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Irrevocable Living Trust
1. Introduction. This Trust Agreement is entered into this [date], by and between [names] (Grantors) and [name], a national banking association (Trustee).
2. Delivery of Trust Assets. Grantors have delivered and transferred ---------- dollars ($----------) cash and the property listed on Schedule A [omitted] attached, as the original assets of this Trust. Trustee acknowledges receipt of the original assets and agrees to hold, administer, and distribute them and all other trust assets later placed in trust by Grantors or other individuals according to the provisions of this Agreement.
3. Establishment of Trusts. All assets in this Trust shall be divided equally into two separate Trusts. One Trust shall be for [name], and the other Trust shall be for [name]. Each Trust shall be known by the name of Grantors' child who is a beneficiary of such Trust.
4. Discretionary Distribution of Income and Principal. Trustee may distribute such amounts of income or principal of each Trust to the beneficiary of the Trust as Trustee, in Trustee's sole discretion, deems advisable for any reason. Grantors particularly desire that the beneficiary be afforded every opportunity to obtain as complete an education as the beneficiary may reasonably desire and be qualified to obtain, including attendance at college, graduate, and professional school.
4. Nondiscretionary Distribution of Income. Trustee shall distribute all the income earned by each Trust to the beneficiary of the Trust in [frequency of payments] payments.
4. A Power to Invade Principal. Trustee may distribute such amounts of the principal of each Trust to the beneficiary of the Trust as Trustee in Trustee's sole discretion deems advisable to defray the beneficiary's medical, dental, and educational expenses.
5. Termination of Trust. When a beneficiary attains the age of twenty-five years, Trustee shall distribute one third of the assets of the Trust to that beneficiary. When a beneficiary attains the age of thirty years, the Trust shall terminate and all properties held in the Trust shall be distributed to the beneficiary.
6. Beneficiary's Death Before Trust Terminates--Power of Appointment. If a beneficiary dies before all the Trust assets are distributed to that beneficiary, the remaining assets of the Trust shall be distributed as the beneficiary may appoint by specific reference to this power of appointment in the beneficiary's will. However, the beneficiary shall have no power to appoint the beneficiary, the beneficiary's estate or creditors, or the creditors of the beneficiary's estate. Any unappointed assets of the beneficiary's trust shall upon the beneficiary's death pass to the beneficiary's issue then living, per stirpes, or, if none, to Grantors' issue then living, per stirpes.
7. Distribution of Principal to Minor. Upon the termination of a Trust, if any share of trust property is to be distributed to a beneficiary who is a minor, the Trust shall not terminate as to that share, but Trustee shall hold that share of trust property in a separate trust for the benefit of the minor until he attains the age of twenty-one years whereupon the Trust shall terminate and all properties shall be distributed to the minor. Trustee, in Trustee's sole discretion, may distribute funds from the income or principal of the Trust for the comfort, support, maintenance, or education of the minor without the intervention of any guardian. If the minor dies before reaching twenty-one years of age, all of the remaining assets of the minor's Trust shall be distributed to the minor's estate.
8. Law Governing Trustee's Conduct. As this Trust Agreement has been executed in [state], all laws governing the Trusts or Trustee shall be determined in accordance with the laws of that State.
9. Trustee Relieved of Bond. Trustee shall act independent of control by any court, and no bond or other security shall be required of the Trustee in any jurisdiction.
10. Institutional Trustee's Fees. Trustee shall be entitled to fair and reasonable compensation for Trustee's services in accordance with Trustee's regular schedule of fees existing at the time the services are performed. Trustee shall also be reimbursed for reasonable costs and expenses incurred in connection with Trustee's duties.
10. Individual Trustee's Fees. Trustee shall be entitled to compensation for Trustee's services in the amounts and at the times fixed by the laws of [state] and as may be approved by a court having competent jurisdiction. Trustee shall also be reimbursed for reasonable costs and expenses incurred in connection with Trustee's duties.
11. Trustee's Powers. Grantors desire that Trustee be permitted to deal as freely with the property in trust as Grantors might in the handling of their own affairs. Trustee shall have all of the powers granted to Trustees under the law of [state] as it now exists or as it may be amended. More specifically, though not intended as a limitation on the broad powers that are being granted, Trustee shall have the right to:
a. Borrow Money. Borrow money from any source;
b. Transfer or Pledge Assets. Sell, lease, trade, mortgage, pledge, or encumber all or any part of the trusts upon such terms as Trustee considers prudent;
c. Unlimited Investment. Invest or reinvest any part of the Trusts as Trustee deems sound, without being limited to the laws prescribed by a statute, custom, or otherwise;
d. Retain Assets. Retain any assets owned by Grantors at the time of their death and bequeathed or devised to the Trusts as long as such retention appears advisable. Trustee can presume that Grantors have confidence in the assets placed in trust, and no sale need be made solely for the purpose of diversifying these investments;
e. Life Insurance. Purchase and pay premiums on insurance upon the life of any person in whom any beneficiary of any trust created by this Instrument may have an insurable interest;
f. Oil and Gas Investments. Buy, exchange, and trade in oil, gas, or other mineral leases and release or surrender in whole or in part;
g. Use Nominees. Register securities in the nominee name of Trustee for convenience;
h. Partition Property. Partition assets when a distribution is made in cash or in kind, or partly in cash and partly in kind. Trustee's judgment concerning the propriety of a partition and the relative values of the property partitioned shall be binding and conclusive on all persons interested in a trust as long as Trustee acts in good faith; and
i. Lend Money. Make loans from a trust to the estate of either Grantor.
