PREPARED BY:
________________________________
LAWYER NAME, Esq.
IRREVOCABLE TRUST
TRUST EIN ________________
ARTICLE I. DECLARATION OF TRUST
THIS TRUST AGREEMENT dated as of the first day of OCTOBER 2001, between,
A. EXECUTIVE who resides at STREET ADDRESS, STATE ZIP hereinafter called "GRANTOR", and
B. the BANK with offices at STREET ADDRESS, Charleston, West Virginia 25301, and
C. the LEGAL FIRM with offices at,STREET ADDRESS Charleston, West Virginia 25301 and
D. the ACCOUNTING FIRM with offices at, STREET ADDRESS Charleston, West Virginia 25301 and
E. herinafter collectively called "CO-TRUSTEE".
RECITALS
WHEREAS, The GRANTOR desires to create a trust, and transfer the assets listed below to the trust, on the terms which are detailed below, and the CO-TRUSTEE has consented to accept and perform said TRUST in accordance with such terms.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto, and other good and valuable consideration, receipt and adequacy of which is hereby acknowledged, this TRUST shall be effective as of this date and the terms following:
ARTICLE II. TRUST ASSETS
SECTION 1. SCOPE OF TRUST
A. This TRUST is intended to last until the GRANTOR achieves age seventy or death.
B. The investments of this TRUST will be secured by long term TREASURY notes at the prevailing interest rates at the time of purchase.
C. The purposes of this TRUST are to:
1. uniformly distribute the dividend income among immediate family;
2. provide a definable authority to disburse TRUST income.
D. TRUST is not a business management instrument
E. TRUST is not a diversity investment program.
SECTION 2. TRANSFER OF PROPERTY TO TRUST
A. The GRANTOR assigns and transfers to the TRUST, and the CO-TRUSTEE, by the execution of this TRUST acknowledges receipt from the GRANTOR the quarterly dividend income from the corporate shares of COMPNAME INC. owned by GRANTOR.
B. This income, together with any Addition, shall constitute the Trust Estate.
C. The term Trust Estate shall also include any other property which the GRANTOR:
1. The legal representatives of the GRANTOR's estate pursuant to the provisions of the GRANTOR's last will and testament,
2. Or any other persons transfer to the TRUST,
3. As well as the proceeds from the sale or investment of such property,
4. And the securities or other assets in which such proceeds may be invested or reinvested.
SECTION 3. ADDITIONAL ASSETS CONTRIBUTED TO TRUST
A. The GRANTOR, or any other person, may assign or transfer after the date of this TRUST AGREEMENT, to the TRUST, securities, policies of life insurance or interest therein (whether or not premiums are paid directly by GRANTOR or otherwise to the insurance company) or other property, whether real or personal, tangible or intangible, reasonably acceptable to the CO-TRUSTEE as an addition to the Trust Estate.
B. All additions shall be added to the Trust Estate.
SECTION 4. ADDITIONS TO THE TRUST ESTATE FOLLOWING THE DEATH OF GRANTOR
Following the death of the GRANTOR, the CO-TRUSTEE may collect and add to the Trust Estate the following property, if such assets are reasonably acceptable to the CO-TRUSTEE:
A. Amounts payable under insurance policies on the life of the GRANTOR held in this TRUST;
B. Amounts payable under insurance policies on the life of the GRANTOR in which the TRUST has been designated beneficiary which are not held in this trust;
C. Amounts payable under the GRANTOR's employee benefit plans in which the TRUST has been designated as beneficiary;
D. Property payable to the TRUST by the legal representatives of the GRANTOR's estate pursuant to the provisions of the GRANTOR's last will and testament;
E. Property payable to a trust formed under the GRANTOR's last will for the benefit of a person who is a beneficiary of a similar trust formed hereunder, and for which the Executor of GRANTOR's last will has the authority to combine by transfer with a TRUST formed hereunder; and
F. Property payable by any other persons, whether pursuant to the provisions of such person's last will or otherwise, to the TRUST.
SECTION 5. CO-TRUSTEE DEALING WITH ADDITIONS
A. The CO-TRUSTEE shall accept and hold any Addition, if such property is reasonably acceptable to the CO-TRUSTEE, as part of the Trust Estate subject to the terms and provisions of this TRUST AGREEMENT.
B. The CO-TRUSTEE shall then deal with, manage, operate, invest, reinvest, and dispose of these Additions as part of the Trust Estate, as provided in this TRUST AGREEMENT.
C. The CO-TRUSTEE shall not be under any duty to accept any Addition not reasonably acceptable in the CO-TRUSTEE's reasonable discretion.
D. The CO-TRUSTEE shall provide quarterly statements to the beneficiaries of this TRUST of any assignments, transfers, or other additions affecting this TRUST.
ARTICLE III. GRANTOR'S POWERS AND RIGHTS UNDER THE TRUST
A. The GRANTOR has been advised with respect to the difference between revocable and irrevocable trusts and hereby declares that any trust formed under this TRUST AGREEMENT, and the Trust Estate created hereby, are to be irrevocable.
B. The GRANTOR alone has no power to alter, amend, revoke or terminate any TRUST provision or interest, whether under this TRUST AGREEMENT, or any rule of law.
C. GRANTOR shall not have any reversionary interest in this TRUST or Trust Estate.
ARTICLE IV. DISTRIBUTION OF INCOME AND PRINCIPAL
SECTION 1. STANDARDS FOR PAYMENT
A. ASCERTAINABLE STANDARD FOR PAYMENT OF INCOME AND PRINCIPAL
1. Unless specifically provided to the contrary in this TRUST AGREEMENT, any payment of principal or income by the CO-TRUSTEE shall be made in accordance with the ascertainable standards contained in the following provisions.
2. STANDARD FOR PAYMENT OF PRINCIPAL.
a. The CO-TRUSTEE of any TRUST created under this TRUST AGREEMENT is authorized, at any time, with respect to any beneficiary of any TRUST formed under this TRUST AGREEMENT then eligible to receive the net income from such TRUST, to pay to, or apply for the benefit of such persons such sums, without invading or consuming the principal of such TRUST, as the CO-TRUSTEE considers advisable to provide for such beneficiary in accordance with the broadest definition of an "ascertainable standard" as defined by Code Section 2041 (b)(1)(A), the regulations under Section 20.2041-1, including but not limited to Treasury Regulation Section 20.2041-1(c)(2).
b. This shall include the power of each beneficiary to enjoy the services as provided by the WORK AGREEMENT attached as limited by an ascertainable standard in reasonably measurable terms of the beneficiary's needs for:
1. RECREATION: A central 24 hour activity service will be available to coordinate local recreation activities.
As described in ARTICLE III of the WORK AGREEMENT, the emphasis of these activities will allow the household to enjoy free time together.
Basic services such as fitness, education, training, and meetings will be included, a fee for the family recreational activities per person per shift will be at an additional cost.
2. EDUCATION: A 24 hour private education system will be available to provide classroom services from age three to adult. As described in ARTICLE IV of the WORK AGREEMENT, the hours of classes will be the same as the parents work schedule to allow more time as a household.
i) EDUCATION, including college and professional education;
a) tuition;
b) books and dorm fees;
c) specific fees associated with campus activities.
3. INFANTS: A 24 hour DAY/ELDERLY/HOME CARE service will be available.
As described in ARTICLE V of the WORK AGREEMENT Day care will be provided free to beneficiary on shift, and for $6 (Six) dollars per shift per child when not on shift.
4. REALTY: All secured mortgage or rent payments for the real property with all improvements thereon, located at beneficiary's primary residence will be paid.
As described in ARTICLE VI of the WORK AGREEMENT, a 24 hour maintenance staff will be available to provide all required repairs and do whatever reasonably necessary to keep the beneficiary's primary residence in a fit and habitable condition, and to assist both beneficiary and CORPORATION to comply with all applicable building, housing, health, and safety codes which would materially affect health and safety.
Regular replacement of filters, or similar items shall be arranged with beneficiary's schedule.
beneficiary agrees that replacement of property, fences, shrubs, and lawn damaged due to abuse or neglect by beneficiary is to be at beneficiary's expense.
5. UTILITIES: All BASIC monthly service charges of electricity, water, sewer, telephone, internet connection, and cable TV for the beneficiary's primary residence will be paid.
beneficiary hereby agrees to pay any expense of usage fees such as cable premium channels, and pay per view, personal telephone long distance charges, and any utility excess.
As described in ARTICLE VII of the WORK AGREEMENT, a 24 hour technical staff will be available to provide installation of electricity, water, sewer, telephone, internet connection, cable TV, and to maintain these services for beneficiary primary residence.
This service will also include the computers, computer technician, and communications assets.
6. AGRICULTURE: A 24 hour farm system will be available as described in ARTICLE VIII of the WORK AGREEMENT.
7. INDUSTRY: A 24 hour staff is available for the geographical area manufacturing, production, Garage, processing, and to regularly pick up trash and debris for use in energy and recycling programs as described in ARTICLE IX of the WORK AGREEMENT,.
8. TRANSPORT: A 24 hour transit and delivery system providing local transport. As described in ARTICLE X of the WORK AGREEMENT, this service will offer connections between communities and to anywhere worldwide for an additional small fee per zone. Also this service will provide delivery of everything from small packages to semi-trailer loads in the system.
9. FOODS: A 24 hour grocery, restaurant, and catering services will be available as described in ARTICLE XI of the WORK AGREEMENT,.
10. SECURITY: A 24 hour private security staff will be available that will provide transportation, patrol, and security of all persons residing at beneficiary primary residence.
As described in ARTICLE XII of the WORK AGREEMENT, this service to provide emergency and security assistance, security coverage of personnel, activities, education, transport, and patrol of corporate property.
