(a) Except as provided in subsection (f), for purposes of this section, a “qualified affidavit” means an affidavit in which the transferor states that at the time of the transfer of the property to the trust, all of the following apply:

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Terms Used In Alabama Code 19-3E-6

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
  • Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
  • Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Fiduciary: A trustee, executor, or administrator.
  • following: means next after. See Alabama Code 1-1-1
  • Oath: A promise to tell the truth.
  • oath: includes affirmation. See Alabama Code 1-1-1
  • Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
  • person: includes a corporation as well as a natural person. See Alabama Code 1-1-1
  • property: includes both real and personal property. See Alabama Code 1-1-1
(1) The transferor has full right, title, and authority to transfer the property to the trust.
(2) The transfer of the property to the trust will not render the transferor insolvent.
(3) The transferor does not intend to defraud a creditor by transferring the property to the trust.
(4) The transferor does not know of or have reason to know of any pending or threatened court actions against the transferor, except for those court actions identified by the transferor on an attachment to the affidavit.
(5) The transferor is not involved in any administrative proceedings, except for those administrative proceedings identified on an attachment to the affidavit.
(6) The transferor is not currently in arrears on a child support obligation by more than 30 days.
(7) The transferor does not contemplate filing for relief under the Bankruptcy Code, 11 U.S.C. §§ 101 to 1532, inclusive.
(8) The property being transferred to the trust was not derived from unlawful activities.
(b) The transferor shall sign a qualified affidavit before a qualified disposition is made.
(c) A qualified affidavit is defective if it materially fails to meet the criteria provided in subsection (a), except that a qualified affidavit is not defective because of any of the following:

(1) Nonsubstantive variances from the language provided in subsection (a).
(2) Statements or representations in addition to those provided in subsection (a) if the statements or representations do not contradict those required by subsection (a).
(3) Technical errors in administering an oath if the errors were not the fault of the transferor and the transferor reasonably relied on another person to prepare or administer the oath.
(d) A qualified affidavit is not required in any of the following circumstances:

(1) From the settlor for a fiduciary qualified disposition.
(2) From a transferor who is not the settlor of the qualified disposition, except to the extent the transferor is a beneficiary of the qualified disposition and the property subject to the qualified disposition was not previously subject to a qualified disposition with respect to which the transferor signed a qualified affidavit.
(3) In connection with a disposition that is part of, required by, or the direct result of, a prior qualified disposition supported by a qualified affidavit that otherwise complies with the requirements of subsection (a).
(e) If a qualified affidavit is required by this section and a transferor fails to sign timely a qualified affidavit or signs a defective affidavit, the failure or defect may be considered as evidence in an action described in subsection (b) of Section 19-3E-5 to the extent permitted by the Alabama Rules of Evidence, but the validity of the qualified disposition is not affected in any other way because of the failure or defect.
(f) If subdivision (d)(2) applies, the required affidavit shall omit the statements described in subdivisions (1) and (3) of subsection (a) and include a statement that the qualified disposition is not intended to defraud any creditor.
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