12. Presumption Power of Appointment Not Exercised. With regard to any beneficiary who has a power of appointment created by this Trust, if Trustee has no written notice of a will of the beneficiary admitted to probate within a period of [number] months after the beneficiary's death, it may be presumed that the beneficiary died without a will and Trustee shall be protected if Trustee acts in accordance with that presumption. Additionally, Trustee may rely upon a court order in any jurisdiction admitting an instrument to probate as the will of the holder of the power or finding that the holder died without a will. This protection, however, shall not limit or qualify a power of appointment or the right of any person to pursue the funds affected by the exercise of the power.
13. Trustee's Responsibility Regarding Life Insurance of Which Trustee Is Beneficiary. Trustee's only responsibility with regard to life insurance that is not owned by Trustee, but which names Trustee as beneficiary, is to make a reasonable effort to collect all net proceeds under the policy. Trustee is authorized but not required to settle disputes or enter into litigation unless Trustee is first indemnified against all resulting expense. No insurance company will be responsible for the disposition of proceeds paid to Trustee, and payment to and receipt by Trustee shall be a full discharge of the liability of the insurance company under the policy.
14. Books of Account and Annual Statements. Trustee shall keep complete and accurate books of account covering all trust property and all transactions for the Trust. These records shall be available for inspection at all times during business hours by any beneficiary or by anyone designated by the beneficiary. Trustee shall prepare annual statements itemizing the receipts and disbursements of income and principal of each Trust, and listing and valuing each Trust's assets and liabilities, and shall give Grantors copies of the statements while either one or both of them is living. After Grantors are both dead, Trustee shall give copies of the statements to all beneficiaries currently entitled to receive income or principal under the Trust, or to the beneficiaries' parents or guardians if the beneficiaries are minors.
15. Resignation of Institutional Trustee. Trustee may resign by giving [number] days' written notice to both Grantors, to the survivor if only one is living, to the current beneficiaries if neither Grantor is living, or to the beneficiaries' guardians if the beneficiaries are minors. Upon the resignation of Trustee, we appoint [name] to be successor Trustee. Should [name] be dead or fail to qualify as Trustee, Grantors, or the survivor if only one is living, shall appoint successor Trustee. If Grantors are both dead, the current beneficiaries or their guardians, if one or both are minors, shall appoint successor Trustee. Successor Trustee shall have all the duties, rights, and powers given to Trustee by this Agreement.
16. Definition of Child, Children, and Issue. References to "child" and "children" mean a lawful descendant or lawful descendants in the first degree of the parent designated. References to "issue" mean lawful descendants in any degree of the ancestor designated. Such terms include a person in gestation at the applicable time and later born alive, as if such person were living at the applicable time. An adopted child and an adopted child's lawful descendants are deemed lawful descendants of each adopting parent and of anyone who is by blood or adoption an ancestor of such adopting parent.
17. Application of Phrase "Per Stirpes." A provision for property to pass to the issue of a designated person, "per stirpes," means that the property shall pass to that person's children then living in equal shares or all to that person's child if only one is then living, provided that if any child of that person is not then living but has issue then living, the property that would have passed to the deceased child shall pass instead to his issue then living, per stirpes; provided further that in determining the class comprised of such issue, no issue of a living person included in the class shall be included.
18. Trustee's Liability for Act or Omission. Trustee shall not be liable for any act or omission except in the case of gross negligence, bad faith, or fraud. Any distribution for a beneficiary's benefit under this Agreement may be made by payment to any person selected by Trustee for the beneficiary's benefit, without liability on the part of Trustee or requirement that Trustee see to the use of such distribution. The written receipt given Trustee for such distribution shall be a complete exoneration of liability.
IN WITNESS WHEREOF, Grantors and Trustee have executed this Instrument in duplicate originals, on the day and year first above written.
Vice-President and Trust Officer
*** If Required By State Law ***
This Section for Notary:
State of _________
County of ________ [County]
On [Date] before me, [Name of Notary], notary, personally appeared [Name of Person(s) Involved], personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
My commission expires: _____