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REVOCABLE TRUST AGREEMENT
Establishing The
THOMAS V. SAMPLE LIVING TRUST
THIS TRUST AGREEMENT is made by and between Thomas V. Sample, of _______________, _______________ (hereinafter referred to as "I" or as the "Grantor") and ABC National Bank, with an office in _______________, _______________ (hereinafter referred to as the "Trustee").
W I T N E S S E T H :
WHEREAS, I wish to create a trust of certain property for the benefit of myself and others, such property being described in Schedule A attached hereto and having been delivered this date to the Trustee; and,
WHEREAS, I or another person or persons may hereafter wish to add other property to the trust by gift, devise or bequest under the terms of a Last Will and Testament or by otherwise depositing with the Trustee such other property; and,
WHEREAS, the Trustee agrees to perform such trust in accordance with the terms and conditions and within the powers and limitations hereinafter set forth in this instrument;
NOW, THEREFORE, the Trustee agrees to hold such property and any other property acceptable to the Trustee that I or any other person or persons may add to the Trust by will or otherwise, all of which is hereinafter referred to as the "trust property," and to manage, invest and reinvest the same in trust for the following uses and purposes:
ARTICLE I: DECLARATIONS
A. Name of Trust. This Trust shall be designated as the "Thomas V. Sample Living Trust."
B. Marital Status - Children. I declare that my wife, Linda R. Sample, is deceased and that I am a widower as of the date of this instrument. I further declare that I have two (2) children, namely: Robert A. Sample of _____________, _____________, and Karen C. Sample of _____________, _____________.
ARTICLE II: DISPOSITION OF TRUST PROPERTY DURING MY LIFETIME
A. General Provisions. If any property is transferred to the trust during my lifetime, then I shall receive, hold and manage the same; shall invest and reinvest such property, other than life insurance policies; shall collect the income, if any, and the proceeds thereof; and shall distribute to myself or others so much of the net income and principal thereof as I, in my sole discretion, shall decide from time to time, provided I am not incapacitated within the meaning set forth in paragraph B of this Article II. If I become incapacitated while serving as Trustee, then I shall immediately terminate as Trustee. Thereafter, the successor Trustees designated in accordance with the provisions of Article IX of this instrument shall pay to or apply for the benefit of any one or more members of a group consisting of myself, my children, and the descendants of my children so much of the net income and principal of the trust, even to the extent of exhausting principal, as the successor Trustees may consider advisable for their health, maintenance and support. The Trustee shall be exonerated from any liability in connection with the making of such discretionary payments. The Trustee shall consult with me insofar as practicable regarding the purchase, sale, exchange or other disposition of investments constituting a part of the trust property. Any net income not so expended may be accumulated and added to principal from time to time.
B. Definition of "Incapacitated". For purposes of this instrument, the term "incapacitated" shall mean the inability to make informed decisions in the ordinary course of business because of advanced age, illness, or other causes. The decision as to whether I am incapacitated, for purposes of this instrument, shall be made by a majority of my wife and my children who are then of legal age, with the concurring opinion of at least one physician who has examined me during the two-month period immediately preceding the date on which the determination is being made.
ARTICLE III: PAYMENT OF DEBTS, EXPENSES AND TAXES
Following my death, to the extent possible, the Trustee shall pay out of that portion of the trust property not qualifying for the marital or charitable deductions (1) all of my legally enforceable debts, funeral expenses and estate administration expenses, except that any debt or expense secured by a mortgage, pledge or similar encumbrance on trust property need not be paid by the Trustee, but such property may pass subject to such mortgage, pledge or similar encumbrance, and (2) all estate, inheritance, legacy, transfer, succession and other death taxes or duties (together with interest and penalties thereon, if any) that are levied or assessed upon or with respect to any property included as part of my gross estate, whether such property passes under the provisions of this instrument or otherwise. Notwithstanding the above, if a personal representative of my probate estate is appointed within six months after my death, then the Trustee shall pay the preceding items only to the extent my personal representative shall signify in writing to the Trustee that the value of the cash and readily marketable assets of my probate estate, as determined by my personal representative, is insufficient to pay those items. Any of the preceding items payable by the Trustee as a result of such certification may be paid by the Trustee either directly to the appropriate payee or to the personal representative of my probate estate, as the Trustee may deem advisable. The preceding items shall be paid by the Trustee without seeking reimbursement, recovery, or contribution from any person.
