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA AT City Where Court is Located In the Matter of the Protective Proceeding of ) ) ) ) ) ) ) )

Name of Child
Minor Date of Birth: xx/xx/xx

CASE NO. PETITION TO RECEIVE FUNDS ON BEHALF OF A MINOR (AS 13.26.205)

Print clearly, using black ink. a. In the opening paragraph, check the box that describes the type of protective arrangement you want the court to authorize. The three options are: (1) Custodianship under the "Uniform Transfers to Minors Act" (UTMA). 7 The UTMA is a set of statutes, adopted by almost all states, that provides a method for transferring property to minors and arranging for an adult to manage it until the child is old enough to receive it. See the description of the powers and duties of a UTMA custodian on the next page. Court-Approved Trust. If a trust for the benefit of the minor already exists or if you intend to create one, you will need to describe it in the petition. A "trust" is a legal entity created to hold money or other property for the benefit of a particular person or persons. The trust property is managed by a trustee. The document that creates the trust describes the rules the trustee must follow in managing the property, how the property can be used, and when it must be turned over to the beneficiary. You will probably need an attorney's help to create a trust if a trust does not already exist. Other Court-Approved Disposition of the Funds. If you want the court to approve another protective arrangement for the minor's

(2)

(3)

7

AS 13.46.010 - .999

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insurance proceeds, you must check the third box on page 1 of the petition and describe that arrangement.

Powers and Duties of a UTMA Custodian 1. The custodian must keep these funds separate from the custodian's funds and anyone else's funds at all times.8 These funds belong to the minor child, although it is up to the custodian to decide where to invest the funds and when to spend them. The custodian must keep records of all transactions concerning these funds, including information necessary for the preparation of the minor's tax returns, and must make the records available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of 14 years. 9 The custodian must manage and invest the funds and the funds' earnings to benefit the minor, and in dealing with the funds, must observe the standard of care that would be observed by a prudent person dealing with property of another. 10 When the money is deposited in an account at a financial institution, the account must be named as follows: " (Custodian's Name) as custodian for (Minor's Name) under the Alaska Uniform Transfers to Minors Act." 11 Note: The custodian should also use the minor's tax identification number (social security number) to identify all custodial property accounts. 5. The custodian may pay to the minor or spend for the minor's benefit as much of these funds as the custodian considers advisable for the use and benefit of the minor. 12 The custodian must transfer the funds to the minor when the minor reaches age 18. 13

2.

3.

4.

6.

The provisions of the Alaska Uniform Transfers to Minors Act that describe the powers and duties of the custodian are on pages 11 ­ 14 . The complete act (Alaska Statutes 13.46.010 to .999) can be found in the Alaska Statutes on the Alaska Legislature's website: http://www.legis.state.ak.us/folhome.htm

8 9

AS 13.46.110(d) AS 13.46.110(e) 10 AS 13.46.110 11 AS 13.46.080(a)(2) 12 AS 13.46.130(a) 13 AS 13.46.190(2)

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b.

Paragraphs 9, 10 and 11 ask about other court orders or proceedings concerning the child. If there are any court orders or court cases pending, please include the type of case, case name, case number and location of the court, if you can. Include any type of case that affects who has custody of the child in any court. Signature. Sign and date the Petition on page 3. You will also need to complete the "Verification" section that follows your signature. You must do this in front of a notary public. A court clerk can provide this notary service for you (at no charge) when you bring the Petition to court. You must bring a photo ID with you for the notarization.

c.

Step 2.

Make a copy of the Petition and attachments for yourself. Be sure to attach a copy of the letter you received from the insurance company. If you do not have a letter, please describe in your petition the form of communication you received from the insurance company. Note: You will also need extra copies of the Petition and attachments to send along with the notice of hearing described in Step 5 below. File the original Petition at the superior court filing location nearest to where the minor lives (see list of court addresses on page 9 ), and pay the $75 filing fee. 14 You can deliver the Petition to the court in person or mail it along with the filing fee. If you cannot afford this fee, ask the clerk for form TF-920, Request for Exemption from Payment of Fees. If you are petitioning to receive funds belonging to more than one minor at the same time, you only have to pay one filing fee even though you must file a separate petition for each child. If you change your address or phone number after you file the petition and before the court hearing, be sure to notify the court.

Step 3.

Step 4.