11. MEDICAL: A 24 hour geographical area medical care center will be available to provide preventative, routine, and emergency optical, dental, medical impatient, and outpatient health care services
As described in ARTICLE XIII of the WORK AGREEMENT, Ultimately every geographical area will develop a 192 bed facility with short term and long term care.
i) MEDICAL health, including hearing, dental, vision, hospital, nursing expenses and expenses of invalidism;.
a) During any disability of any beneficiary listed herein GRANTOR directs that they have the best medical and health care that can be provided to them and that the CO-TRUSTEE shall distribute TRUST income and principal accordingly.
b) GRANTOR directs that every reasonable effort be made to enable such beneficiary to continue to reside in their personal residence for as long as possible, and that every reasonable effort be made to accommodate their health care needs in such home rather than relocating to a health care facility.
c) In the event that such beneficiary must be relocated to any nursing or health care facility, GRANTOR directs that every possible effort be made to provide such facility operated under the auspices of the beneficiaries religious preference.
12. CREDIT UNION: A 24 hour staff will be available to provide professional services.
As described in ARTICLE XIV of the WORK AGREEMENT, each household will have the business services of a secretary for administration, job safety, claims and disability, and business scheduling person.
Each household will have the financial and bookkeeping services provided by the credit union program.
13. BUSINESS INVESTMENT;
a) limit of single endeavor;
b) seed money;
c) legal and accounting fees;
d) personal office equipment;
e) specific associated fees with business registration.
14. MAINTENANCE OR SUPPORT;
a. OR ANY COMBINATION of such items.
b. The words support or maintenance are not limited to the bare necessities of life.
c. This power shall include the power to support such beneficiary in reasonable comfort in their accustomed manner of living;
3. STANDARD FOR PAYMENT OF INCOME
a. The CO-TRUSTEE shall pay any portion, or all the income of any TRUST formed under this TRUST AGREEMENT to the designated beneficiaries of such TRUST in accordance with the instructions provided for any such TRUST.
b. Where no specific instructions are so provided, or such instructions are unclear, the amount of income distributed shall be payable in the discretion of the CO-TRUSTEE in accordance with the ascertainable standard described in the preceding provision.
c. Notwithstanding anything in this TRUST to the contrary, this provision shall not be interpreted or applied in a manner to restrict the required income distributions from any trust intended to qualify for the unlimited estate or gift tax marital deduction.
B. SPECIAL DISTRIBUTION STANDARDS
1. GUIDELINES FOR DISCRETIONARY DISTRIBUTIONS
It is the desire of the GRANTOR that in making any discretionary distributions of income or principal the CO-TRUSTEE shall take into account other resources that the beneficiary may have at his or her disposition.
2. SPENDTHRIFT CLAUSE
a. Except as may be otherwise provided in this TRUST AGREEMENT, no transfer disposition, charge or encumbrance on the income or principal of any trust created under this TRUST AGREEMENT, by any beneficiary by way of anticipation shall be valid or in any way binding upon the CO-TRUSTEE.
b. The right of any beneficiary to any payment of income or principal is subject to any charge or deduction which the CO-TRUSTEE makes against it under the authority granted to them by any statute, law, or by any provision of this TRUST AGREEMENT.
c. NO beneficiary shall have the right to transfer, dispose of, assign, or encumber such income or principal until the assets shall be paid to that beneficiary by the CO-TRUSTEE.
d. NO income or principal shall be liable to any claim of any creditor of any such beneficiary.
3. DISTRIBUTIONS TO PERSON UNDER LEGAL OBLIGATION
The following provision shall not apply to distributions made by GRANTOR where GRANTOR is serving as CO-TRUSTEE.
a. The CO-TRUSTEE shall not pay or expend the Trust Estate in a manner that would discharge any CO-TRUSTEE's legal obligation to support a particular beneficiary, if any.
b. Therefore, NO CO-TRUSTEE shall have the power or discretion, or be deemed to be a CO-TRUSTEE with respect to the making of payments, applications or allotments of income or principal to, or for the use or benefit of, himself or herself as a beneficiary of any TRUST hereunder, or for any person whom such CO-TRUSTEE, in his or her individual capacity, is legally obligated to support if such payment or application would constitute the discharge of any part of such CO-TRUSTEE's support obligation.
c. NO CO-TRUSTEE shall make payments to himself or herself or for his or her benefit where such payment or application would cause the inclusion of the assets from which payments are made in the CO-TRUSTEE's personal estate.
d. Where a CO-TRUSTEE is prohibited from taking an action as a result of this provision, then the other serving CO-TRUSTEE who is permitted after the application of this provision to serve, shall serve alone with respect to such action (the "Independent CO-TRUSTEE").
e. If no CO-TRUSTEE is then qualified to serve as an Independent CO-TRUSTEE, the person listed herein as the next successor CO-TRUSTEE shall be appointed as CO-TRUSTEE.
4. DIVORCE
If a divorce judgment is entered into between currently married beneficiaries, then the in-law spouse shall be deemed to have predeceased the spouse as effective on the date of such judgment, and all provisions of this TRUST AGREEMENT, and any trust formed hereunder, shall be interpreted accordingly.
5. PRENUPTIAL AGREEMENT
For the minor children not currently married or any future remarriage during the term of this TRUST AGREEMENT, any new spouse MUST sign a prenuptial agreement concerning the distribution of this TRUST income.
SECTION 3. TRUST DISTRIBUTION PROVISIONS
A. DISTRIBUTIONS DURING GRANTOR'S LIFETIME
1. The CO-TRUSTEE shall hold the quarterly principal income described in the Trust Estate in TRUST and to disburse the interest derived from the principal on a quarterly basis to or for the benefit of the following persons by the described portions thereof:
a. PORTIONS
RELATION AGE NAME RATE ADDRESS STATE
GRANTOR ___ __________________________ ___ ________________________ _______________________
BENEFICIARY ___ __________________________ ___ ________________________ _________
BENEFICIARY ___ __________________________ ___ ________________________ _________
BENEFICIARY ___ __________________________ ___ ________________________ _________
BENEFICIARY ___ __________________________ ___ ________________________ _________
b. It is the express desire of the GRANTOR that the CO-TRUSTEE apply quarterly income liberally by electronic deposit to beneficiary personal accounts, without concern for the retention of any monies for the future or remainder beneficiaries.
c. It is the express desire of The GRANTOR that the CO-TRUSTEE apply any necessary deductions such as standard income taxes, insurances, and administration fees upon such distribution of quarterly interest.
2. The CO-TRUSTEE may accumulate any of the net income not paid or applied for the benefit of the Lifetime Beneficiary, and add it to the principal of this TRUST at least quarterly and thereafter to hold, administer, and dispose of it to the surviving beneficiaries as part of the Trust Estate according to the portions listed herein.
B. DISTRIBUTIONS FOLLOWING GRANTOR'S SEVENTIETH BIRTHDAY
1. PRINCIPLE
2. INCOME
3. INSURANCES
4. RESPONSIBILITIES
C. DISTRIBUTIONS FOLLOWING DEATH OF GRANTOR
1. CO-TRUSTEE to make payments for taxes, bequests, and other items.
To the extent that the CO-TRUSTEE is either requested in writing by the executor or the personal representative of the GRANTOR's estate, or required as a legal obligation of this TRUST under federal or applicable state law, the CO-TRUSTEE shall pay:
a. Any expenses of GRANTOR's last illness and funeral, as well as any of GRANTOR's debts, as soon as possible after GRANTOR's death as would be advantageous to the administration of GRANTOR's estate. These debts however shall not include:
i) payment in full of obligations secured by mortgages or real estate or cooperative apartments, which debts the CO-TRUSTEE shall only pay in the sole and absolute discretion of the CO-TRUSTEE; or
ii) payment in full of debts owing insurance companies secured by insurance policies, which debts shall first be satisfied out of the proceeds of the policies securing them.
iii) This provision shall not revive any of GRANTOR's debts barred by the statute of limitations.
b. Any cash bequests and general legacies for which the GRANTOR's estate lacks sufficient cash and marketable securities; and
c. All estate, inheritance, succession, transfer, and other death taxes imposed by any domestic or foreign jurisdiction by reason of GRANTOR's death upon GRANTOR's taxable estate for the purposes of any such tax to the extent required:
i) under the provisions of this TRUST;
ii) in the discretion of the CO-TRUSTEE
(a) Such payments shall be charged against and paid from the property disposed of under this TRUST which would not qualify for the unlimited marital and charitable deductions, if applicable. To the extent that there is insufficient property meeting such criteria, such payments shall be charged against other assets under this TRUST.
(b) Notwithstanding anything herein to the contrary, the following taxes (and any corresponding state or foreign taxes) are, however, excluded from the previous direction and shall be apportioned and paid in the manner provided by applicable law (including without limitation state apportionment law and Code Sections 2207, 2207A, and 2207B) taking into account provisions of the instrument governing such property:
i) taxes on general power of appointment property includable in GRANTOR's gross estate under Code Section 2041;
ii) any generation-skipping transfer ("GST") tax under Chapter 13 of the Code, which shall be charged to the property constituting the Generation-skipping transfer on which such tax is imposed, as provided in Code Section 2603(b); and
(c) Taxes on any other assets included in GRANTOR's estate, but not passing under GRANTOR's last will and testament or this Trust, shall be apportioned against the legal owners of such assets and they shall not, unless required by federal or WEST VIRGINIA law, be paid out of this Trust.
(d) The CO-TRUSTEE shall not be liable to any person for payments made in reliance on the written request of the executor or personal representative of the GRANTOR's estate, or made in reliance on an opinion of counsel that such taxes are required to be paid as a legal obligation of this Trust under federal or applicable state law.
d. Notwithstanding anything herein to the contrary, the CO-TRUSTEE shall not distribute to GRANTOR's estate the proceeds of any life insurance policy to pay debts, liens, or other claims, which would not otherwise be subject to such debts, liens or other claims.