ARTICLE IV: DISTRIBUTION OF TRUST PROPERTY UPON MY DEATH
Upon my death, the Trustee shall distribute the trust property as it is then constituted, together with all property distributable to the Trustee as a result of my death, whether under my will or otherwise, as follows:
1. Tangible Personal Property. The Trustee shall distribute all tangible personal property, including my personal effects, jewelry, household furniture and furnishings, garden and lawn furnishings and equipment, books, silver, art objects, hobby equipment and collections, wearing apparel, automobiles, and other personal articles that are owned by the trust at the time of my death or are distributable to the Trustee as a result of my death under my will or otherwise, to my wife, Linda R. Sample, if she survives me, outright and free of trust. If my wife does not survive me, then the Trustee shall distribute such property to my children who survive me, in substantially equal shares, to be divided in such manner as they shall agree or, if they fail to agree upon a division within six (6) months after the date of my death, as the Trustee shall determine. I may leave a memorandum of my wishes regarding the ultimate disposition of some or all of such tangible personal property, and I would hope that my wishes as to the ultimate disposition of such property would be respected. However, such memorandum shall not affect the absolute nature of the distributions made hereunder.
2. Personal Residence. If held by the trust at the time of my death or if distributable to the Trustee as a result of my death under my will or otherwise, then, upon my death, the Trustee shall distribute to my wife, Linda R. Sample, if she survives me, outright and free of trust, all right, title and interest of the trust in and to all residential real estate used by my wife or by me as a permanent or seasonal home at the time of my death, together with all property or liability insurance policies relating to such residential real estate. If my wife does not survive me, then the Trustee shall distribute such property to my children who survive me, outright and free of trust.
3. Remainder of Trust Property.
a. Primary Beneficiary. If my wife, Linda R. Sample, survives me, then Trustee shall distribute the remainder of the trust property, after compliance with the preceding provisions of this Article IV, to my wife, outright and free of trust.
b. Alternate Beneficiaries. If my wife does not survive me, then the Trustee shall distribute the remainder of the trust property, in equal shares to my children who survive me and the surviving descendants of any of my deceased children, per stirpes, outright and free of trust; provided, however, that if a child of mine has not reached the age of thirty (30) years at the time distribution is to be made under this Article IV, then the Trustee shall set apart his or her share as a separate trust for the benefit of such child, to be held, administered and distributed in accordance with the provisions of Article V of this instrument.
c. Contingent Beneficiaries. If neither my wife nor any of my children or their descendants survive me, then the Trustee shall distribute the remainder of the trust property, after compliance with the preceding provisions of this Article IV, as follows:
(i) one-half (1/2) thereof to those persons who would have been entitled to receive my property under the laws of the State of _______________ in effect on the date of my death, and in the proportions determined under those laws, based upon the assumption that I died intestate while domiciled in the State of _______________, and that my wife and all of my descendants had predeceased me; and,
(ii) one-half (1/2) thereof to those persons who would have been entitled to receive my wife's property under the laws of the State of _______________ in effect on the date of my death, and in the proportions determined under those laws, based upon the assumption that my wife died intestate, domiciled in the State of _______________, and that I and all of her descendants had predeceased her.
ARTICLE V: SEPARATE TRUSTS FOR SAMPLE CHILDREN
Each separate trust named for a child of mine, if any, under any other provision of this instrument, shall be held, administered and distributed by the Trustee upon the following uses and purposes:
1. Discretionary Distributions. As to each separate trust held for the benefit of a child of mine who is under the age of thirty (30) years, the Trustee shall pay to or apply for that child's benefit, from that child's separate trust only, as much of the net income and principal thereof, even to the extent of exhausting principal, as the Trustee, in its sole discretion, may deem reasonable or necessary for the health, maintenance, support and education of that child, in each case considering all the circumstances and factors deemed pertinent by the Trustee. Any net income not expended hereunder shall be accumulated and added to principal, as determined by the Trustee from time to time.
