Irrevocable Inter Vivos Trust

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Irrevocable Inter Vivos Trust Powered By Docstoc
					An Inter Vivos Trust is a trust that is created by a writing which commences while the
trustor is still alive. This trust is sometimes called a ?living trust.? The trust distribution
may be given to the beneficiary while the trustor is still alive, during the trustor’s death,
or during both. This document in its draft form contains numerous of the standard
clauses commonly used in this type of trust; however, additional language may be
added to allow for customization to ensure the specific terms of the parties’ agreement
are addressed. Use this document to avoid the lengthy and expensive probate process,
and to ensure trustor’s wishes are honored.
 [FOR SINGLE INDIVIDUALS WITH ADULT CHILDREN]
                            IRREVOCABLE INTERVIVOS TRUST

THIS INTER-VIVOS IRREVOCABLE TRUST (this “Instrument”) is made this ____
day of _________, _____, by______________ [NAME] of County of
___________________, State of ___________________, as Settlor, and [NAME], 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 has no children who are deceased, [or, Settlor has ___ deceased
children,  named     _________________________,      _______________________,
and________________;
;

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 irrevocable 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;




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                                                  TERMS

                                              ARTICLE I.
                                            TRUST ESTATE

A. 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.

B. TRUST PROPERTY

1.   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.

2.   The Settlor’s property, listed in Schedule “A” or subsequently added to the trust
     estate, is the separate estate of Settlor.

                               ARTICLE 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.


                                 ARTICLE III.
                    SHOULD SETTLOR BECOME INCAPACITATED

A. PAYMENTS FOR BENEFIT OF INCAPACITATED SETTLOR

1.   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.

2.   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,



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     comfort and welfare of Settlor according to Settlor’s habituated manner of living
     during Settlor’s lifetime.

3.   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 no attending physician, by two licensed physicians not related by blood
     or marriage to the Settlor or to any beneficiary of this trust.

4.   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.

5.   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.

B. 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.


C. 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.

                             ARTICLE IV.
             AMENDMENT AND REVOCATION OF THIS INSTRUMENT

A.       SETTLOR MAY AMEND OR REVOKE ONLY WITH EXPRESS
         CONSENT OF BENEFICIARY

Settlor may not amend or revoke this Instrument as to all or any part of the property held
therein unless expressly consented to by an executed writing, signed by both parties,
dated and delivered to the Trustee. Upon delivery of the revocation, the property shall
revert to the Settlor as Settlor's separate property. At and after either Settlor's death the
trust shall be irrevocable.


                            ARTICLE V.
     DISPOSITION OF TANGIBLE PERSONAL PROPERTY AT SETTLOR’S
                              DEATH

A. Upon the death of Settlor, the Trustee shall divide the tangible personal property of



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     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.

B. 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.

                              ARTICLE VI.
            DISTRIBUTION OF TRUST ESTATE AT SETTLOR’S DEATH


A.       DISTRIBUTION

1.   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.

2.   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.

3.   Each share allocated to a living child shall be distributed outright.

4.   Each share allocated to a group composed of the then living descendants of a
     deceased child shall be distributed by right of representation.

5.   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 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 living, 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.

B.       NOTICE TO BENEFICIARIES

1.   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).




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2.   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.

                                  ARTICLE VII.
                      PAYMENT OF TAXES, DEBTS AND EXPENSES

A. Upon death of 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.

B. 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.

C. 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.

                                       ARTICLE VIII.
                                  DESIGNATION OF TRUSTEE

A. TRUSTEE


1.   ______________________[NAME OF SETTLOR] shall serve as initial Trustee.

2.   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 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.

3.   If Settlor has not exercised Settlor’s power to select other successor Trustees during
     Settlor’s lifetime, the following shall serve as successor Trustees, in order of
     preference as listed:




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                  1. ______________________

                  2. ______________________

B. INCAPACITY OF A TRUSTEE


1.   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.

2.   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.

3.   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.

C. RESIGNATION

1.   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.

2.   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.

D. 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.

E. REIMBURSEMENT AND COMPENSATION




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1.   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.

2.   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.

F. TRUSTEE ACCOUNTING

1.   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.

2.   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.

3.   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.

                                           ARTICLE IX.
                                        TRUSTEE’S POWERS

A. SPECIFIC POWERS

The Trustee 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 Trustee 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.

B. GENERAL POWERS




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The enumeration of certain powers in this Instrument shall not limit the general powers of
the executors and Trustee, who shall have all the rights, powers and privileges which an
absolute owner of the same property would have, subject to their fiduciary obligations.

                                          ARTICLE X.
                                      GENERAL PROVISIONS

A. 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.

B. 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.

C. PERPETUITIES SAVINGS CLAUSE

1.     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.

2.     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.

3.     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.

D. CHOICE OF LAW

1.   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




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     or any beneficiary, or the appointment or substitution of a Trustee residing or doing
     business in another state.

2.   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.

3.   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.

E. DEFINITIONS

1.   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.

2.    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. [OPTION
     1 -- 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.]
     [OPTION 2 -- 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.] [OPTION 3 A 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.]


F. NO CONTEST

1.   Except as otherwise provided in this Trust, Settlor has intentionally, purposefully
     and with full knowledge omitted to provide for Settlor’s heirs.




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2.   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.

G. 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.

H. SEVERABILITY CLAUSE

If any provision of this trust instrument is unenforceable, the remaining provisions
nevertheless shall be carried into effect.

I. 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.

                                            ARTICLE 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]




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IN WITNESS WHEREOF, each of Trustee and Settlor has caused this Instrument to be
executed on this __________ day of _______________________, 20_____.


TRUSTEE

Date: ______________


[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: ______________


[PRINT NAME]




        CERTIFICATE OF ACKNOWLEDGEMENT OF NOTARY PUBLIC
                   STATE OF _______________________


                [INSERT APPROPRIATE LANGUAGE FOR YOUR STATE]




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                                              SCHEDULE A


                                 THE _________ LIVING TRUST


1.   That certain real property located at ______________________________,
     ___________________ with APN # ___________________, and more commonly
     described as:

2.   Five dollars ($5.00)


ACCEPTED BY TRUSTEE

Date:             _____________________________

Signature:        _____________________________




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DOCUMENT INFO
Description: An Inter Vivos Trust is a trust that is created by a writing which commences while the trustor is still alive. This trust is sometimes called a ?living trust.? The trust distribution may be given to the beneficiary while the trustor is still alive, during the trustor’s death, or during both. This document in its draft form contains numerous of the standard clauses commonly used in this type of trust; however, additional language may be added to allow for customization to ensure the specific terms of the parties’ agreement are addressed. Use this document to avoid the lengthy and expensive probate process, and to ensure trustor’s wishes are honored.
This document is also part of a package Estate Planning for Married with Minor Children 9 Documents Included