Scheduling of Court Hearing. The court clerk will mail to you a Notice of Hearing telling you the time and place of your hearing and the name of the judge or master who will preside.

Step 5.

Notifying Others about the Hearing. As petitioner, it is your responsibility to notify all the following people about the hearing: · the minor (if the minor is old enough to understand the proceeding). The minor must attend the hearing in person or, with the court's prior permission, telephonically. · both parents of the minor · the person who has physical custody of the minor if it is someone other than a parent

14

Administrative Rule 9(b)(4)

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Do this as soon as possible after you receive the court's Notice of Hearing (at least 14 days before the hearing). Use the attached form PG-663, Notice of Hearing on Petition to Receive Minor's Funds. a. On page 1, fill in the top of the form as you did on the Petition. Then fill in the case number, the time and place of the hearing, the name of the judge or master who will preside, and the court telephone number. (See list of telephone numbers on page 9 .) Sign and date the form. On page 2, check the box in front of each person who will get this notice. Fill in the name of the person, the date of delivery or mailing and the method of delivery. Then sign the bottom of the page and fill in your address and telephone number. (1) Minor. If the minor will be attending the hearing in person or by telephone, you can deliver the notice and petition to the minor yourself (check the "hand-delivery" box and fill in your name). If the minor will not be attending the hearing, you must either have the documents served on the minor by a process server or get the court's permission to use a different method of service or to not serve the minor at all. Parents. If the parents attend the hearing, no proof of notice will be required. If they do not attend, you must be able to prove that you gave them notice of the hearing. If the parents are in Alaska, their copies must either be sent by certified mail with restricted delivery or delivered by a process server. See the booklet "How to Serve a Summons in a Civil Lawsuit" (CIV-106) for instructions on both these methods. If a parent is outside Alaska, the notice can be sent to that parent by first class mail. 15 Another option, if you want to avoid the cost of certified mail or a process server, is to ask the parent to "waive" (give up the right to) notice of the hearing. If the parent agrees to this, the parent will need to write a letter to the court telling the court that he or she understands what is being requested in your petition and chooses not to attend the hearing. This letter must be notarized (signed in front of a notary public) and filed with the court. Person Who Has Physical Custody. If someone other than a parent has physical custody of the minor, the notice to that person can be delivered by either first class mail or hand delivery by you or anyone else. If you use hand delivery, you must list who did (or will do) the delivery.

b.

(2)

(3)

15

AS 13.26.185(a) and 13.06.110

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c.

Make copies of the Notice form and the Petition form (and attachments) and send a copy of both to each person listed on page 2 of the Notice. You must do this at least 14 days before the hearing.16 Proof That Notice Was Given. After the Notice has been sent to everyone, you must file proof with the court that this has been done. Before or at the time of the hearing, file the following proof with the court: (1) For copies that you mailed by first class mail or hand delivered, file the original Notice with the court. The completed certificate of service with your signature on page 2 of the Notice is your proof of service. Keep a copy of the Notice for yourself. For copies that were delivered by a process server or by certified mail: (a) If you use a process server, the process server will give you a "Return of Service" which lists the documents delivered, on whom and when they were delivered. File the original "Return of Service" with the court. Keep a copy for yourself. If you use certified mail, fill out form PG-117, Certificate of Service by Certified Mail. Fill out a separate PG-117 form for each person you serve by certified mail. Attach to it the original green card you got back from the Post Office, showing that the certified mail was delivered to the person to whom you sent it. File the original Certificate with the court. Keep a copy of the Certificate for yourself. Note: You will need to revise form PG-117 to add the name of this notice and the title of the person to whom you are mailing the notice (e.g., "Minor's Mother"). (3) If anyone has signed a written waiver of notice, file the original with the court along with your original Notice.

d.

(2)

(b)

Step 6.

Court Hearing. 17 The hearing will be before a judge or master. The minor must attend the hearing in person unless the judge or master gives permission (in advance) for the minor to participate by telephone (for example, if the

16

AS 13.06.110 AS 13.26.060, 13.26.165, 13.26.195

17

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minor lives out of state) or permission for the minor not to attend because the minor is not old enough to understand the proceedings. If you nominated someone other than yourself to be the guardian, that person must also attend the hearing. Usually these hearings are closed to the public. The hearing will usually proceed as follows: a. b. The judge will identify everyone present (for the hearing record). If no one has filed an opposition to your petition, the judge may ask you questions about what you state in your petition. If an opposition has been filed, the judge will ask what the dispute is. In a contested case, (1) You may be required to testify under oath and/or call witnesses to testify in support of your petition. You will have the burden of proving what you have said in your petition. The judge may have to postpone the hearing if it is going to take a long time to hear all the necessary testimony. The judge may order mediation under Probate Rule 4.5. (The court's order will state who the mediator will be, when mediation must begin and how the costs of the mediation will be split between the parties.)

c.