2. Distributions to Spouse of GRANTOR Subject to Renunciation.
a. The CO-TRUSTEE shall distribute the remaining Trust Estate to GRANTOR's spouse, should she survive GRANTOR for Ninety (90) days. Should GRANTOR's spouse not survive GRANTOR for Ninety (90) days, the CO-TRUSTEE shall distribute the Trust Estate as provided in the provision below, "Distribution To Multiple Children's Trusts".
b. Should GRANTOR's spouse renounce any portion or all of this distribution, and such renunciation is effective for purposes of federal income tax and applicable state law, such distribution shall instead be distributed as provided in the following paragraphs:
i) The portion of such assets renounced which equal the maximum dollar amount that would be taxed for federal estate tax purposes at marginal federal estate tax rates which are less than the then highest marginal federal estate tax rate shall be distributed to, and become part of, the Credit Shelter Trust, established herein. The purpose and intent of this provision is to permit GRANTOR's surviving spouse to determine to take advantage of the graduated federal estate tax rates in GRANTOR's estate where GRANTOR pre-deceases GRANTOR's spouse.
ii) Any assets renounced by GRANTOR's spouse above the amount provided for in the preceding paragraph shall be distributed in accordance with the provision "Distribution To Multiple Children's Trusts", below.
3. Applicable Exclusion (By-Pass/Credit Shelter) Trust for GRANTOR's Surviving Spouse.
a. If GRANTOR's spouse survives GRANTOR, then the CO-TRUSTEE shall set aside, in trust as provided below, the largest amount of assets which will not result in any federal estate tax payable in GRANTOR's estate after giving effect to the unified credit to which GRANTOR's estate is entitled, as well as any other credits applicable to GRANTOR's estate. In determining the credits applicable, state death tax credit shall only be considered to the extent that it will not result in an overall increase in the aggregate (state and federal) death tax liability due as result of GRANTOR's death. The amount so calculated shall be reduced by the following:
(i) The value of property transferred under the provisions of GRANTOR's will, and property which passes outside of GRANTOR's Will, which is included in GRANTOR's gross estate and which does not qualify for the marital deduction (or for which no marital deduction is claimed in GRANTOR's estate); and
(ii) Administration expenses and principal payments on debts that are not allowed as deductions for GRANTOR's federal estate tax; and
(iii) the amount of any adjusted taxable gifts as defined under Code Section 2001, which were made by GRANTOR after December 31, 1976. For the purpose of establishing the amount disposed of by this provision the values finally fixed in the federal estate tax proceeding relating to GRANTOR's estate shall be used.
In making the determinations required under this provision it is GRANTOR's intent, but not requirement, that this applicable exclusion (unified Credit) Shelter Trust be funded so as to make the maximum use of GRANTOR's unified credit, even if the result is a reduction in the amount to be given out-right to GRANTOR's spouse, or for the benefit of GRANTOR's spouse in a QTIP or QDOT Trust, if any, below.
b Any Credit Shelter Trust established under the preceding provision of this Trust shall be administered as follows:
i) The CO-TRUSTEE shall hold, manage and invest the amounts held in this Credit Shelter Trust as a separate trust, and in accordance with the provisions herein. The CO-TRUSTEE shall collect and receive any income on assets in the Credit Shelter Trust, and shall pay it to the extent and at such times as the CO-TRUSTEE, in accordance with the Standard For Payment (set forth below), for such one or more members of a class consisting of GRANTOR's spouse, and GRANTOR's Children, and other descendants living from time to time, (collectively, the "Recipients"). Any net income not so paid over or applied for the benefit of the persons named in this provision, shall be accumulated and added to the principal of this Credit Shelter Trust, at least annually, and thereafter shall be held, administered and disposed of as a part of this Credit Shelter Trust.
ii) The CO-TRUSTEE is also authorized to pay to, or apply for the benefit of, one or more members of a class consisting of the Recipients such parts of the principal of the trust as the CO-TRUSTEE in absolute discretion shall deem necessary or advisable in accordance with the Standard For Payment, set forth below. These payments and applications may be made irrespective of the fact that such payments may exhaust the principal of the trust being held for the benefit of any persons. The determinations of the CO-TRUSTEE as to the amount of principal payments or applications under this provision shall be final and conclusive on all persons with any interest in this Trust. Upon the making of any payments or applications under this provision the CO-TRUSTEE shall be fully released and discharged from any further liability or accountability.
iii) GRANTOR's spouse shall have the right to request of the CO-TRUSTEE of this Credit Shelter Trust to pay over to such surviving spouse, upon written request, out of the principal of this Credit Shelter Trust, in each successive calendar year commencing with the calendar year in which GRANTOR's death occurs, a sum not exceeding the greater of Five Thousand Dollars ($5,000) or Five Percent (5%) of the assets of the principal of this Credit Shelter Trust valued as of the date of the receipt of such request, provided, however, that only one such request may be made in any one calendar year, and such right to withdraw sums of principal shall not be cumulative from year to year.
c. This Credit Shelter Trust shall be irrevocable.
B. Remaining Assets; Secondary Distribution Provisions.
All the rest and remainder of the Trust Estate and any accumulated but unpaid income of any Trust formed hereunder, wherever situated, not distributed pursuant to the provisions above, ("Remaining Trust Estate") shall be disposed of in accordance with the provision entitled "Remaining Trust Estate Distributed in Equal Shares To Specified Beneficiaries".
1. Remaining Trust Estate Distributed in Equal Shares To Specified Beneficiaries.
a. The CO-TRUSTEE shall divide the Remaining Trust Estate into the number of equal shares required by this provision, and distribute same to the persons named or referred to below.
b. Should any such gift lapse, then the remaining persons shall continue to share in such Trust Estate, in the proportions set forth herein.
c. Any assets not distributed pursuant to the above shall be distributed to GRANTOR's heirs at law under the laws of descent and distribution of the State as if GRANTOR had died intestate at that time.
d. However, in no event shall GRANTOR or GRANTOR's estate or GRANTOR's spouse or GRANTOR's spouse's estate have any reversionary or similar interest in this trust or the any assets contained herein.
C. Beneficiary Under Age Twenty One (21).
a. If any individual ("Minor-Beneficiary") under the age of Twenty One (21) years (who is not specifically made subject to a prior provision of this Trust governing distributions to such Minor-Beneficiary) becomes entitled to any property under any Trust established under this TRUST AGREEMENT, or any property from any trust created hereunder upon the termination thereof, the share set aside for such person shall be held further in trust by the CO-TRUSTEE for the following uses and purposes: to manage, invest and reinvest the same, to collect the income thereof and, to distribute such principal and interest in accordance with the Distribution by Age provided for in the following provisions
("Distribution By Age"):
(1) To pay One (1) of such parts to the issue of each deceased Minor-Beneficiary, per stirpes, according to the provisions of this provision governing distributions to a Minor-Beneficiary Under Age Tweinty One (21).
(2) To pay One (1) of such parts to each Minor-Beneficiary who has attained the age of Twenty One (21) years.
(3) To pay Two-Thirds (2/3) of One (1) of such parts to each of the Minor-Beneficiary who has attained the age of Thirty (30) years but has not attained the age of Twenty One (21) years, and to hold the remainder of such part according to the terms and conditions of this provision.
(4) To pay One-Third (1/3) of One (1) of such parts to each Minor-Beneficiary who has attained the age of Twenty Five (25) years but has not attained the age of Twenty One (21) years, and to hold the remainder of such part according to the terms and conditions of this provision.
(5) To hold One (1) of such parts or the remaining portion thereof (whichever shall be applicable for each Minor-Beneficiary) as a separate trust fund in trust for the benefit of each Minor-Beneficiary who shall not have attained the age of Twenty One (21) years, and to manage, administer, invest and reinvest the principal of such part, collect and receive the income and principal thereof, and pay over and distribute the income and principal as follows:
(a) Until the termination of the trust, the CO-TRUSTEE shall pay over to each Minor-Beneficiary who has reached the age of Eighteen (18) years all of the net income of such part, at convenient intervals but not less often than annually.
(b) Until the Minor-Beneficiary for whose benefit a part is held in trust attains the age of Twenty One (21) years, the CO-TRUSTEE, at any time that they deem it advisable, may apply for the benefit of such Minor-Beneficiary, or pay over to such Minor-Beneficiary, so much, all or none of the principal of such Minor-Beneficiary's part, as the CO-TRUSTEE shall deem advisable to provide for such Minor-Beneficiary in accordance with the Standard For Payment, (defined below).
(c) Upon any Minor-Beneficiary reaching the age of Twenty Five (25) years the CO-TRUSTEE shall distribute to that Minor-Beneficiary One-Third (1/3) of the remaining principal of that part. Upon any Minor-Beneficiary reaching the age of Thirty (30) years the CO-TRUSTEE shall distribute to that Minor-Beneficiary One-Half (1/2) of the remaining principal of that part. Upon any Minor-Beneficiary reaching the age of Twenty One (21) years the CO-TRUSTEE shall distribute to that Minor-Beneficiary any remaining principal of that part, together with all undistributed income.
(d) Upon the death of such Minor-Beneficiary before reaching the age of Twenty One (21) years:
i) The CO-TRUSTEE shall transfer the principal of the trust to such persons other than the Minor-Beneficiary, his or her estate, but including his or her creditors and the creditors of his or her estate, to such extent, in such amounts or proportions, and in such lawful interests or estates, whether absolute or in trust, as such Minor-Beneficiary may by his or her last will and testament appoint by a specific reference to this power.
ii) If the power of appointment is for any reason not validly exercised in whole or in part by such Minor-Beneficiary, the principal of the trust, to the extent not validly appointed by such Minor-Beneficiary, shall, upon his or her death, be transferred to such Minor-Beneficiary's then living descendants, per stirpes, or, if no such descendant is then living, then the principal of the trust, shall upon his or her death, be transferred to in equal shares to such Minor-Beneficiary's siblings then living, or the issue of any deceased sibling, per stirpes. If there are living siblings or issue of any deceased sibling, then the principal of the trust, shall be transferred to the GRANTOR's issue, per stirpes.