2. Mandatory Distributions. When a child of mine reaches the age of twenty-five (25) years, the Trustee shall distribute to that child fifty percent (50%) of the then remaining balance of that child's separate trust, outright and free of trust; and, when a child of mine reaches the age of thirty (30) years, that child's separate trust shall terminate and the Trustee shall distribute to that child one hundred percent (100%) of the then remaining balance of that child's separate trust, outright and free of trust; provided, however, that each child of mine shall have the right to defer any and all distributions and to have the same continued in trust hereunder.
3. Limited Power of Appointment. If a child of mine dies before reaching the age of thirty (30) years, the separate trust held for that child under this Article V shall terminate and the Trustee shall distribute the remaining balance thereof, as it is then constituted, to or for the benefit of any one or more of the descendants of that child, in such proportions and amounts as that child may appoint to receive the same under a Last Will and Testament. In disposing of the remaining balance of a deceased child's separate trust under this Article V, the Trustee shall be protected in relying upon an instrument admitted to probate in any jurisdiction as the Last Will and Testament of that child or in acting upon the assumption that the child died intestate if notice of the existence of a Last Will and Testament is not received by the Trustee within three (3) months after receiving notice of that child's death.
4. Disposition of Separate Trust upon Death of Child. If a child of mine does not effectively exercise the power of appointment provided under the preceding subparagraph as to all or any part of that child's separate trust, then, upon the death of that child, the Trustee shall distribute the remaining balance of that child's separate trust, which is not effectively appointed, to that child's then living descendants, per stirpes, outright and free of trust. If a child of mine dies without then living descendants, then the Trustee shall divide the remaining balance, which is not effectively appointed, into as many equal shares as there are children of mine either then living or deceased and represented by then living descendants. The Trustee shall distribute one such share to each of my then living children who has reached the age of thirty (30) years, outright and free of trust; (ii) distribute one such share to each separate trust held hereunder for the benefit of a child of mine who is under the age of thirty (30) years, the same to be held, administered and distributed in the same manner as provided for in this Article V with respect to the original property held hereunder; and (iii) distribute one such share to the then living descendants of each deceased child of mine, per stirpes, outright and free of trust. If none of my children and none of their descendants are then living, then the Trustee shall distribute the remaining balance, which is not effectively appointed, to such child's estate.
ARTICLE V: DISTRIBUTIONS TO BENEFICIARIES UNDER LEGAL AGE
Whenever, pursuant to the provisions of this instrument, a distributive share of the trust property is payable to a beneficiary under the age of twenty-five (25) years, then title thereto shall pass to such beneficiary but the actual distribution shall be deferred until such beneficiary reaches the age of twenty-five (25) years. In the meantime, such share shall be held by such beneficiary's parent(s) or legal representative, with all the powers granted herein, who shall pay to or apply for the benefit of such beneficiary so much of the net income and principal thereof as the parent(s) or legal representative of such beneficiary shall determine for the health, education, support and maintenance of such beneficiary. When such beneficiary reaches the age of twenty-five (25) years, the parent(s) or legal representative shall deliver to him or her the then remaining principal of such share, together with any accumulations of income thereof. The parent(s) or legal representative may make payment of any income or principal directly to such beneficiary or may apply the same for his or her benefit, and the receipt from the recipient thereof, or evidence of the application of the income or principal for the benefit of such beneficiary, shall be a full and complete discharge and acquittance to the parent(s) or legal representative to the extent of such payment.
ARTICLE VI: GENERAL TRUST PROVISIONS
The following provisions shall apply to each trust created under this instrument, unless the context requires otherwise. When used herein, the term "Trustee" shall be deemed to include a successor Trustee or Trustees.
