VIEWS: 1,267 PAGES: 13 CATEGORY: Wills and Trusts POSTED ON: 10/18/2007
This is a legal document that determines how an individual's property is to be managed and distributed during their lifetime and also upon death. This type of trust, also called an "inter-vivos trust,” is created by a settlor, who transfers assets into the trust, which are then distributed to the beneficiaries. This particular trust is revocable and designates the settlor’s adult children as the beneficiaries, but this agreement can easily be customized to provide for different beneficiaries. This document can be used by individuals that want to create a trust to distribute assets for the benefit of their children upon their death.
This is a legal document that determines how an individual's property is to be managed and distributed during their lifetime and also upon death. This type of trust, also called an "inter-vivos trust,” is created by a settlor, who transfers assets into the trust, which are then distributed to the beneficiaries. This particular trust is revocable and designates the settlor’s adult children as the beneficiaries, but this agreement can easily be customized to provide for different beneficiaries. This document can be used by individuals that want to create a trust to distribute assets for the benefit of their children upon their death. REVOCABLE INTER-VIVOS TRUST THIS INTER-VIVOS REVOCABLE TRUST (this “Instrument”) is made this ____ day of _________, 20_____, by __________________ [Comment: insert Settlor’s name] of County of ___________________, State of ___________________, as Settlor, and _____________________ [Comment: insert name of Trustee], as Trustee. RECITALS WHEREAS, Settlor is a individual and Settlor has one or more children who are alive; WHEREAS, Settlor has _____ (__) children, referred to herein in as “child” or “children,” all of them adults, namely: (1) _______________, who resides at ___________________ in the of County of ___________________, State of ___________________; (2) ___________________, who resides at ________________ in the County of ___________________, State of ___________________; and (3) ___________________, who resides at ________________ in the County of ___________________, State of ___________________; WHEREAS, Settlor declares that Settlor has transferred to the Trustee the property described in Schedule “A” attached to this Instrument; WHEREAS, Trustee hereby agrees to hold such property and any other property included in the trust estate, in trust, on the terms and conditions set forth herein; WHEREAS, Settlor wishes, by this Instrument, to create an inter-vivos revocable trust in accordance with the laws of the State of ___________________ whereby Settlor’s separate property will be held in trust and managed for Settlor’s benefit during Settlor’s lifetime and distributed to the beneficiaries named herein upon Settlor’s death; I. TRUST ESTATE 1. TRUST ESTATE All property subject to this Instrument is referred to as the “trust estate” and shall be held, administered, and distributed according to terms and conditions set forth in this Instrument. 2. TRUST PROPERTY A. The trust estate consists of the property (plus the undistributed income and proceeds generated by such property) listed in Schedule “A” and hereafter transferred to the trust by the Settlor or Settlor’s will as insurance proceeds or pension benefits, or from any other person or source. B. The Settlor’s property, listed in Schedule “A” or subsequently added to the trust estate, is the separate estate of Settlor. II. INCOME AND PRINCIPAL DISTRIBUTIONS DURING LIFE During the Settlor’s lifetime, the Trustee shall pay to or apply for the benefit of Settlor the net income of Settlor’s separate property in _________________ [quarter-annual or more frequent installments]. The Trustee shall pay to or apply for the benefit of said Settlor as much of the principal as the Settlor directs or as is necessary in the Trustee’s discretion for the proper health, education, support, maintenance, comfort and welfare of the Settlor in accordance with Settlor’s accustomed manner of living at the date of this instrument. III. SHOULD SETTLOR BECOME INCAPACITATED 1. PAYMENTS FOR BENEFIT OF INCAPACITATED SETTLOR A. If at any time, Settlor’s physician or, if such Settlor has no attending physician, two licensed physicians, not related by blood or marriage to Settlor or any beneficiary of this trust, certifies in writing that Settlor has become incapacitated, whether or not a court of competent jurisdiction has declared Settlor incompetent or mentally ill or has appointed a conservator, the Trustee shall take the steps outlined in this Article. B. Trustee shall apply for the benefit