Such shares to be disposed of as provided for in this provision. Any Minor-Beneficiary of such amounts under the age of Twenty One (21) shall have such amounts held in trust as provided herein, unless the application of the provision concerning the Rule of Perpetuities would require otherwise.
b. If any tangible personal property shall at any time be held as part of such individual's trust, the CO-TRUSTEE shall have no duty to convert the same into productive property and the expenses of the safekeeping thereof, including insurance, shall be a proper charge against the assets of the trust.
c. If the CO-TRUSTEE shall determine at any time not to transfer in trust or not to continue to hold in trust any part or all of such property, they shall have full power and authority to transfer and pay over such property, or any part thereof, without bond, to such individual, if an adult under the law of the state of his or her domicile at the time of such payment, or to his or her parent, the guardian of his or her person or property, or to a custodian for such individual under any Uniform Gifts to Minors Act or Uniform Transfers to Minors Act, pursuant to which a custodian is acting or may be appointed, or to the person with whom such individual resides.
d. The receipt of such individual, if an adult, or the parent, guardian or custodian or any other person to whom any principal or income is transferred and paid over pursuant to any of the herein provisions shall constitute a full discharge to the CO-TRUSTEE from all liability with respect to such transfer.
D. Generation Skipping Transfer Tax (GSTT) Provisions.
(This may include designating specific trusts or gift plans designed to maximize the use of the annual gift tax exclusion and $1 million (to be indexed) GST exemption amount. This planning has not been addressed in this trust.)
With respect to the tax on generation-skipping transfers set forth in Chapter 13, the Generation Skipping Transfer Tax (the "GSTT") of the Code, the GRANTOR grants the following powers to the CO-TRUSTEE:
1. The power to allocate any portion of the GRANTOR's GSTT exemption, as set forth in Code Section 2631(a), as amended, or any successor statute, not allocated during the GRANTOR's lifetime, or by GRANTOR's executor, to any property with respect to which the GRANTOR is treated as the transferor for purposes of Chapter 13 of the Code, including, but not limited to, any property transferred by the GRANTOR during the GRANTOR's lifetime, at such time and in such manner as set forth in Code Section 2632 or any successor statute and the regulations promulgated thereunder.
2. The power to divide property in any Trust or part thereof being held under this TRUST AGREEMENT with an inclusion ratio, as defined in Code Section 2642(a)(1), of neither One (1) nor Zero (0) into Two (2) or more separate Trusts representing fractional shares of the property being divided, with One (1) or more of said shares having an inclusion ratio of Zero (0) and the other share or shares having an inclusion ratio of One (1).
3. With respect to all, or any part, of the principal of any such Trust or part thereof being held under any trust formed under this TRUST AGREEMENT which may be subject to the GSTT, by an instrument filed with the Trust records:
a. The power to create in a beneficiary, other than GRANTOR's spouse, SPOUSE NAME, a general power of appointment within the meaning of Code Section 2041, as amended, that may dispose of the property upon the death of that beneficiary.
i) However, the exercise of such power shall require the consent of the CO-TRUSTEE, other than the beneficiary, provided that such consent requirement shall not prevent the power from being treated as a general power of appointment as defined in Code Section 2041.
ii) If such consent requirement prevents the power from being treated as a general power of appointment, said requirement shall be interpreted and applied in the minimum manner necessary in order to qualify it as a general power of appointment.
b. The power to eliminate such a general power of appointment for all or any part of the principal as to which such power was previously created.
c. The power to irrevocably release the right to create or eliminate such power.
d. The power to divide the Trust Estate into Two (2) fractional shares based upon the then portion of the Trust Estate that would be included in the gross estate of the beneficiary holding such power if he or she died immediately before such division (in which case the power shall be over the entire principal of One (1) share and over no part of the other share) and each such share shall be administered as a separate trust.
i) However, the CO-TRUSTEE, other than any beneficiary, shall in their sole discretion have the right to thereafter combine such separate trusts into a single trust.
ii) In authorizing such action, the GRANTOR's expresses hope, but does not require, that a general power will be kept in effect when the CO-TRUSTEE, other than any beneficiary, believe the inclusion of the property affected by such general power of appointment in the beneficiary's gross estate, may achieve a significant savings in transfer taxes by having an estate tax rather than a GSTT imposed on the property subject to the general power of appointment, which may also permit a greater use of the GSTT exemption under Code Section 2631(a) of any beneficiary, or spouse of any beneficiary.
e. The power to exercise the special election provided by Code Section 2652(a)(3) as to any trust created for the benefit of GRANTOR's spouse which qualifies for the marital deduction. If the CO-TRUSTEE shall so elect and an allocation of GST exemption is made to such trust, the CO-TRUSTEE may, in such CO-TRUSTEE's sole discretion, set apart a fractional share of the such trust in a separate trust to cause its inclusion ratio to be zero.
3. Distribution Standard for Special Beneficiary of Person/Trust.
The following restrictions and limitations shall, notwithstanding anything herein to the contrary, apply to payments to, or for the benefit of the Special Beneficiary.
a. The CO-TRUSTEE shall have the discretion to pay over to or for the benefit of the Special Beneficiary, part of the trust income as the CO-TRUSTEE shall determine to be advisable for his special needs.
b. Special needs is defined to include such Beneficiary's support, maintenance and comfort over and above such Beneficiary's basic support, maintenance, education, medical and dental care paid for by federal, state, or local government, or agency or department thereof.
c. Special needs includes, without limitation, any and all services and items which promote the happiness, welfare and development of the Special Beneficiary.
d. The payments under this provision shall only continue until the earlier to occur of the death or entry into either a regular nursing home or a skilled nursing facility or health related facility, at which time the CO-TRUSTEE's discretion to distribute income to the Special Beneficiary shall cease.
e. The CO-TRUSTEE shall have no right to invade the principal of the trust for the Special Beneficiary, and the Special Beneficiary shall at no time have any right to demand any part of the principal of the Trust Estate.
f. The rights created hereunder are intended to supplement, and not to replace, any and all available government benefits or entitlements, and to provide supplemental support for the Special Beneficiary.
i) Therefore, Grantor intends that neither the income nor the principal of this trust be considered income or assets of the Special Beneficiary, for any purpose set forth in any federal, state or local law, rule or regulation.
ii) Neither this Trust nor the interests of the Special Beneficiary in the income thereof shall be liable for any present or future debt to any federal, state or local government, or any agency, or any department thereof, or to any creditor, and the Special Beneficiary, or such Beneficiary's guardians, conservators or committees (if appointed) shall not have the power to anticipate, alienate or encumber any interest in the income or principal of this Trust.
iii) The CO-TRUSTEE's exercise of discretion shall not be subject to any court ordered payout of the income or principal of such trust to any creditor of the Special Beneficiary, governmental or other wise.
ARTICLE V. BENEFICIARIES OTHER POWERS AND RIGHTS.
SECTION 1. BENEFICIARY'S ANNUAL DEMAND POWER
A. Immediately following the transfer of any property or other assets listed on Schedule A (including the initial contributions made upon the formation of this Trust) attached or after any Addition to the Trust Estate, the Child, (individually, the "Holder") shall have the right to withdraw up to the amount of such Addition.
1. This demand power shall only apply to the extent that the donor or transferor of such property or Addition could claim a gift tax annual exclusion under Code Section 2503(b) if said property or Addition had been given outright to the Holder (or in the event of more than one Holder, to the Holders in the shares permitted hereunder).
2. Notwithstanding anything herein to the contrary, the total withdrawals by any Holder, under this provision, for any calendar year shall not exceed the lesser of:
a. the maximum annual gift tax exclusion allowable under Internal Revenue Code Section 2503(b), as amended, per donor;
b. the proportion of the Addition during any year divided by the number of beneficiaries during such year who may make a demand which would qualify a portion of such Addition as a gift of a present interest; or
c. the proportion of the Addition during any year allocated to the beneficiaries during such year in the CO-TRUSTEE's discretion where the CO-TRUSTEE holds a sprinkle power between the various beneficiaries if and only if such allocation by the CO-TRUSTEE is deemed to qualify as a proper allocation of an Addition for purposes determining an Annual Demand power under applicable tax laws.
3. This demand power shall take precedence over any other power or discretion granted to the CO-TRUSTEE.
4. This demand power shall not be interpreted to limit the income distributions which may be made by the CO-TRUSTEE to the beneficiaries.
B. With respect to this demand power, the following rules shall apply:
1. The Holder can exercise this demand power by a written request delivered to the CO-TRUSTEE.
2. If the Holder is unable to exercise this demand power because of a legal disability, including minority, his or her parent, guardian, or personal representative (including but not limited to committee or conservator) (collectively, "Guardian") may make the demand on the Holder's behalf.
a. However, in no event can Grantor make the demand for the Holder, regardless of Grantor's relationship to the Holder.
b. Any property received by a Guardian shall be held by such Guardian for the use and benefit of the Holder under a legal disability for whom such Guardian acted until such legal disability ends, if it so ends.
3. The CO-TRUSTEE must reasonably notify, in writing, the person who would exercise the Holder's demand power of its existence as soon as practical after the contribution of property set forth in Schedule A or any Addition, but not less than each year, of the amount of any Additions made to the Trust Estate that are subject to this demand power.