1. Payment to Minors or Incompetents. The Trustee may make payments in money or in property to or for the benefit of any beneficiary who is a minor or incompetent in any one or more of the following ways: (a) to such minor or incompetent directly if, in the sole discretion of the Trustee, such payment is deemed advisable; (b) to apply such payments directly for the support, maintenance, education, and medical, surgical, hospital, or other institutional care of such minor or incompetent; (c) to the legal or natural guardian of such minor or the conservator of such incompetent; (d) to any other person, whether or not appointed guardian of the person or conservator by any court, who shall, in fact, have the care and custody of the person of such minor or incompetent. The Trustee shall not be under any duty to see to the application of the payments so made and the receipt by such person shall be full acquittance to the Trustee.
2. Discretionary Distributions. Except as otherwise provided herein, the Trustee may take into consideration any other sources of income and/or assets available to a beneficiary in determining whether to make discretionary distributions of net income or principal to that beneficiary; the Trustee shall have no duty to equalize present or future distributions to, or among, beneficiaries; and the good faith decision of the Trustee with respect to any discretionary distributions of net income or principal shall fully protect the Trustee and shall be binding and conclusive upon all persons having an interest in any trust created hereunder. As used throughout this instrument, the education expenses of any beneficiary hereof shall be deemed to include the expenses of tuition, books, other equipment and supplies required in the course of study undertaken, and living expenses (including reasonable travel) incurred in connection with attendance at any educational institution, including private schooling at the elementary and secondary school level, colleges and universities, trade schools, graduate schools and including vocational apprenticeships, internships and residencies. It is my desire that my children and their descendants be educated to the fullest extent possible consistent with their abilities and desires and the resources of this trust.
3. Spendthrift Provision. Except as otherwise provided by law, no power of appointment created hereunder shall be subject to involuntary exercise, and no interest of any beneficiary in the income or principal of any trust created hereunder shall be subject to assignment, alienation, pledge, attachment, or claims of creditors, including claims for alimony or support, until the same is distributed to such beneficiary or beneficiaries.
4. Termination of Small Trusts. If at any time the Trustee, in his sole discretion, shall determine that the continuance of any trust created under this instrument is unwarranted in view of its size, the Trustee may terminate such trust and distribute the balance thereof to the beneficiary or beneficiaries for whom the trust is named.
5. Rule Against Perpetuities. Notwithstanding any other provision of this instrument to the contrary, no trusts created hereunder shall continue beyond twenty-one (21) years after the death of the last to die of those beneficiaries who were living at the time of my death; and, upon the expiration of such period, all trusts shall terminate and the Trustee shall distribute the principal and all accrued or undistributed net income of each such trust to the beneficiary or beneficiaries for whom the trust is named.
ARTICLE VII: TRUSTEE POWERS
A. General Powers. In addition to any other powers conferred by law, the Trustee (including any successor Trustee or Trustees) shall have the following powers with respect to each trust created under this instrument, exercisable in the discretion of the Trustee:
1. Retain Original Property. To retain for such time as the Trustee shall deem advisable any property, real, personal or mixed, that the Trustee may receive, even though the retention of such property by reason of its character, amount, proportion to the total trust estate or otherwise would not be appropriate for the Trustee apart from this provision;
2. Sell, Mortgage or Exchange Property. To sell, exchange, alter, assign, transfer, grant options to buy, sign real estate listing agreements; to convey, pledge, hypothecate; and to mortgage, lease and sublease, even beyond the period of the trust; to partition or otherwise dispose of any property or interest therein; to do any of such acts without a court order, at public or private sale or otherwise, upon such terms and conditions, including credit, and for such consideration as the Trustee shall deem advisable; to transfer and convey the property, or any interest therein, in fee simple absolute or otherwise free of all trusts;
3. Investments. To invest and reinvest, as the Trustee shall deem advisable, in stocks of any class, bonds, debentures, notes, mortgages or other securities as well as in investment trusts, mutual funds and common trust funds, to open accounts in any type of commercial or savings bank, savings and loan association, credit union or similar organization or company, whether within or without the State of __________ or the United States and even though such investment shall not be of the character approved by applicable law but for this provision;