of Settlor, amounts of net income and principal necessary in the Trustee’s discretion for the proper health, support, maintenance, comfort and welfare of Settlor according to Settlor’s habituated manner of living during Settlor’s lifetime. C. The Trustee shall make such payments until Settlor is again able to manage Settlor’s own affairs, or until Settlor’s death, as determined by Settlor’s physician, or if Settlor has not attending physician, by two licensed physicians not related by blood or marriage to the Settlor or to any beneficiary of this trust. D. In making distributions of principal, the Trustee shall take into consideration any income or other resource of Settlor outside the trust estate known to the Trustee. E. The words ‘‘incapacity’’ or ‘‘incapacitated’’ shall include any condition that renders a person unable to conduct his or her regular affairs and that is likely to extend for a period longer than ninety (90) days. The certification of incapacity shall be filed with and accepted by the Trustee or for an incapacitated Trustee, filed with and accepted by the successor Trustee. 2. UNDISTRIBUTED INCOME Any net income generated by the trust estate which may not have been distributed to the Settlor shall be accumulated and added to the principal of the trust estate. 3. DURABLE POWER OF ATTORNEY If Settlor has named an attorney in fact in a Durable Power of Attorney to act on behalf of Settlor, the Trustee shall follow the directions of such attorney. IV. AMENDMENT AND REVOCATION OF THIS INSTRUMENT © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 1. SETTLOR MAY AMEND OR REVOKE THIS INSTRUMENT Settler may amend or revoke this Instrument as to all or any part of the property held therein by an executed writing, dated and delivered to the Trustee. Upon delivery of the revocation, the property shall revert to the Settler as Settler's separate property. At and after either Settler's death the trust shall be irrevocable. 2. DISABILITY OF SETTLOR All of the Settler's powers to revoke and amend this instrument are personal to Settler; however, in the event of disability, the powers may be exercised (during the Settler's lifetime) on Settler's behalf by an attorney in fact under a durable power of attorney signed by Settler with powers given in such durable power of attorney; or by a conservator with court approval. V. DISPOSITION OF TANGIBLE PERSONAL PROPERTY AT SETTLOR’S DEATH 1. Upon the death of Settlor, the Trustee shall divide the tangible personal property of Settlor or any such property held by the trust estate, including household goods, furniture, furnishings, automobiles, jewelry, paintings, and books, together with any insurance thereon, and distribute such property to or for Settlor’s children then living, in equal shares as they may agree, or if they do not agree, as the Trustee determines. If no child of Settlor is then living, these gifts shall pass with the remainder of the trust estate. 2. Settlor requests, but does not direct, that the recipient distribute such items in accordance with a memorandum (if any) left by Settlor at Settlor’s death. VI. DISTRIBUTION OF TRUST ESTATE AT SETTLOR’S DEATH 1. DISTRIBUTION A. Upon the death of Settlor, the Trustee shall divide the residue of the trust estate into as many equal shares as there are living children of Settlor and deceased children of Settlor who have descendants still living. B. The Trustee shall allocate one (1) such equal share to each living child and one (1) such equal share to each group composed of the living descendants of any deceased child. C. Each share allocated to a living child shall be distributed outright. D. Each share allocated to a group composed of the then living descendants of a deceased child shall be distributed by right of representation. E. In the event, however, that no child of Settlor survives Settlor, the Trustee shall allocate and distribute the trust estate by right of representation as of the first generation of descendants surviving the Settlor; for the avoidance of doubt, (a) the trust estate shall be © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who have living issue, and (b) each living member of the nearest generation of living issue shall receive one share and each group composed of a deceased member of that generation’s issue shall receive one share. 2. NOTICE TO BENEFICIARIES A. Upon the death of Settlor, the Trustee shall, and any other person or entity may, give notice to beneficiaries of their interest in the trust (which may be subject to a survivorship period). B. No one giving notice under this provision shall be liable to the trust, trustee, or to any beneficiary, and the trust shall hold harmless and indemnify any person or entity so giving notice. VII. PAYMENT OF TAXES, DEBTS AND EXPENSES 1. Upon death of a Settlor, the Trustee shall follow the directions of the personal representative Settlor’s probate estate, as the case may be, regarding the payment of any death taxes, debts, and other valid claims and expenses, which are enforceable against Settlor’s estate. 