4. The Holder's demand power is noncumulative and lapses as soon as and to the maximum extent that such lapse shall not result in a release by the Holder of a general power of appointment under Code Section 2514(c) and 2041(b)(2), but in no event shall such demand power lapse prior to the earlier of the following events:
a. The later of
(i) the last day of the calendar year in which the Addition was made;
(ii) Thirty (30) calendar days following the CO-TRUSTEE sending the Holder notice of such contribution; or
b. The day preceding the date of the death of such Holder.
c. The written waiver of such power by the Holder.
5. If any Holder possesses any demand powers related to more than one Addition, such demand powers shall lapse in the order in which such powers came into being.
6. The CO-TRUSTEE may satisfy the Holder's demand for a distribution by distributing cash, other assets, or fractional interests in other assets, as the CO-TRUSTEE in the CO-TRUSTEE's discretion, deems appropriate.
C. The CO-TRUSTEE shall give reasonable written notice to each Holder entitled to exercise the right of withdrawal of any Additions.
D. This demand power shall not be interpreted to limit the income distributions which may be made by the CO-TRUSTEE to the beneficiaries. However, this demand power shall supersede any restrictions on principal distribution hereunder which would prevent any Holder from exercising such Holder's demand power hereunder.
ARTICLE VI. CO-TRUSTEE - RIGHTS, OBLIGATIONS AND POWERS
SECTION 1. CO-TRUSTEE SELECTION
A. ADDITIONAL OR SUCCESSOR CO-TRUSTEE
1. If institutional CO-TRUSTEE is unable or unwilling to serve then selection will be according to further provisions included within this TRUST AGREEMENT.
2. If GRANTOR named above to serve as CO-TRUSTEE is unable or unwilling to serve, then additional or successor CO-TRUSTEE will be selected in the following order:
ALTERNATE ___ __________________________ ___ _______ _________
ALTERNATE ___ __________________________ ___ _______ _________
ALTERNATE ___ __________________________ ___ _______ _________
ALTERNATE ___ __________________________ ___ _______ _________
ALTERNATE ___ __________________________ ___ _______ _________
a. CO-TRUSTEE MAY APPOINT ADDITIONAL CO-TRUSTEE
I) If at any time any person is the last acting CO-TRUSTEE under any TRUST created hereunder, such CO-TRUSTEE is authorized to designate, in such CO-TRUSTEE's reasonable discretion, any individual or succession of individuals, or bank or trust company as CO-TRUSTEE, or successor CO-TRUSTEE, to act jointly as CO-TRUSTEE, or jointly or independently as successor CO-TRUSTEE.
ii) This designation shall be made by the CO-TRUSTEE by written instrument signed and acknowledged by the CO-TRUSTEE making the appointment and shall become effective upon the successor CO-TRUSTEE qualifying as required under applicable law.
iii) any such designation of a CO-TRUSTEE may be revoked by the acting CO-TRUSTEE at any time before the designated CO-TRUSTEE appointment becomes effective.
iv) any such designation of a successor CO-TRUSTEE, or any revocation of such designation, pursuant to the authority granted in this provision, shall be in a written instrument, duly executed and acknowledged by the CO-TRUSTEE exercising such authority and filed in the court which has jurisdiction over this TRUST.
B. REPLACEMENT OF INSTITUTIONAL CO-TRUSTEE
1. A unanimous vote of all current income beneficiaries, or by the written notice of GRANTOR (where the successor CO-TRUSTEE is independent of GRANTOR ), it shall be permissible to remove an institutional CO-TRUSTEE, if one should then be serving, for "cause", as defined by the following thirteen factors:
a. The legal incapacity of a CO-TRUSTEE.
b. The willful or negligent mismanagement by the CO-TRUSTEE of the trust's assets.
c. The abuse or abandonment of, or inattention to, the trust by the CO-TRUSTEE.
d. A federal or state charge against the CO-TRUSTEE involving the commission of a felony or serious misdemeanor.
e. An act of stealing, dishonesty, fraud, embezzlement, moral turpitude, or moral degeneration by the CO-TRUSTEE.
f. The use of narcotics or excessive use of alcohol by the CO-TRUSTEE.
g. The poor health of the CO-TRUSTEE such that the CO-TRUSTEE is physically, mentally, or emotionally unable to devote sufficient time to administer the trust.
h. The failure by the CO-TRUSTEE to comply with a written fee agreement or other written agreement in the operation of the Trust.
i. The failure of a corporate CO-TRUSTEE to appoint a senior officer with at least five (5) years of experience in the administration of trusts to handle the trust account.
j. Changes by a corporate CO-TRUSTEE in the account officer responsible for handling the trust account more frequently than every five (5) years (unless such change is made at the request of or with the acquiescence of the other CO-TRUSTEE).
k. The relocation by a CO-TRUSTEE away from the location where the trust operates so as to interfere with the administration of the trust.
l. A demand from the CO-TRUSTEE for unreasonable compensation for such CO-TRUSTEE's services.
m. Any other reason for which a court of competent jurisdiction, in the State, would remove a CO-TRUSTEE.
2. Notice of the removal and replacement of an institutional CO-TRUSTEE shall only be given once in any Twenty Four (24) month period by the GRANTOR or once in any Twenty Four (24) month period by the current income beneficiaries.
a. In the event that any aspect of this provision could result in the inclusion of any portion of the Trust Estate in GRANTOR's estate, than the CO-TRUSTEEs shall have the express authority to modify and limit this provision to prevent such inclusion.
b. Notice of any replacement of an institutional CO-TRUSTEE shall be given to the GRANTOR (if still alive), the then serving CO-TRUSTEE, the next successor CO-TRUSTEE named hereunder, and the current income beneficiaries.
C. SELECTION OF CO-TRUSTEE WHERE NO CO-TRUSTEE SERVING
In the event that there should not be a CO-TRUSTEE acting hereunder for a period of Thirty (30) days, then GRANTOR appoints as a successor CO-TRUSTEE the individual, or the bank, or the trust company, to be designated by an instrument in writing signed by the law firm of __________________________, or any successor firm if and only if such firm or successor firm determines to act hereunder in its discretion and without obligation.
Notice of same shall be given as provided in this paragraph. Such Notice shall be delivered to:
1. The GRANTOR. If the GRANTOR is not alive, or has been adjudicated incompetent by a court then the Notice shall be delivered to the legal representatives of the GRANTOR, GRANTOR's committee, conservator or guardian, or the estate of the GRANTOR.
2. Notice to the CO-TRUSTEE shall be made to the last CO-TRUSTEE serving hereunder. Such Notice shall be given to the legal representatives of such CO-TRUSTEE, such CO-TRUSTEE's committee, conservator or guardian, or the legal representative of the estate of such CO-TRUSTEE.
3. Any adult current income Beneficiaries under this Trust.
4. Notice may also be given to such person as designated by a court of competent jurisdiction.
These procedures are referred to as the "Notification Procedure".
D. CO-TRUSTEE ACCEPTANCE
The acceptance of CO-TRUSTEEship by any CO-TRUSTEE not a party to this TRUST AGREEMENT shall be evidenced by an execution of a counterpart to this TRUST AGREEMENT delivered in accordance with the Notification Procedure.
E. CO-TRUSTEE RESIGNATION
1. Any CO-TRUSTEE hereunder may resign at any time without obtaining prior judicial approval.
a. Such resignation shall be deemed complete upon the delivery of an instrument in writing declaring such resignation to the GRANTOR, if the GRANTOR is alive, and to the remaining CO-TRUSTEE hereunder, or should there be no remaining CO-TRUSTEE, to the successor CO-TRUSTEE hereunder, or in accordance with the Notification Procedure defined above.
b. Such resigning CO-TRUSTEE shall promptly deliver the assets of the Trust Estate to the remaining or successor CO-TRUSTEE hereunder.
2. The resigning CO-TRUSTEE shall, at the request of the remaining or successor CO-TRUSTEE hereunder, promptly deliver such assignments, transfers and other instruments as may be reasonably required for fully vesting in such remaining or successor CO-TRUSTEE all right, title and interest in the Trust Estate.
3. If any CO-TRUSTEE named in the preceding provisions is, or becomes, divorced or legally separated from RESIGNATION DIVORCE-NAME to whom such person was married at the date this TRUST AGREEMENT was executed, then such person shall cease to serve as CO-TRUSTEE of any trust created under this TRUST AGREEMENT, and such CO-TRUSTEE shall immediately be deemed to have tendered a resignation hereunder.
SECTION 2 CO-TRUSTEE RIGHTS AND OBLIGATIONS
A. CO-TRUSTEE COMPENSATION
1. Each CO-TRUSTEE acting hereunder shall be entitled to withdraw from the Trust Estate, without obtaining court or other approval, the compensation which is allowed to a CO-TRUSTEE under the laws of the State which govern this TRUST AGREEMENT, computed in the manner and at the rates in effect at the time the compensation is payable.
2. Where an institutional CO-TRUSTEE is serving hereunder, such institutional CO-TRUSTEE shall be entitled to the compensation set forth in such institutional CO-TRUSTEE's regularly issued fee and compensation schedule which is applicable to such institutional CO-TRUSTEE's trust customers at the time the services are rendered, or as otherwise agreed in writing.
3. The commissions and fees payable from income for any given tax year may be paid from either the Trust income of that year or from the trust income of any other tax year. However, the preceding sentence shall not be applied in the case of any Trust hereunder for which a marital deduction is sought. In such instances compensation and fees shall be payable from principal or income or partly from each in the discretion of the CO-TRUSTEE.
B. NO BOND REQUIRED
No bond or security of any kind shall be required of any CO-TRUSTEE acting hereunder or appointed pursuant to the provisions hereof.
C. ACCOUNTING
1. No CO-TRUSTEE acting under this TRUST AGREEMENT is under any duty to render a judicial accounting upon resignation or otherwise. However, the CO-TRUSTEE may submit any account to a court for approval and settlement.