4. Borrow Money. To borrow money and to assume indebtedness for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the Trustee shall deem advisable, including the powers of a corporate trustee to borrow from its own banking department, for the purpose of paying debts, taxes, administration expenses, or other charges against any trust created hereunder, or any part thereof, and to mortgage, pledge or otherwise encumber such portion of any such trust as may be required to secure such loan or loans, and to renew existing loans either as maker or as endorser;
5. Distributions in Cash or in Kind. To make distributions of assets of any trust created hereunder in cash or in kind, or partially in cash and partially in kind, in divided or undivided interests, provided shares may be composed differently and specific property may be allocated to particular distributions; to make such distribution either upon final determination or during one or more preliminary distributions, at the then current values, as the Trustee may find to be most practicable and for the best interest of the beneficiaries; and to make reasonable determinations of said values for the purpose of making distribution if there is more than one beneficiary thereof, which determination shall be binding upon the beneficiaries;
6. Vote Shares of Stock. To vote shares of stock owned by any trust created hereunder at shareholder's meetings in person or by special, limited, or general proxy, with or without power of substitution;
7. Register in Name of Nominee. To cause any of the investments that may be delivered to or acquired by the Trustee to be issued, held or registered in the name of the Trustee, in negotiable form, in the name of a nominee, or in any form in which title will pass by delivery; and any corporation or its transfer agent may presume conclusively that the nominee is the actual owner of the securities submitted for transfer;
8. Pay Expenses. To pay calls, assessments and any other sums chargeable or accruing against or on account of shares of stock, debentures or other corporate securities in the hands of the Trustee, whenever such payment may be legally enforceable against the Trustee or any property of any trust created hereunder, or if the Trustee shall deem such payments expedient and for the best interests of any such trust; to pay for repairs and other expenses incurred in the management, collection, care, administration and protection of any such trust including reasonable compensation to the Trustee and attorney's fees;
9. Litigate, Compromise or Abandon Claims. To compromise, adjust, arbitrate, sue on or defend, or otherwise deal with and settle claims in favor of or against any trust established hereunder as the Trustee may deem advisable, and the decision of the Trustee shall be conclusive between the Trustee and the beneficiaries of any such trust in the absence of fraud, bad faith or gross negligence of the Trustee;
10. Commingle Assets. To acquire, receive, hold and retain the principal of any or all trusts created hereunder undivided until division becomes necessary in order to make a distribution; to hold, manage, invest, reinvest, and account for the several shares or parts of shares by appropriate entries in the books of account maintained by the Trustee, and to allocate to each share or part of a share its proportionate part of all receipts and expenses, provided that this subparagraph shall not defer the vesting in possession of any share or part of a share of the trust;
11. Receive Additional Property. To receive additional property from any source and to administer such additional property as a portion of the appropriate trust hereunder, provided that the Trustee shall not be required to receive such additional property without his consent unless such property is transferred to the Trustee by me or devised or bequeathed to the Trustee in his capacity as Trustee;
12. Employ and Compensate Agents, Etc. To employ and compensate persons deemed by the Trustee as advisable or necessary in the administration of any trust created hereunder including, but not limited to, agents, accountants, brokers, attorneys-in-fact, attorneys-at-law, real estate managers, rental agents, appraisers, and investment counsel and other professional advisers as may be required or desired in managing, protecting and investing the property of any such trust;
13. Insure. To carry such insurance coverage including, but not limited to, public liability, fire, rent, title or casualty insurance for such hazards and in such amounts, either in stock companies or in mutual companies, as the Trustee may deem advisable;
14. Determine Principal and Income. To determine, in accordance with applicable law, all questions with respect to the manner in which expenses and charges are to be borne and receipts are to be credited as between principal and income;
15. Maintain Reserves. To maintain reasonable reserves for depreciation and for amortization and obsolescence;
16. Execute Instruments. To make contracts and execute instruments as may be necessary in the exercise of the powers granted herein; and no party dealing with the Trustee need inquire as to the existence or proper exercise of any power of the Trustee, whether such power is granted directly or incorporated herein; and,
17. Perform Other Acts. To perform all other acts necessary for the proper management, investment, and distribution of the property of any trust created hereunder.