(2)

(3)

d.

At any time during the proceeding, the judge can appoint an attorney to represent the minor if the judge determines that the minor's interests are or may be inadequately represented. 18

Step 7.

Court Order. After the hearing, the court will issue a written order.

18

AS 13.26.195(a), 13.26.060(d)

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SUPERIOR COURT FILING LOCATIONS ANCHORAGE: BARROW: BETHEL: CORDOVA: DILLINGHAM: FAIRBANKS: GLENNALLEN: HOMER: JUNEAU: KENAI: KETCHIKAN: KODIAK: KOTZEBUE: NAKNEK: NOME: PALMER: PETERSBURG: SEWARD: SITKA: UNALASKA VALDEZ: WRANGELL: Probate Office, 303 K Street, Anchorage, AK 99501-2099 Box 270, Barrow, AK 99723-0270 Box 130, Bethel, AK 99559-0130 Box 898, Cordova, AK 99574-0898 Box 909, Dillingham, AK 99576-0909 Probate Dept., 101 Lacey Street, Fairbanks, AK 99701-4765 Box 86, Glennallen, AK 99588-0086 3670 Lake St., Suite 400, Homer, AK 99603-7686 Box 114100, Juneau, AK 99811-4100 125 Trading Bay Drive, Suite 100, Kenai, AK 99611-7717 415 Main St., Rm 400, Ketchikan, AK 99901-6399 204 Mission Road, Rm 10, Kodiak, AK 99615-7312 Box 317, Kotzebue, AK 99752-0317 Box 229, Naknek, AK 99633-0229 Box 1110, Nome, AK 99762-1110 435 S. Denali, Palmer, AK 99645-6437 Box 1009, Petersburg, AK 99833-1009 Box 1929, Seward, AK 99664-1929 304 Lake St., Rm 203, Sitka, AK 99835-7759 Box 245, Unalaska, AK 99685-0245 Box 127, Valdez, AK 99686-0127 Box 869, Wrangell, AK 99929-0869 (264-0433) (852-4800) (543-2298) (424-7312) (842-5215) (452-9257) (822-3405) (235-8171) (463-4707) (283-3110) (225-3195) (486-1600) (442-3208) (246-4240) (443-5612) (746-8181) (772-3824) (224-3077) (747-3291) (581-1379) (835-2266) (874-2311)

If your nearest court is not on this list, check with that court to find out if a petition for appointment of a custodian can be filed there.
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Costs Cost
Filing Fee

Who Must Pay
The petitioner must pay the $75 filing fee (unless the court waives the fee because the petitioner is indigent). 19 The petitioner must pay the attorney if the petitioner hires an attorney. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, the court 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. 20 The court will decide who must pay the attorney.

Attorney for Petitioner

Attorney for Minor

19 20

Administrative Rule 9(b)(4) and (f)(1). AS 13.26.195(a), 13.26.060(d)

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Alaska Statute 13.46
Chapter 13.46. ALASKA UNIFORM TRANSFERS TO MINORS ACT The following sections of the Act concern the custodian's powers and duties:

Sec. 13.46.090. Single custodianship. A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship. Sec. 13.46.100. Validity and effect of transfer. ... (b) A transfer made under AS 13.46.080 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this chapter, and neither the minor nor the minor's legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this chapter. ... Sec. 13.46.110. Care of custodial property. (a) A custodian shall (1) take control of custodial property; (2) register or record title to custodial property if appropriate; and (3) collect, hold, manage, invest, and reinvest custodial property. (b) In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute, except AS 13.90.010 , restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain custodial property received from a transferor. (c) A custodian may invest in or pay premiums on life insurance or endowment policies on (1) the life of the minor only if the minor or the minor's estate is the sole beneficiary; or (2) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary. (d) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: "as a custodian for (name of minor) under the Alaska Uniform Transfers to Minors Act." Page 11 of 14 Probate Rule 17(b) PG-661 (9/07)(cs) AS 13.26.060(b) & 13.26.165 - .205 Instructions for Petition to Receive Funds on Behalf of a Minor AS 13.46.010 - .990

(e)

A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of 14 years.

