Fill and Sign the Irrevocable Educational Trust Agreement Virginia Form

THE [name] IRREVOCABLE EDUCATIONAL TRUST AGREEMENT THIS IRREVOCABLE TRUST AGREEMENT made and entered into at this _____ of ___________, 2006, by and between [XXX] of [full address] here inafter called the GRANTOR, and [YYY] of Richmond, Virginia, hereinafter called the TRUSTEE. WITNESSETH: WHEREAS, the Grantor has irrevocably transferred to the Trustee certain assets; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, it is agreed that the Trustee shall hold and administer all assets which may come into this trust in accordance with the terms, provisions and conditions of the within Trust Agreement. The express purpose of this trust is to provide for the post high school education of [BBB]. ARTICLE I GENERAL PROVISIONS RELATING TO GRANTOR AND TRUSTEE 1. Irrevocability : This Trust Agreement shall be irrevocable, and neither the Grantor nor any other person shall have the right or power to alter, amend or revoke any of the terms, conditions or other provisions of this Trust in whole or in part. 2. Right to Add Property : The Grantor or any other person may at any time cause additional real or personal property to be added to the corpus of this Trust by deed, inter vivos transfer, Last Will and Testament or otherwise, and the Trustee shall hold, administer and distribute all such additional property according to the terms and conditions of this agreement. ARTICLE II DISTRIBUTION In the year of the creation of this trust, and in every succeeding calendar year thereafter in which the Grantor shall transfer property to this trust, the Trustee shall pay immediately to or for the benefit of each designated beneficiary 1 of the Grantor who personally or through his guardian shall request (in an instrument in writing deposited with the Trustee no later than thirty (30) days after notice is sent to such designated beneficiary or his representative that property has been transferred to this trust) property of a value equal to (a) the value, as of the date of the transfer, of the property so transferred in the respective year divided by (b) the number of then designated beneficiaries of the Grantor; provided, however, that the total amount that may be so requested by such beneficiary in each calendar year shall not exceed the greater of five thousand dollars ($5,000.00), or the maximum gift tax exclusion. The Trustee shall send notice in writing by mail or deliver notice personally to each designated beneficiary representative within thirty (30) days after it receives such transfer. ARTICLE III POWERS AND DUTIES OF TRUSTEE Without the order, consent, approval or confirmation of any court, person or persons, except as may be specifically required elsewhere herein, the Trustee shall have full power and authority to control and manage the trust estate, to collect, recover, and receive the rents, issues, incomes, and proceeds therefrom and to do all acts and things which the Trustee, in the exercise of Trustee's discretion, may deem needful, desirable, or expedient for the proper and advantageous control thereof to the same extent and with like effect as might be done by an individual in absolute ownership and control of said property including, without prejudice to the generality of such powers, the following powers: 1. To compromise, settle, compound, or adjust, submit to arbitration, or abandon on such terms as Trustee may deem advisable, any claim or demand by or against the trust estate and to agree to any rescission or modification of any contract or agreement; 2. To hold and retain indefinitely any portion or all of any securities (including securities issued by any corporation acting as Trustee hereunder) and other property of whatsoever nature received in kind by the Trustee hereunder, including any business owned by Grantor, without liability or responsibility for any depreciation or loss caused thereby, so long as such retention appears advisable, to exchange any such security or property for other securities or properties and to retain such items received in exchange; 3. To sell, exchange, assign, transfer and convey any security or property, real or personal, held in the trust estate, 2 at public or private sale, at such time and price and upon such terms and conditions (including credit) as the Trustee may determine; 4. To invest and reinvest in such stocks, bonds and other securities and properties, real, personal or mixed, and wherever situated, as the Trustee deems advisable, including stocks and unsecured obligations, undivided interests, interests in investment trusts, common trust funds, mutual funds (including any such trusts or funds managed by a subsidiary, parent or affiliate of any corporate trustee), leases on property which is outside of my domicile, all without diversification as to kind or amount and without being restricted in any way by any statute or court decision (now or hereafter existing) regulating or limiting investments by fiduciary; and, in making investments or reinvestments, to be obligated only to use good faith and to exercise Trustee's honest judgment as to what investments are, from time to time, for the best interests of the trust estate and the beneficiaries thereof, and, unless inconsistent with other provisions of this instrument, to hold any portion of the trust estate in cash and uninvested whenever Trustee deems such holding to be to the ultimate advantage of the trust estate or the beneficiaries; 5. To exercise conversion, subscription, and other similar rights pertinent to any securities at any time held hereunder, to sell such rights, and to use such portion of the principal as may be necessary to exercise such rights; 6. To register or record and carry any property in the name of the Trustee or in the name of a nominee without disclosure of the trust, or to keep and retain any such property, or any part thereof, unregistered and in such condition that it may pass by delivery, without thereby increasing or decreasing the Trustee's liability as fiduciary, but no such registration, recording and/or holding by the Trustee shall relieve the Trustee from Trustee's responsibility for the safe custody and disposition of the trust estate in accordance with the terms and provisions hereof; 7. Unless inconsistent with other provisions of this instrument, to consider and treat as principal the capital gains portion of any dividend, all dividends payable in stock, all dividends in liquidation and conversion, subscription and other similar rights issued on securities, and to consider and treat as income all other dividends received (except those declared as of a "record date" preceding death but payable after, which shall be considered and treated as principal); 3 8. Unless inconsistent with other provisions of this instrument, to allocate, in Trustee's uncontrolled discretion, all or any part of the receipts, including but not limited to rents, capital gains, and