2. The CO-TRUSTEE may render an accounting upon the termination of any trust created under this Trust, and at any other times which the CO-TRUSTEE may deem necessary or advisable.
a. The written approval of all persons, who are not subject to a legal disability, and who are entitled to receive the net income of any trust created under this TRUST AGREEMENT, and of all persons not subject to a legal disability then presumptively entitled to the principal of any trust, as to all matters and transactions shown in the account, shall be final, binding and conclusive upon all such persons, and upon all persons who may then be, or thereafter become, entitled to any income or principal of any trust created under this TRUST AGREEMENT.
b. The written approval or assent of the persons mentioned in this provision shall have the same force and effect in discharging the CO-TRUSTEE as a decree by a court of competent jurisdiction.
c. However, any such written approval shall not enlarge or shift the beneficial interest of any beneficiary of any trust created under this TRUST AGREEMENT.
3. If the CO-TRUSTEE is accounting to another fiduciary, then the written approval of the other fiduciary shall be final, binding and conclusive upon all persons beneficially interested in the Trust Estate represented by such other fiduciary.
D. CO-TRUSTEE RESPONSIBLE FOR CARE OF ASSETS COMPRISING TRUST ESTATE
1. The CO-TRUSTEE shall have the entire care and custody of all of the assets comprising the Trust Estate and shall keep the assets with the same care as given to other property held by him in a fiduciary capacity.
a. The CO-TRUSTEE shall become responsible for the Trust Estate only when, as and if the same shall have been received by such CO-TRUSTEE.
b. No CO-TRUSTEE shall be responsible for any act or omission of any prior CO-TRUSTEE, nor shall any CO-TRUSTEE be under a duty to take any proceedings against any prior CO-TRUSTEE, but shall be entitled to rely on the propriety of the actions of the prior CO-TRUSTEE as such actions appear from the records and accounts of the prior CO-TRUSTEE.
c. In determining which assets constitute the Trust Estate, a CO-TRUSTEE shall be responsible only for the making of reasonable inquiry from records of the prior CO-TRUSTEE reasonably available to such CO-TRUSTEE.
E. INVESTMENT GOALS
1. CO-TRUSTEE Responsibility For Implementing Investment Policy.
a. The Trust Estate may consist of securities of one issuer, or securities of a few issuers, or a diversified portfolio of various types and issuers of securities.
b. The CO-TRUSTEE is not directed to distribute or dispose of any particular securities or other assets which may come into the CO-TRUSTEE's possession, where such distribution or disposition is primarily for the purpose of diversification of investment holdings of the Trust Estate.
c. The CO-TRUSTEE is not required to liquidate or adjust holdings solely because such holdings have a limited market.
d. The CO-TRUSTEE is not obligated to diversify the investment holdings of the Trust Estate and is hereby indemnified and held harmless from any such failure to diversify.
2. Investment Standards.
a. In addition to the investment powers and discretion conferred on the CO-TRUSTEE under this Trust, the CO-TRUSTEE shall not:
i) acquire and retain investments not regarded as traditional or prudent for trusts,
ii) acquire allocations of investments within the Trust's portfolio which would not be deemed prudent or advisable,
iii) include investments and/or investment strategies that would be forbidden by the prudent investor standard applicable at such time.
b. The CO-TRUSTEE may therefore invest:
i) any portion or even all of the Trust Estate in any manner in the CO-TRUSTEE's discretion,
ii) including in any type of zero coupon municipal bonds or
iii) treasury certificate or
iv) savings bonds
v) and so forth.
c. This authorization, however, shall not be given, and shall not be executed to such extent that, where such investment must be made in a particular manner to avoid an adverse tax result, by way of example and not limitation the disqualification of a trust for the marital deduction where such deduction would be advisable or intended.
d. This provision is also intended, and shall be interpreted so as to, prevent the application of (and hereby to elect out of) the Prudent Investor Act of the State or any other similar or related Act.
e. The GRANTOR directs that all investments made by the CO-TRUSTEE to be made in conformity, to the extent feasible, with Islamic law.
i) Investments shall not be made, to the extent feasible, in securities of banking and other lending institutions, enterprises engaged in growing, distributing and marketing of tobacco or alcoholic beverage products, gambling or pornography.
ii) In the event of any issue as to the interpretation of applicable Islamic law, any CO-TRUSTEE hereunder may rely on the interpretation or advise of ______________________.
3. CO-TRUSTEE Authorized and Directed To Retain Specified Investment.
The CO-TRUSTEE is expressly authorized, in the exercise of the CO-TRUSTEE's discretion, to retain any interest in zero coupon municipal bonds or treasury certificates, which shall be at any time held as par of any Trust hereunder, and the CO-TRUSTEE shall not be liable to anyone whomsoever for any loss, liability or other detriment resulting, directly or indirectly, from the retention of such investment or interest.
F. LIMITATION ON CO-TRUSTEE LIABILITY
1. No CO-TRUSTEE shall be individually liable for any loss to, or depreciation in, the value of the Trust Estate occurring by reason of
a. the exercise or non-exercise of the powers granted to the CO-TRUSTEE under this Trust; or
b. a mistake in, or error of, judgment in the purchase or sale of any investment or the retention of any investment, so long as the CO-TRUSTEE shall have been acting in good faith.
2. Every act done, power exercised or obligation assumed by the CO-TRUSTEE, pursuant to the provisions of this TRUST AGREEMENT, shall be held to be done, exercised or assumed, as the case may be, by the CO-TRUSTEE acting in the CO-TRUSTEE's fiduciary capacity and not otherwise, and every person, firm or corporation contracting or otherwise dealing with the CO-TRUSTEE shall look only to the funds and property of the Trust Estate for payment under such contract or payment of any money that may become due or payable under any obligation arising under this TRUST AGREEMENT, in whole or in part, and no CO-TRUSTEE shall be individually liable for such matter even though the CO-TRUSTEE did not exempt itself from individual liability when entering into any contract, obligation or transaction in connection with or growing out of the Trust Estate.
3. The CO-TRUSTEE shall be liable for gross negligence and for such acts, neglect and defaults which constitute a breach of trust and which are committed in bad faith.
4. The CO-TRUSTEE shall not be liable to any person, including GRANTOR, for the removal of the GRANTOR as a CO-TRUSTEE, if CO-TRUSTEE acted in good faith on the certificates obtained in accordance with this provision.
G. CO-TRUSTEE CONSULTATION WITH COUNSEL
The CO-TRUSTEE may consult with legal counsel (who may be counsel to the GRANTOR) concerning any question which may arise with reference to the CO-TRUSTEE's duties or obligations under this TRUST AGREEMENT, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the CO-TRUSTEE in good faith and in accordance with the opinion of such counsel.
H. RECEIPT BY BENEFICIARY DISCHARGES CO-TRUSTEE
The receipt of any beneficiary upon distribution hereunder shall discharge the CO-TRUSTEE from any further obligation with respect to the property so distributed. Upon final distribution hereof, the CO-TRUSTEE shall be fully discharged, and this entire trust shall terminate.
SECTION 3. CO-TRUSTEE DECISION MAKING AND AUTHORITY
A. CO-TRUSTEE DECISION MAKING
1. Any authority, discretion or power granted to or conferred upon the CO-TRUSTEE by this Trust may be exercised by any such CO-TRUSTEE who shall be acting under this TRUST AGREEMENT at such time, or by such of them who shall be so designated by an instrument in writing executed by any other CO-TRUSTEE.
2. However, any individual CO-TRUSTEE acting alone and without any requirement for joint action is authorized and permitted to complete alone any ministerial and administrative acts, including but not limited to routine banking, investment, and brokerage transactions.
3. This paragraph, however, shall not be interpreted or applied in a manner that violates any restriction in the provisions governing an independent CO-TRUSTEE, person under legal obligation or applicable to a Holder.
4. Therefore, where the provisions governing an Independent CO-TRUSTEE apply, the Independent CO-TRUSTEE alone may make any such decisions or take any actions reasonably within the purview of such Independent CO-TRUSTEE.
5. Where there are more than Two (2) CO-TRUSTEEs at anytime the decision of a majority of them shall control and shall be binding on all of the CO-TRUSTEEs.
6. If Two (2) or more CO-TRUSTEEs are acting hereunder, the following provisions shall apply where the context permits:
a. The corporate or institutional CO-TRUSTEE shall have custody of the Trust Estate and of the books and records of the Trust.
b. With respect to any matter as to which the CO-TRUSTEEs have joint authority, a CO-TRUSTEE from time to time may delegate any or all of that CO-TRUSTEE's rights, powers, duties, and discretion as CO-TRUSTEE to the other CO-TRUSTEE, with the consent of the latter.
c. The CO-TRUSTEE may establish bank accounts and it shall be assumed unless specified otherwise in the application for such account that checks or drafts may be drawn on, or withdrawals made from, any such account on the individual signature of two designated CO-TRUSTEE.
d. A CO-TRUSTEE shall be presumed to have approved a proposed act or decision to refrain from acting if that CO-TRUSTEE fails to indicate approval or disapproval therefor within Thirty (30) days after written Notice requesting approval.
B. CO-TRUSTEE DISPUTE RESOLUTION
1. Where no majority decision can be reached, then the GRANTOR shall make the final decision which shall be final and binding on every CO-TRUSTEE.
2. This provision shall not supersede the provisions governing the Independent CO-TRUSTEE and support obligation, above.
3. However, in no event shall the persons named in this provision participate in a decision to remove a person serving as CO-TRUSTEE. or named ahead of such person as CO-TRUSTEE hereunder, except for gross negligence, misconduct, or disability.
C. CO-TRUSTEE DECISION IS FINAL AND CONCLUSIVE
1. The exercise by the CO-TRUSTEE of the discretionary powers herein granted with respect to the payment, distribution or application of principal or income of any trust created under this TRUST AGREEMENT is final and conclusive upon all persons and shall not be subject to any review whatsoever.