B. Real Property Interests. The Trustee (including any successor Trustee or Trustees) may retain any residential real property or apartment, and the contents thereof, that may be received by the Trustee under my will or otherwise, to purchase, to rent and to maintain residential real estate including an ordinary, cooperative or condominium apartment for occupancy, rent-free, by any of the beneficiaries hereunder, so long as one or more of them may wish to use and occupy it as a home, and to sell it when it is no longer so used and occupied, to pay all rent, taxes, assessments, repairs and other charges for maintaining such real and personal property or apartment, including title, public liability, fire and extended coverage insurance, and to make such purchases or payments out of such beneficiary's portion of the principal or income, in accordance with applicable law, as the Trustee, in his sole discretion, may determine.
C. Exercise of Discretion. The Trustee (including any successor Trustee or Trustees) may exercise every power and discretion in the management of any trust created hereunder as if the Trustee were the absolute owner thereof, and this general power shall not be limited in any way by the specific powers set forth herein; provided, however, that no beneficiary or trustee of any trust created hereunder may participate in any decision regarding payment to any person that he or she is legally obligated to support if such payment discharges such legal obligation of support.
D. Dealing with Estates. The Trustee (including any successor Trustee or Trustees) shall have the power to deal in every way with my estate or any trust established by me, including, but not limited to, the purchase from, the sale to, the exchange of property with my estate, or any trust established by me, or the making of loans thereto, either secured or unsecured and either interest-free or at such rates of interest as the Trustee shall determine.
E. Merging of Similar Trusts. Notwithstanding any provision contained herein to the contrary, the Trustee (including any successor Trustee or Trustees) shall have the power to merge any trust created under this instrument with any other trust or trusts created by me if the terms of any such trust or trusts are substantially similar and held for the primary benefit of the same persons.
ARTICLE VIII: POWERS RELATING TO INSURANCE POLICIES
A. Reservation of Powers by Thomas V. Sample. Notwithstanding any provision contained herein to the contrary, I reserve the right, without the consent or approval of the Trustee (including any successor Trustee or Trustees), to sell, assign, or hypothecate any policy or policies of insurance that are owned by me and held by the Trustee hereunder; to exercise any option or privilege granted by such policy or policies including, but not limited to, the right to change the beneficiary of such policy or policies; to borrow against the cash value of such policy or policies; and to receive all payments, dividends, surrender values, benefits and privileges of any kind that may accrue on account of such policy or policies during my lifetime. The Trustee shall deliver to me (or to the owner if owned by someone other than me) any policy or policies held hereunder upon my written request or the written request of such other owner, as the case may be. The Trustee, if named as the beneficiary of any such policy or policies, shall join in the execution of assignments thereof upon my written request or the written request of such other owner. It is expressly understood and agreed that the Trustee shall have no responsibility for the payment of premiums or other charges due on any policy or policies held hereunder during my lifetime.
B. Settlement of Claims. The Trustee (including any successor Trustee or Trustees) shall use his best efforts to collect any sums due and payable under any insurance policy or policies held hereunder, but shall not be required to institute legal proceedings until indemnified. Upon my death, the Trustee may elect any mode of settlement permitted by the terms and provisions of any insurance policy or policies on my life, wherein such policy or policies designate the Trustee as beneficiary, that the Trustee, in their sole discretion, may believe to be in the best interest of the beneficiaries of the trusts created under this instrument. The Trustee may, without the order of any court, compromise and adjust claims arising out of any policy or policies held hereunder with respect to any amounts payable to the Trustee upon such terms and conditions as the Trustee may deem reasonable, and the decision of the Trustee shall be binding and conclusive upon all interested persons.
ARTICLE IX: CONCERNING THE TRUSTEES
A. Resignation of Trustees. Any person may resign as Trustee of any of the trusts created hereunder at any time by giving at least thirty (30) days prior written notice thereof, delivered personally or by certified mail to me, if living, or, if I am not then living, to the beneficiary or beneficiaries to whom the current income of any such trust may be distributed. If any such beneficiary or beneficiaries are minors, then written notice of such resignation shall be given to the guardians of the estates of such minor beneficiaries.