Sec. 13.46.120. Powers of custodian. (a) A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only. (b) This section does not relieve a custodian from liability for breach of AS 13.46.110 . Sec. 13.46.130. Use of custodial property. (a) A custodian may deliver or pay to the minor or expend for the minor's benefit as much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (1) the duty or ability of the custodian personally or of another person to support the minor; or (2) other income or property of the minor that may be applicable or available for that purpose. (b) On petition of an interested person or the minor if the minor has attained the age of 14 years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit as much of the custodial property as the court considers advisable for the use and benefit of the minor. (c) A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect an obligation of a person to support the minor. Sec. 13.46.140. Custodian's expenses, compensation, and bond. (a) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties. (b) Except for one who is a transferor under AS 13.46.030 , a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year. (c) Except as provided in AS 13.46.170 (f), a custodian is not required to give a bond. Sec. 13.46.150. Exemption of third person from liability. A third person in good faith and without court order may act on the instructions of or otherwise deal with a person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining (1) the validity of the purported custodian's designation; (2) the propriety of, or the authority under this chapter for, an act of the purported custodian; (3) the validity or propriety under this chapter of an instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or (4) the propriety of the application of property of the minor delivered to the purported custodian.

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Sec. 13.46.160. Liability to third persons. (a) A claim based on (1) a contract entered into by a custodian acting in a custodial capacity, (2) an obligation arising from the ownership or control of custodial property, or (3) a tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable. (b) A custodian is not personally liable (1) on a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or (2) for an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault. (c) A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault. Sec. 13.46.170. Renunciation, resignation, death, or removal of custodian; designation of successor custodian. (a) A person nominated under AS 13.46.020 or designated under AS 13.46.080 as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and a substitute custodian able, willing, and eligible to serve was not nominated under AS 13.46.020 , the person who made the nomination may nominate a substitute custodian under AS 13.46.020; otherwise the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under AS 13.46.080 (a). The custodian so designated has the rights of a successor custodian. (b) A custodian at any time may designate a trust company or an adult other than a transferor under AS 13.46.030 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed. (c) A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of 14 years and to the successor custodian and by delivering the custodial property to the successor custodian. (d) If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of 14 years, the minor may designate as successor custodian, in the manner prescribed in (b) of this section, an adult member of the minor's family, a conservator of the minor, or a trust company. If the minor has not attained the age of 14 years or fails to act within 60 days after the ineligibility, death, or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or another interested person may petition the court to designate a successor custodian. (e) A custodian who declines to serve under (a) of this section or resigns under (c) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of Page 13 of 14 Probate Rule 17(b) PG-661 (9/07)(cs) AS 13.26.060(b) & 13.26.165 - .205 Instructions for Petition to Receive Funds on Behalf of a Minor AS 13.46.010 - .990

(f)

the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received. A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of 14 years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under AS 13.46.030 or to require the custodian to give appropriate bond.

Sec. 13.46.180. Accounting by and determination of liability of custodian. (a) A minor who has attained the age of 14 years, the minor's guardian of the person or legal representative, an adult member of the minor's family, a transferor, or a transferor's legal representative may petition the court for (1) an accounting by the custodian or the custodian's legal representative; or (2) a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under AS 13.46.160 to which the minor or the minor's legal representative was a party. (b) A successor custodian may petition the court for an accounting by the predecessor custodian. (c) The court, in a proceeding under this chapter or in another proceeding, may require or permit the custodian or the custodian's legal representative to account. (d) If a custodian is removed under AS 13.46.170 (f), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property. Sec. 13.46.190. Termination of custodianship. The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earlier of the (1) minor's attainment of 21 years of age with respect to property transferred under AS 13.46.030 or 13.46.040 unless the time of transfer of the custodial property to the minor is changed under AS 13.46.195 ; (2) minor's attainment of 18 years of age with respect to property transferred under AS 13.46.050 or 13.46.060; (3) time specified in the transfer under AS 13.46.080 if the time of transfer of the custodial property to the minor is changed under AS 13.46.195; or (4) minor's death.

Sec. 13.46.999. Short title. This chapter may be cited as the Alaska Uniform Transfers to Minors Act.

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