2. GRANTOR intends that the CO-TRUSTEE shall have the greatest latitude in exercising such discretionary powers, and that the persons entitled to receive the principal of any trust created under this TRUST AGREEMENT shall upon the termination of such trust be entitled only to such principal as may remain after the last exercise of the CO-TRUSTEE's continuing discretionary powers.
D. CO-TRUSTEE DECISIONS ARE NON-REVIEWABLE AND BINDING
Any decision to be made by the CO-TRUSTEE is to be made in such CO-TRUSTEE's discretion and shall be binding on all parties affected unless specifically provided to the contrary in this TRUST AGREEMENT.
E. COURT APPROVAL OF CO-TRUSTEE ACTS ARE NOT REQUIRED
No CO-TRUSTEE shall be required to obtain the approval of any court for any action of such CO-TRUSTEE unless such approval is required by law or by a specific requirement in this TRUST AGREEMENT.
F. LIMITATIONS ON CO-TRUSTEE DISCRETIONARY AUTHORITY
The following provision shall not apply to distributions made by GRANTOR where GRANTOR is serving as a CO-TRUSTEE:
1. Only the Independent CO-TRUSTEE shall:
a. Participate in any decision to exercise, or not to exercise, any discretionary power over payments, distributions, applications, appointments or accumulations of income or principal;
b. Exercise discretion to allocate receipts or expenses between principal and income;
c. Exercise any discretionary power with respect to any insurance policy held under this Trust insuring the life of such individual, or insuring the life of such individual's spouse;
d. Hold property as a custodian for a minor or as donee of a power during minority, or selecting any such custodian or donee;
e. Determine tax elections;
f. Amend or otherwise affect any beneficiaries withdrawal rights over additions to the Trust Estate of any Trust;
g. or Determine the selection of property to be allocated to a QTIP, QDOT or other qualifying marital deduction trust, if any, created under a preceding provision of this trust.
2. For these purposes, an Independent CO-TRUSTEE is defined as:
a. a CO-TRUSTEE who has no legal obligation to support the beneficiaries affected by any decision in the preceding paragraph,
b. and who cannot appoint Trust income or principal to himself or herself,
i) his or her creditors,
ii) his or her estate,
iii) creditors of his or her estate,
iv) or to or for the benefit of any child or other person to whom he or she owes a legal obligation of support and for which such appointment of income or principal would constitute a discharge of such legal obligation of support.
3. Notwithstanding anything in this Trust to the contrary, no CO-TRUSTEE shall make any decisions regarding the discretionary distribution of income or principal to himself or herself, or to or for his or her benefit.
4. In the event any CO-TRUSTEE is in a position where such a decision would have to be made, such CO-TRUSTEE shall not participate in such a decision and instead any CO-TRUSTEE shall make such decision. Further, if there is no CO-TRUSTEE then the next named successor CO-TRUSTEE under this TRUST AGREEMENT who is willing and able to participate, shall so make such decision.
5. Notwithstanding anything in this TRUST to the contrary, any restrictions on distributions provided in the provision below governing Distributions to a Person Under a Disability shall not apply to restrict any distributions to GRANTOR when GRANTOR is disabled, or following any period of GRANTOR's disability.
SECTION 4. CO-TRUSTEE ADMINISTRATIVE POWERS.
A. CO-TRUSTEE GENERAL POWERS
Except as specifically provided to the contrary in this TRUST AGREEMENT, the CO-TRUSTEE shall have in addition to, and not in limitation of, the powers granted elsewhere in this TRUST AGREEMENT, or the powers allowed by law, the following powers:
1. To invest and reinvest any assets comprising the Trust Estate in any securities or other property, whether real or personal, tangible or intangible, of any class, kind or nature (including an undivided interest in any one or more common trust funds), as the CO-TRUSTEE may deem advisable without regard to any restrictions of law on a CO-TRUSTEE's investments.
2. To exercise voting rights in person or by proxy, rights of conversion or of exchange, or rights to purchase or subscribe for stocks, bonds or other securities or obligations which may be offered to the holders of any asset, and to accept and retain any property which may be acquired by the exercise of any such right with respect to any stocks, bonds or other securities or obligation included in the Trust Estate.
3. To employ or retain accountants, custodians, agents, legal counsel, investment advisers, and other experts as the CO-TRUSTEE shall deem advisable. To rely on the information and advice furnished by such persons. To fix the compensation of such persons, and in the case of legal counsel, who may also be acting as a CO-TRUSTEE hereunder, to make payments on account of legal fees in advance of the settlement of the CO-TRUSTEE's account without applying to or procuring the authority of any court.
4. To the extent permitted by the laws of the State, the CO-TRUSTEE may hold securities in the name of a nominee without indicating the trust character of such holdings, and may hold unregistered securities, or securities in a form that will pass by delivery.
5 To retain and continue for any period deemed appropriate by the CO-TRUSTEE, any asset, whether real or personal, tangible or intangible, included in the Trust Estate.
6. To sell at public or private sale and to exchange or otherwise dispose of any stocks, bonds, securities, personal property, or other asset constituting the Trust Estate at the time, price, and terms as the CO-TRUSTEE deems advisable.
7. To grant options for the sale or exchange of any asset comprising the Trust Estate, at times, prices and terms which the CO-TRUSTEE deems advisable, without applying to or procuring the authority of any court.
8. To sell, exchange, partition, convey and mortgage, and to modify, extend, renew or replace any mortgage which may be a lien on all, or any part, of any interest in real property included in the Trust Estate.
9. To lease any real or personal property, whether or not for a term beyond the period of time fixed by statute for leases by a CO-TRUSTEE, and whether or not, extending beyond the termination of any trust established under this TRUST AGREEMENT, and upon such terms as the CO-TRUSTEE deems advisable, without obtaining the approval of any court.
10. To foreclose mortgages and bid in property under foreclosure and to take title by deed in lieu of foreclosure or otherwise.
11. To extend the time of payment of any bond, note or other obligation or mortgage included in the Trust Estate, or of any installment of principal thereof, or of any interest due thereon.
a. To hold such instrument after maturity, as a past due bond, note or other obligation or mortgage, either with or without renewal or extension.
b. To consent to the modification, alteration and amendment of any terms or conditions of such instrument, including those regarding the rate of interest, and to waive any defaults in the performance of the terms and conditions of such instrument.
12. To compromise, adjust, settle or submit to arbitration upon terms the CO-TRUSTEE deems advisable, in absolute discretion, any claim in favor of or against the Trust Estate.
a. To release with, or without, consideration any claim in favor of the Trust Estate.
13. To participate in any refunding, readjustment of stocks, bonds or other securities or obligations, enforcement of obligations or securities by foreclosure or otherwise, corporate consolidation by merger or otherwise or reorganization which shall affect any stock, bond or other security or obligation included in the Trust Estate.
a. To participate in any plan or proceeding for protection of the interests of the holders of such instruments.
b. To deposit any property under any plan or proceeding with any protective or reorganization committee and to delegate to such a committee the discretionary power with respect thereto.
c. To pay a proportionate part of the expenses of a committee.
d. To pay any assessments levied under such a plan, and to accept and retain any property which may be received pursuant to any such plan.
14. To borrow money for the purpose of raising funds to pay taxes or for any other purpose deemed by the CO-TRUSTEE beneficial to the Trust Estate, and upon such terms as the CO-TRUSTEE may determine.
a. To pledge as security for the repayment of any loan any assets included in the Trust Estate.
15. To make any distribution under any Trust, in cash or in property, or in any combination of cash and property. To make non-pro-rata distributions of cash and property then included in the Trust Estate.
16. To exercise for the benefit of the Trust Estate, and for any property included in the Trust Estate, all rights, powers and privileges of every nature, which might or could be exercised by any person owning similar property absolutely and in his or her own right.
a. To exercise any or all of such rights, powers and privileges, even where such right, power or privilege may not have been specifically mentioned in this TRUST AGREEMENT.
b. To negotiate, draft, enter into, re-negotiate, or otherwise modify any contracts or other written instruments which the CO-TRUSTEE deems advisable, and to include in them the covenants, terms and conditions as the CO-TRUSTEE deems proper.
SECTION 5. CO-TRUSTEE DISCRETIONARY POWERS
A. UNIFIED OR SEPARATE ACCOUNT
a. For the CO-TRUSTEE's convenience the CO-TRUSTEE is authorized to administer as a unified account the assets of any one or more Trusts created under this TRUST AGREEMENT and Donee Property then being held by the CO-TRUSTEE, so long as such action would not result in any adverse tax consequence to the GRANTOR or any income beneficiary.
b. However, the CO-TRUSTEE shall keep a separate record of all transactions.
B. MERGER OF TRUSTS
In the event that any Trusts have been created under this TRUST AGREEMENT and/or under a trust under GRANTOR's last will and testament, or by GRANTOR's spouse, for the same beneficiaries, with substantially similar terms, then the CO-TRUSTEE shall be authorized to merge said trusts.
C. DISTRIBUTION TO A PERSON UNDER A DISABILITY
1. Retention and Distribution of Income and Principal to a Person Under a Disability.
a. Whenever pursuant to the provisions of any trust formed under this TRUST AGREEMENT, any Donee Property is to be distributed, title to that property shall vest in that person under a disability, but the payment or transfer of the property may be deferred until the disability ceases.
b. If the transfer of property is deferred under this provision, that Donee Property shall be held by the CO-TRUSTEE, who shall apply so much of the principal and income as they deem necessary, and in accordance with the Standard For Payment, for the benefit of the person under a disability.