B. Removal of Trustees. As a matter of convenience to me and the beneficiaries of any of the trusts created hereunder, I reserve the right to remove any Trustee at any time during my lifetime. Such right of removal shall be exercised by giving written notice to such Trustee and to the remaining Trustee or Trustees, if any, and, upon the acceptance of the trust by the remaining or successor Trustee or Trustees and the transfer of the trust property or any portion thereof, as the case may be, the removed Trustee shall cease to be a Trustee of any such trust hereunder.
After my death, any Trustee may be removed by my wife, Linda R. Sample, during her lifetime. After both of our deaths, a majority of the adult beneficiaries then entitled to income from any trust hereunder shall have the right to remove any Trustee of any such trust. If all the beneficiaries then entitled to income from any trust hereunder are minors, then a majority of the guardians of the estates of such minor beneficiaries shall have the right to remove any Trustee of any such trust. Such right of removal shall be exercised by giving written notice to such Trustee and to the remaining Trustee or Trustees, if any, and, upon the acceptance of the trust by the remaining or successor Trustee or Trustees and the transfer of the trust property or any portion thereof, as the case may be, the removed Trustee shall cease to be a Trustee of any such trust hereunder.
C. Appointment of Successor Trustee. In the event of the resignation or removal of ABC National Bank as Trustee hereunder, or in the event of its inability to serve as Trustee hereunder, I reserve the right to appoint a successor Trustee or Trustees. If I am unable to appoint a successor Trustee, either because of my death or incapacity, then DEF National Bank, with an office in _______________, _______________, shall serve as successor Trustee.
D. Periodic Accounting. The Trustee shall render periodically to each individual who is then an income beneficiary under any trust created hereunder, a statement of account showing all receipts, disbursements and distributions of both principal and income from such trust since the last such statement. Such statements shall be rendered by the Trustee within ninety (90) days after receipt by the Trustee of a written request for a periodic accounting, which request shall be made by a majority of the then income beneficiaries of any of the trusts created hereunder. Unless a statement of account is objected to in writing within sixty (60) days from the rendition thereof, such statement shall be deemed approved as rendered. The approval of such statements by such individuals, or by their legal guardians or representatives, shall, as to all matters and transactions stated in the statement of account or shown by it, be final and binding on all individuals, whether or not in being, who are then or who thereafter may become entitled to share in either the income or principal of any trust created hereunder. Nevertheless, the Trustee shall be entitled to obtain a judicial settlement of Trustee accounts at all times.
E. Change of Situs. The Trustee may, at any time and from time to time, as it may deem advisable, in its sole discretion, for the benefit or security of any trust created hereunder, or any portion thereof, remove (or decline to remove) all or any portion of the property or the situs of administration thereof from one jurisdiction to another jurisdiction and elect that the laws of such other jurisdiction shall thereafter govern the same to such extent as may be necessary or desirable, and, thereupon, the courts of such other jurisdiction shall have the power to effectuate the purposes of the trusts created hereunder to such extent. This power of removal shall be a continuing power that may be exercised any number of times including further removal or change of location of property or situs of administration. The determination of Trustee as to any such removal or change of situs shall be binding and conclusive on all individuals interested or claiming to be interested in any trust created hereunder.
F. Liability for Acts of Predecessors. No successor Trustee or Trustees shall be personally liable for any act or failure to act of a predecessor Trustee. With the approval of the individual or individuals indicated in this Article X who may approve the accounts of the Trustee, a successor Trustee may accept the account furnished, if any, and the property delivered by or for a predecessor Trustee without liability for so doing, and such acceptance shall be a full and complete discharge to the predecessor Trustee.
G. Merger or Consolidation of Corporate Trustee. If any corporate Trustee designated to act or at any time acting hereunder is merged with or transfers substantially all of its assets to another corporation, or is in any other manner reorganized or reincorporated, the resulting or transferee corporation shall become Trustee in place of its corporate predecessor. H. Compensation of Trustees. The Trustee of any trusts created under this instrument, including any successor or successors thereto, shall be entitled to reasonable compensation for services rendered hereunder. The compensation of a corporate Trustee, if any, shall be in accordance with its published schedule of fees in effect at the time the services are rendered.
