Monday, June 17, 2019

Nevada Passes 2016 Uniform Act Amendments

On June 7, 2019, Nevada Governor Steve Sisolak approved Senate Bill 44 which incorporates certain provisions of the 2016 Uniform Unclaimed Property Act into the Nevada Unclaimed Property Act. In particular, the new legislation adds provisions relating specifically to payroll cards and virtual currency and exempts game-related digital content and loyalty cards. It also changes the dormancy standards for life insurance policies and IRA accounts to more closely mirror the provisions of the Uniform Act and allows for the use of electronic communications.

With regard to owner claims, the new law expressly permits the state to deduct from such claims and amounts owed by the owner for outstanding child support, civil or criminal penalties, or state and local taxes. In an effort to combat fraudulent claims made for unclaimed property, the new legislation also imposes criminal penalties for the filing of false claims.

The new law goes into effect on July 1.

Friday, April 19, 2019

Colorado Passes Version of 2016 Uniform Unclaimed Property Act

New Legislation, Which Reduces Many Dormancy Periods To 3 Years, Is Effective July 1, 2020

 

On April 16, 2019, Colorado Governor Jared S. Polis signed Senate Bill 19-088 into law, which adopts a version of the 2016 Uniform Unclaimed Property Act. Under the new law, the dormancy period for most property types will drop to 3 years (down from 5). Certain bank accounts and gift cards will still be subject to a 5 year dormancy period, and other items like payroll and dissolution proceeds will continue to have a 1 year dormancy period.

With respect to securities, the new legislation imposes a 3 year dormancy period, that now begins to run upon the second instance of returned mail (as opposed to the former unclaimed dividend standard). The new law also leaves in place certain Colorado-specific exemptions that were in the prior Unclaimed Property Act, such as the exemption for certain lawyer trust accounts, gaming chips or tokens, property held by racetracks, and certain gift card proceeds held by small issuers.

The new legislation keeps the current October 31 reporting deadline for property deemed abandoned as of the previous June 30. The new law goes into effect for the 2020 report.

Wednesday, April 3, 2019

Is "True Escheat" The Future of Unclaimed Property?

Nevada is considering a bill "providing that all property rights and legal title to, and ownership of" of U.S. savings bonds would "vest in this State" after three years. After that three year period, the state could choose to pay the proceeds to the rightful owner of the bond, but the decision to do so would be left to the state's discretion. West Virginia is considering similar legislation, A law proposed in Hawaii goes even further providing that all unclaimed property with a value of $100 or less shall immediately "escheat to the State and be transferred to the general fund."

These are just a few examples of a new (and for unclaimed property owners, troubling) trend in unclaimed property legislation -- a shift from "custodial" escheat laws to "true" escheat laws.
Currently, most state unclaimed property laws are "custodial" in nature -- meaning that the state takes possession of the unclaimed property on the rightful owner's behalf, but the state never actually takes "title" (i.e., ownership). Instead, the state holds the property in trust, and the rightful owner can always claim the property from the state when he or she becomes aware of it. To be sure, the state may use those monies for schools, roads, or other budgetary purposes in the interim, but the rightful owner retains the right to get his or her money or property back.

The rationale for such "custodial" escheat laws is reasonably straightforward: given that the rightful owner is not in possession, someone is going to have the "free" use of the money. Better that it be the state for the use of all citizens than a private company. In the custodial paradigm, the owner theoretically is no worse off by the state, rather than a company, holding his or her property (at least if the property is cash, and not securities).

In a "true" escheat system, the state ultimately acquires not only custody of the property, but ownership. As a result, the rights of the original owner are deemed "cut off." As explained by 18th Century English jurist William Blackstone in his Commentaries on the Laws of England, the rationale for "true" escheat laws is that all property rights were ultimately derived from the sovereign: "The grand and fundamental maxim of all feudal tenure is this; that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown." Accordingly, where something happens to the current owner, the property reverts back to the sovereign.

While this rule may still make sense for "real property" (i.e., land) with the sovereign being the state, it is not for most "intangible" property. A share of stock you purchase from an issuer, a CD you deposit at a bank, a payroll check -- none of these items "originated" with the state. The potential for true escheat laws, along with the ever expanding scope of unclaimed property laws, and the apparently inexorable process of making dormancy periods shorter and shorter, could very well have a significant and negative impact on the owners of unclaimed property.

While the current proposals appear to be modest (just a single property type here, a $100 limit there) it is not hard to imagine such laws being expanded. Owners should be wary.

Wednesday, March 27, 2019

Arkansas Passes Law For Immediate Liquidation of Unclaimed Securities

Recently, we posted an article addressing the potential pitfalls to owners arising out of certain state's treatment of "unclaimed" securities account. In that article, we noted a bill pending in Arkansas legislature permitting the Administrator of unclaimed property in that state to sell escheated securities immediately upon receipt, instead of holding them for three years. That bill became recently became law.

The new law was also passed as an emergency measure meaning that the legislature made a determination that this new law was "immediately necessary for the preservation of the public peace, health, and safety." Accordingly, the law became effective immediately upon its approval by the Governor on March 15.

Assuming that the state begins the practice of immediately selling securities reported to the state, it means that owners who later seek to recover their property from the state will not receive the securities -- nor any of the dividends, splits, or other compensation that may have accrued -- but rather just the value of the securities at the time of liquidation, less any fees incurred by the state.  

Friday, March 22, 2019

Friday Lost + Found

IRS Holding $1.4B in Unclaimed Refunds -- According to CBS News the Internal Revenue Service has announced that it has approximately $1.4 billion in unclaimed tax returns for more than a million taxpayers. In addition to background on how these amounts have gone unclaimed, the article also has some tips for those who may have fallen behind on filings.

California Holding Over $9 Billion in Unclaimed Property -- From time to time, states will publish estimates of the approximate amount of unclaimed funds being held at a given time. According to a recent press release from the California State Controller's Office, the Golden State holds over $9 billion dollars in unclaimed funds waiting for its rightful owners.
 
Former Mutual Fund Employee Convicted of Stealing from Dormant Accounts -- Whenever any organization has a cache of dormant or otherwise unclaimed funds lying around (so to speak) there will be those who see the potential to take some of that money for themselves. According to the Philly Inquirer, a supervisor at a large mutual fund company has recently pled guilty to stealing more than $2 million "from dormant accounts that were slated for 'escheat.'" He then issued checks from these accounts to various family members. There is no information on how the scam was discovered, but according to the Inquirer "[s]entencing guidelines call for a potential 46 years in prison, $2.1 million in restitution and a $1.25 million fine."