2. Transfer of Donee Property.
a. When the disability ceases, the CO-TRUSTEE shall transfer to the person formerly under a disability the remaining Donee Property, and any accumulations of income or principal (collectively, both such items are referred to as the "Remaining Property").
b. If the person under a disability should die, the CO-TRUSTEE shall deliver the Remaining Property to the legal representatives of the estate of that person.
c. Notwithstanding the foregoing provisions the CO-TRUSTEE may, at any time, deliver all or any part of the Donee Property which shall then remain, together with any accumulations, of income, to a parent, guardian, custodian under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act, committee, conservator of the property, or an individual with whom such person under a disability resides, and the receipt by such person or entity shall constitute a full discharge of the CO-TRUSTEE for such payment or delivery.
d. The powers granted to the CO-TRUSTEE shall be applicable to any Donee Property dealt with in this provision and shall continue until the actual distribution of such Donee Property.
3. Virtual Representation Clause.
In any proceeding involving the Trust Estate created under this Trust, it shall not be necessary to serve process upon, or to make a party to any such proceeding, any person under a disability where another party to the proceeding who is not under a disability has the same interest as the person under a disability.
D. MODIFICATION OF TRUST AGREEMENT BY CO-TRUSTEE
1. Notwithstanding anything in this TRUST AGREEMENT to the contrary, the CO-TRUSTEE shall not have the power to use any of the Trust Estate for the benefit of the GRANTOR's estate, as such term is defined in Treasury Regulation Section 20.2042-1(b).
a. Should any power, right or provision herein grant directly or indirectly such a power, the CO-TRUSTEE is hereby directed and Authorized to amend this TRUST in order to restrict such right to the point where it would no longer violate such regulation.
2. Any CO-TRUSTEE, other than the GRANTOR may modify or amend any trust formed under this TRUST AGREEMENT to facilitate the administration of the Trust Estate or to conform such Trust to laws or regulations affecting trusts;
a. the requirements of qualifying as a Qualified Subchapter S Trust;
b. to meet the requirements of a Qualified Domestic Trust; to properly address the Generation Skipping Transfer Tax issues which may be created by any transfer or Trust contemplated hereunder as the same may be amended from time to time;
c. to amend the Annual Demand power herein to assure its compliance, to the extent feasible, with the annual gift tax exclusion, with any new legal interpretations of the required structure of such trust.
3. No such modification or amendment, however, shall affect the possession or enjoyment of the Trust Estate, nor shall any action under this provision be undertaken in a manner that could cause the inclusion of any portion or all of the Trust Estate in the taxable estate of any person not contemplated hereunder.
4. Such modification shall be effected by an instrument filed with the Trust records.
a. Any CO-TRUSTEE may exercise this power from time to time, in whole or in part, or may release this power in whole or in part.
SECTION 6. THIRD PARTY RELIANCE
A. No bank or trust company, corporation, partnership, association, firm, or other person dealing with the CO-TRUSTEE, or keeping any assets, whether funds, securities or other property of the Trust Estate, shall be required to investigate the authority of the CO-TRUSTEE for entering into any transaction involving assets of the Trust Estate.
B. Nor shall such person be required to see to the application of the proceeds of any transaction with the CO-TRUSTEE, or to inquire into the appropriateness, validity, expediency or propriety thereof, or be under any obligation or liability whatsoever, except to the CO-TRUSTEE;
1. and any such person, bank or trust company, corporation, partnership, association or firm shall be fully protected in making disposition of any assets of the Trust Estate in accordance with the directions of the CO-TRUSTEE.
SECTION 7. FURTHER ASSURANCES
GRANTOR agrees to execute any documents reasonably necessary for the CO-TRUSTEE to implement such CO-TRUSTEE's duties under this TRUST AGREEMENT.
SECTION 8. RULES AGAINST PERPETUITIES
Notwithstanding any provisions of this instrument to the contrary:
A. If any Trust created under this TRUST AGREEMENT shall violate any applicable rule against perpetuities, accumulations or any similar rule or law, the CO-TRUSTEE is hereby directed to terminate such trust on the date limited by such rule or law, and thereupon the property held in any Trust under this TRUST AGREEMENT affected by this provision, shall be distributed to the persons then entitled to share the income from that property in the proportions in which they are then entitled to share such income.
B. No power of appointment granted under this TRUST AGREEMENT shall be so exercised so as to violate any such rule or law, and any attempted exercise of any such power which violates such rule or law shall be void.
SECTION 9. DEFINITIONS.
The following terms when used in this Trust are defined as follows:
A. "Addition" means any cash or other assets transferred to the Trust after the date of the initial execution of this TRUST AGREEMENT, and which is to be held as part of the Trust Estate. The amount of any contribution is its federal gift tax value, as determined by the CO-TRUSTEE at the time of the transfer.
B. "Child" is an issue in the first degree.
C. "Code" means the Internal Revenue Code of 1986, as amended, or any corresponding provision of any subsequent federal tax law. Any reference to any Code Section shall also include a reference to any successor statute of like import, and any regulations issued thereunder.
D. "Donee Property" is any net income of any Trust created under this TRUST AGREEMENT, and/or all, or any part, of the Trust Estate of any Trust created under this TRUST AGREEMENT, which is, or could become, distributable to a person under a disability.
E. "Income", "Principal" are defined as follows.
1. All cash dividends, other than those described hereafter, shall be income.
2. All corporate distributions in shares of stock (whether denominated as dividends, stock splits or otherwise, and cash proceeds representing fractions thereof) of any class of any corporation (whether the corporation declaring or authorizing such distributions or otherwise) shall be principal.
3. Dividends on investment company shares attributed to capital gains shall be principal whether declared payable at the option of the shareholders in cash or in shares or otherwise.
4. Liquidating dividends, rights to subscribe to stock and the proceeds of the sale thereof, and the proceeds of unproductive or under-productive property shall be principal.
5. There shall be no apportionment of the proceeds of the sale of any asset of the Trust Estate (whether real or personal, tangible or intangible) between principal and income because such asset may be or may have been wholly or partially unproductive of income during any period of time.
6. Notwithstanding anything in this definition to the contrary, all income attributable to S corporation stock shall be distributed as required for the trust to retain its status as a qualified S corporation trust.
F. "in trust" is to manage, invest and reinvest the principal of a trust and to collect the income thereof.
G. "Issue" is a descendant in any degree, whether natural or adopted.
H. "Notice" is a writing containing any information required by this Trust to be included therein, with a copy sent to every CO-TRUSTEE then serving as a CO-TRUSTEE under any Trust and to the beneficiaries intended to be bound thereby.
1. Where this Trust is revocable, the GRANTOR shall also be sent a copy of such Notice.
2. Notice shall be sent via certified mail return receipt requested, registered mail, hand delivery, or by a recognized overnight courier.
3. Notice shall be effective Three (3) business days after dispatch by mail, upon receipt when sent by hand delivery, and on the next business day when sent by overnight courier.
I. A "person under a disability" is a person who, for such period as the CO-TRUSTEE shall determine, is deemed by the CO-TRUSTEE to be physically or mentally incapable of managing such person's affairs. A judicial declaration is not required to be made with respect to such disability.
SECTION 10. "PER STIRPES"
is a disposition of property whereby issue take a portion thereof in representation of their deceased parent, with division to be made into such number of equal shares at each succeeding degree of relationship from the common ancestor that there shall be one share for each person of such degree living at the time of such division and one share for the issue collectively then living of each person of such degree who is then deceased; such division to be made although there may not then be any person living within such degree.
1. "CO-TRUSTEE" is the CO-TRUSTEE named in this Trust or appointed by a court or pursuant to the terms of this Trust and any and all successors, and may be masculine, feminine or neuter and singular or plural, as the sense requires.
2. "Trust Estate" is the property which GRANTOR assigns and transfers to the TRUST,
a. the property described in Schedule "A",
b. any Addition,
c. any other property which the GRANTOR, the legal representatives of the GRANTOR's estate pursuant
to the provisions of the GRANTOR's Last Will and testament, or any other persons transfer to the TRUST,
d. as well as the proceeds from the sale or investment of such property.
e. The "Trust Estate" is the remaining principal of any TRUST formed under this TRUST AGREEMENT, as then constituted, and upon the termination of any Trust any accrued and undistributed income.
SECTION 11. CONSTRUCTION.
A. GOVERNING LAW
The validity, construction and effect of the provisions of this Trust shall be governed by the laws of WEST VIRGINIA and wherever the term "state" is referred to in this Trust, it shall be interpreted as WEST VIRGINIA.
B. COUNTERPARTS
This TRUST AGREEMENT may be executed in more than one counterpart, each of which is an original, but all taken together shall be deemed one and the same instrument.
C. CAPTIONS
Captions, provision numbers and headings have been inserted for convenience only and such shall not be construed to affect the interpretation of any provision of this Agreement or to limit or broaden the terms of any provision.
D. BINDING AGREEMENT
This TRUST AGREEMENT shall extend to and be binding upon the executors, administrators, heirs, successors and assigns of the GRANTOR and the CO-TRUSTEE.
E. PARTIAL INVALIDITY
Any provision of this TRUST AGREEMENT prohibited by law shall be ineffective to the extent of such prohibition without invalidating the rest of this TRUST AGREEMENT which shall be interpreted to conform, to the extent permitted by law, with the original intent of the GRANTOR.
IN WITNESS WHEREOF,
the undersigned GRANTOR and CO-TRUSTEE have executed this Trust as of this date.
WITNESS:
___________________ _______________________
, GRANTOR, CO-TRUSTEE
___________________ ______________________
, CO-TRUSTEE
___________________ ______________________
, CO-TRUSTEE
___________________ ______________________
, CO-TRUSTEE
___________________ ______________________
, CO-TRUSTEE
Schedule A
Property Transferred to Trust
1. Cash in the amount of $100.00.
2. DESCRIBE OTHER ASSETS.