I. Bond. No bond or other security shall be required of any Trustee named herein or of any successor Trustee.
ARTICLE X: SURVIVORSHIP PRESUMPTION
A. If my wife, Linda R. Sample, and I die simultaneously or under such circumstances that make it difficult to determine who survived whom, it shall be deemed for all purposes of this instrument that my wife did not survive me.
B. If any beneficiary under this instrument, other than my wife, fails to survive me by thirty (30) days, it shall be deemed for all purposes of this instrument that such beneficiary did not survive me.
ARTICLE XI: MISCELLANEOUS PROVISIONS
A. Definitions.
1. References in this instrument to a "child" or "children" shall mean descendants in the first degree of the parent designated, and references to a "grandchild" or "grandchildren" shall mean descendants in the second degree of the ancestor designated, and references to "descendants" or "issue" shall mean descendants in the first, second, or any other degree of the ancestor designated. All references to child, children, grandchild, grandchildren, descendants or issue shall include children in gestation and adopted children, provided that such adoption occurred when the individual adopted was a minor in the jurisdiction in which the adoption took place.
2. An adopted child, and such adopted child's descendants, shall be considered in this instrument as descendants of the adopting parent or parents and of anyone who is, by blood or adoption, an ancestor of the adopting parent, or of either of the adopting parents, and shall not be considered descendants of the adopted child's natural parents; except where a child is adopted by a spouse of one of his or her natural parents, such child shall be considered a descendant of such natural parent as well as a descendant of the adopting parent.
3. The term "person" shall mean and include an individual, a corporation, a partnership, an association, a trust, an estate, or any other legal entity or organization.
4. The term "Trustee" shall mean any one of the original or successor Trustees under this instrument, and the term "Trustees" shall mean all of the Trustees collectively if there is more than one Trustee serving at any one time under this instrument.
5. The term "trust property" shall mean all assets and property, whether real, personal or mixed, that are received and held by the Trustee under this instrument and which constitute or form a part of the trust created hereunder from time to time or at any given time.
B. Reservation of Power to Amend or Revoke. I expressly reserve the power during my lifetime (i) to revoke this instrument, in whole or in part, at any time by an instrument in writing delivered to the Trustee, and (ii) to alter, amend, or modify this instrument at any time and from time to time by an instrument in writing without the consent of the Trustee or any beneficiary; provided, however, that in the event of an amendment or modification of this instrument, the duties, powers and liabilities of the Trustee shall not be substantially increased without the written consent of the Trustee. The powers reserved to me under this paragraph are personal to me and shall not be assignable or extend to any other person, including the personal representative of my estate or any beneficiary named herein. Upon my death, this instrument shall become irrevocable.
C. Use of Words and Captions. Wherever the context so requires, words used herein in one gender shall be applicable to all genders, words used in the singular shall include the plural, and words used in the plural shall include the singular. The use of captions are for reference only and are not meant to govern or affect the interpretation of any part of this instrument.
D. Savings Clause. If it is determined that any provision contained in this instrument violates any applicable law, then such determination shall not impair the validity of the remaining provisions of this instrument.
E. Counterparts. This instrument may be executed in one or more copies, and any copy so executed shall be considered an original. Moreover, anyone may rely upon a copy, certified by a notary public, to be a true copy of this instrument (and of the writings, if any, endorsed thereon or attached thereto) to the same effect as if it were an original copy, and anyone may rely upon any statement of fact certified by a Trustee hereunder.
F. Governing Law. This instrument shall be construed and regulated in all respects by the laws of the State of _______________.
G. Effective Date. This Trust shall be effective as of the date this instrument is signed.
IN WITNESS WHEREOF, the parties hereto have signed this Trust Agreement on the ____________ day of ____________________, 2012.
Signed and delivered in
the presence of:
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