2. If there are no such directions from a personal representative, the Trustee, in the Trustee’s discretion, has the authority to pay the Settlor’s debts outstanding at the time of his or her death which are not barred by the statute of limitations, statute of frauds, or any other provision of law. Such debts may include valid death taxes and other governmental charges imposed under the laws of the United States or any state or country by reason of such death; the last illness and funeral expenses of the Settlor; attorneys’ fees; and other costs incurred in administering the deceased Settlor’s estate. 3. The Trustee is authorized to accomplish the foregoing in the exercise of its discretion by direct payment, loans to the executor of a Settlor’s estate and purchase of assets from a Settlor’s estate or any other reasonable method. Any long term debt shall ordinarily be paid in accordance with its terms unless the Trustee determines otherwise. VIII. DESIGNATION OF TRUSTEE 1. TRUSTEE A. ___________________ [Comment: insert the name of Settlor] shall serve as initial Trustee. B. The Settlor shall have the power to appoint a Co-Trustee or a successor Trustee by an instrument signed, dated and delivered to the Trustee, and by the same method may revoke such appointments and make new ones. The appointment of a Co-Trustee shall become effective on the written acceptance of the trust by the newly appointed Trustee and the © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 delivery of the acceptance to Settlor. The appointment of a successor Trustee must be effective upon the date the last Trustee fails to qualify or ceases to act. C. If Settlor has not exercised Settlors’ power to select other successor Trustees during Settlors’ lifetime, the following shall serve as successor Trustees, in order of preference as listed: 1. ______________________ 2. ______________________ 2. INCAPACITY OF A TRUSTEE A. If the Trustee is not capable of administering the trust because of incapacity, during any period of incapacity the successor Trustee named herein shall act as Trustee, having all rights and powers granted to the Trustee by this instrument. B. Incapacity shall be conclusively established if either the Trustee's regularly attending physician or two doctors, authorized to practice medicine in the State of ___________________ (or in any State or country in which the Trustee is then residing) issue written certification to that effect. C. In the absence of certification, a Co-Trustee or successor Trustee or beneficiary(ies) hereunder may petition the court having jurisdiction over this trust to remove a Trustee and, if there is no other acting Trustee, replace him or her with the successor Trustee. Neither a Trustee nor beneficiary who so petitions the court shall incur liability to any beneficiary of the trust or to the substituted Trustee as a result of this petition, provided the petition is filed in good faith and in the reasonable belief that the substituted Trustee is incapacitated or otherwise cannot act. 3. RESIGNATION A. Any Trustee may resign at any time by giving written notice of resignation to the Settlor, and/or the other Trustee(s) then acting, if any, and if there are none, then to all the then current income beneficiaries. Any such resignation shall become effective immediately upon such notice or at such date as the Trustee and the Settlor, or the said beneficiaries may agree, but no later than thirty (30) days after such written notice. B. All trusts under this Agreement need not have the same Trustee or Co.-Trustee, and a Trustee may resign from one or more Trusteeships without resigning from all. 4. BOND No bond shall be required of any person named in this instrument as a Trustee, for the faithful performance of his or her duties as Trustee, but a subsequent named Trustee or successor Trustee may be required to be bonded, in accordance with the terms of appointment. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 5. REIMBURSEMENT AND COMPENSATION A. An individual Trustee may receive reasonable compensation. A corporate Trustee's compensation shall be according to its schedule of fees for the administration of living trusts in effect from time to time. Any Trustee shall be reimbursed for expenses on behalf of the trust estate and shall receive reasonable compensation for extraordinary services rendered to the trust estate. B. A Trustee shall be entitled to reimburse himself or herself for any personal costs incurred in the administration of this trust and for any expenses of the trust that he/she has paid. 6. TRUSTEE ACCOUNTING A. During the lifetime of the Settlor, as long as Settlor has capacity, the Trustee shall account to Settlor, and the written approval of the Settlor shall be final and conclusive in respect to transactions disclosed in the account as to all beneficiaries of the trust, including unborn and contingent beneficiaries. B. If anyone other than Settlor is serving as Trustee, and so long as he/she is not serving as a Co-Trustee with Settlor, that Trustee shall provide an annual accounting which reflects assets, obligations, income, distributions, and expenditures, to Settlor if Settlor has capacity or, in the event of Settlor's incapacity or demise, to the beneficiaries of the residue of the remainder of the trust estate. C. The records of the Trustee shall be open at all reasonable time to inspection by Settlor, and in the event of Settlor's incapacity or demise, to Settlor's children or other beneficiaries named herein. IX. TRUSTEE’S POWERS 1. SPECIFIC POWERS The Trustees shall have the power to mortgage, lease or sell the whole or any part of my estate or any trust at either public or private sale, with or without notice; to determine what is principal or income of my estate or any trust and to apportion and allot receipts and expenses between these accounts; the power to invest and reinvest principal and income of my estate or any trust; and the power, upon any division or partial or final distribution of my estate or any trust, to partition, allot or distribute my estate or such trust in undivided interests or in kind, or partly in money and partly in kind, at equitable valuations determined by the Trustees in a pro rata or non-pro rata manner, so long as assets allocated to beneficiaries have equivalent or proportionate fair market value; and to hold, manage or operate any property or business as they shall deem it advisable. 2. GENERAL POWERS The enumeration of certain powers in this Instrument shall not limit the general powers of the Executors and Trustees, who shall have all the rights, powers and privileges which an absolute owner of the same property would have, subject to their fiduciary obligations. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 X. GENERAL PROVISIONS 1. ADDITIONS TO TRUST Settlor may add to the trust estate by Will, deed or otherwise. Subject to the approval of the Trustee in writing, other persons or entities may add to the trust. Trustee shall allocate the contributed property ratably among the then existing trust shares on the basis of the fair market value of the trust shares at the time of the contribution, unless otherwise specifically directed by such other persons or entities. 2. NOTICE TO TRUSTEE OF BIRTHS, DEATHS AND OTHER EVENTS AFFECTING INTERESTS Unless the Trustee has received actual notice of the occurrence of an event affecting the interests of the beneficiaries of this trust, the Trustee shall not be liable to any beneficiary for distribution made as if the event had not occurred; provided, however, that this clause shall not exculpate the Trustee from liability arising from nonpayment of death or generation-skipping taxes that may be payable by the trust. 3. PERPETUITIES SAVINGS CLAUSE A. Unless terminated earlier in accordance with other provisions herein, all trusts created pursuant to this instrument will terminate twenty-one (21) years after the death of the last survivor of Settlor’s beneficiaries living on the date of Settlor’s death. B. The principal and undistributed income of a terminated trust shall be distributed to the income beneficiaries of that trust in the same proportion that the beneficiaries are entitled to receive income. C. If at the time of termination the rights to income are not fixed by the terms of the trust, distribution under this clause shall be made, by right of representation, to the persons who are then entitled or authorized, in the Trustee’s discretion, to receive trust payments. 4. CHOICE OF LAW A. The validity of this trust and the construction of its beneficial provisions shall be governed by the laws of the State of ___________________ in force from time to time. This paragraph shall apply regardless of any change of residence of a Trustee or any beneficiary, or the appointment or substitution of a Trustee residing or doing business in another state. B. Notwithstanding the foregoing, the validity and construction of this trust in relation to any real property located in a jurisdiction outside the State of ___________________ shall be determined under the laws of such jurisdiction. C. If the sites or place of administration of the trust is changed to another state, the law of that state shall govern the administration of the trust. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 8 5. DEFINITIONS A. The term “education” shall include vocational school, college, university, postgraduate study such as masters or doctorate degrees, remedial or special needs programs at an institution or with instructors of the beneficiary’s or his/her legal guardian’s choice, study in music or any of the arts with an appropriate instructor or school. In determining payments to be made to the beneficiary or on his or her behalf for education, the Trustee shall consider the beneficiary’s reasonable living, room and board, and traveling expenses. B. The term ‘‘issue’’ refers to lineal descendants of all degrees, and the terms ‘‘child’’ ‘‘children,’’ ‘‘issue,’’ and ‘‘descendants’’ and other class terminology include claimants whose membership in the class is based on birth out of wedlock or adoption, provided the person so born or adopted lived for a significant time during minority as a member of the household of the relevant natural or adoptive parent or the household of that parent’s parent, brother, sister, or surviving spouse. A stepchild of any generation or a child of any generation subsequently adopted out of the family shall not be included as a descendant, issue or child unless specifically named and identified herein as such and as a beneficiary. [Comment: At user’s discretion, user may replace the preceding sentence with (i) “A stepchild of any generation is not included as a descendant, issue or child unless specifically named and identified herein as such and as a beneficiary. A child of any generation subsequently adopted out of the family is included herein as a descendant, issue or child for purposes of distribution herein” OR (ii) “child of any generation subsequently adopted out of the family is not included herein as a descendant, issue or child unless specifically named and identified herein as such and as a beneficiary. A stepchild of any generation is included as a descendant, issue or child for purposes of distribution herein.” 6. NO CONTEST A. Except as otherwise provided in this trust, Settlor has intentionally, purposefully and with full knowledge omitted to provide for Settlor’s heirs. B. The Trustee is hereby authorized to defend, at the expense of the trust estate, any contest or other attack of any nature on this trust or any of its provisions. 7. CLAIMS OF CREDITORS The Trustee shall not be personally liable to any creditor or to any other person for making distributions from any trust under the terms of this instrument if the Trustee does not have notice of the claim of such creditor. 8. SEVERABILITY CLAUSE If any provision of this trust instrument is unenforceable, the remaining provisions nevertheless shall be carried into effect. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 9 9. SURVIVORSHIP PROVISION Except as otherwise specifically provided in this instrument, any beneficiary not living one hundred twenty (120) days after the death of Settlor shall be deemed to have not survived Settlor. XI. NAME OF TRUST The trusts created in this instrument may be referred to collectively as THE __________ INTER- VIVOS REVOCABLE TRUST. [SIGNATURE PAGE TO FOLLOW] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 10 IN WITNESS WHEREOF, each of Trustee and Settlor has caused this Instrument to be executed on this __________ day of _______________________, 20_____. TRUSTEE Date: ______________ ________________________ ________________________ [Comment: PRINT NAME] I certify that I have read the foregoing Instrument and that it correctly states the terms and conditions under which the trust estate is to be held, managed, and disposed of by the Trustee. I approve this Instrument in all particulars and request that the Trustee execute it. SETTLOR Date: ______________ ________________________ ________________________ [Comment: PRINT NAME] CERTIFICATE OF ACKNOWLEDGEMENT OF NOTARY PUBLIC STATE OF _______________________ [Comment: INSERT APPROPRIATE LANGUAGE FOR YOUR STATE] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 11 SCHEDULE A THE _________ LIVING TRUST 1. That certain real property located at ______________________________, ___________________ with APN # ___________________, and more commonly described as: 2. _________________ dollars ($________________) ACCEPTED BY TRUSTEE Date: _____________________________ Signature: _____________________________ © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 12
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