dividends in cash, stock, or property, to income or to principal or to both, and, in Trustee's uncontrolled discretion, charge all or any part of the disbursements, losses, premiums, and discounts to income or to principal or to both, all without regard to any rule of practice of law or equity with respect to trusts, and the decision of the Trustee shall be binding and conclusive on all beneficiaries of this trust and any other person or persons; 9. To vote in person or by proxy any stocks or securities held, and to grant such proxies and powers of attorney to such person or persons as the Trustee may deem proper and to consent in writing and join in any voting trust, pooling or depository agreement with respect to any shares of stock forming part of the trust estate; 10. To consent to and participate in any plan for the liquidation, reorganization, consolidation or merger of any corporation, any security of which is held hereunder, including the right to use any of the principal or income from the trust estate for the payment of any charges or assessments imposed upon the trust estate on account of its participation therein, and to receive and continue to hold in trust any property or securities allotted to the trust estate by reason of its participation therein, regardless of any restrictions as to investments contained herein; 11. To lease any real estate for such term, or terms and upon such conditions and rentals and in such manner as the Trustee may deem advisable with or without privilege of purchase and/or renewal (including 99 - year leases renewable forever), and any lease so made shall be valid and binding for the full term thereof even though same shall extend beyond the duration of the trust; to make repairs, replacements and improvements, structural or otherwise, to any such real estate; to insure against fire or any other risks and to charge the expense thereof to principal or income (or apportion same between principal and income) as the Trustee may deem proper; to subdivide real estate, to dedicate same to public use and to grant easements as the Trustee may deem proper; 12. Unless inconsistent with other provisions of this instrument, whenever required or permitted to divide or distribute any trust property hereunder; to make distributions or divisions (including the satisfaction of any pecuniary bequest) in cash or in specific property, real or personal, or an undivided interest therein, or partly in cash and partly in such 4 property, and to do so without regard to the income tax basis of specific property allocated to any beneficiary (including any trust) and without giving any such beneficiary his proportionate share each asset available for distribution or division. The Trustee may exercise all powers herein conferred after the termination of any trust and until the same is fully distributed; 13. To employ accountants, attorneys and such agents and advisors as the Trustee may deem advisable; to pay reasonable compensation for their services and to charge same to (or apportion same between) income and principal as the Trustee may deem proper, and the Trustee shall not be liable for any action taken or omitted to be taken in reliance upon the opinion or advice of counsel, nor for the default or misconduct of any counsel or agents or other representative selected by Trustee in good faith; 14. Unless inconsistent with other provisions of this instrument, to hold two or more trusts or other funds in one or more consolidated funds, in which the separate trusts or funds all have undivided interests, or make physical division of a single trust and hold and administer each share as a separate trust, under the terms and conditions hereof; 15. To pay out of the income and/or principal of the trust estate all taxes, assessments, or governmental charges of any nature whatsoever, with the exception of estate or inheritance taxes and which may be provided for elsewhere herein, which shall become payable in respect to the trust estate or any part thereof or any income or profit derived therefrom and which the Trustee, in Trustee's sole discretion, shall deem it necessary or advisable to pay. Such payments shall be considered as a part of the expense of administration of this trust and shall be a charge against the income and/or principal or against any share or portion thereof as the Trustee, in Trustee's sole discretion, shall deem just and equitable; 16. The Trustee, in Trustee's sole discretion, may contest or prosecute any claim for refund of any tax, assessment, or governmental charge and may pay the costs and expenses of such contest or prosecution, including interest and penalties, if any charged, out of the income and/or principal of the trust estate and without any liability on Trustee's part, notwithstanding it may be held that the Trustee contested any such tax, assessment or governmental charge or prosecuted a claim, for refund thereof without reasonable cause. The Trustee shall not be liable to any beneficiary for Trustee's failure to return any property or income for taxation, or for Trustee's failure or omission to pay any taxes, assessments, or governmental charge of any nature or to make any claim for refund thereof; 5 17. To execute and deliver any and all deeds, mortgages, leases, contracts, agreements, bills of sale, notes, transfers, assignments, powers of attorney, proxies, consents, waivers, and all other documents and instruments relative to the trust estate and assets in Trustee's hands hereunder, irrespective of the period of duration of the trust; 18. To foreclose mortgages and land contracts and to bid for and purchase at judicial sales, any property, mortgage or other interest, using therefor such part of the principal of the trust estate as the Trustee may deem necessary for said purposes and at or after maturity thereof, the Trustee may continue, extend, modify, or renew any mortgages or land contracts which Trustee holds hereunder; 19. To join in partnerships or limited partnerships with others for any legitimate purposes, including, but not limited to: farming, mining, drilling, ranching, entertainment and sports production or promotion, and real estate investment or development; 20. To do any and all things not inconsistent with the foregoing powers and authority which the Trustee may deem necessary, advisable, or expedient in the administration of the trust created herein. ARTICLE IV RULE AGAINST PERPETUITIES Anything in this trust agreement to the contrary notwithstanding, no trust created hereunder shall continue beyond twenty-one (21) years after the death of [XXX]; and upon the expiration of such period all trusts shall terminate and the assets thereof shall be distributed outright to those parties (and in the same proportions, or equally if no proportions are stated) as are then receiving the income therefrom. ARTICLE V PROHIBITION AGAINST ALIENATION The interest of any beneficiary of any trust shall not be anticipated, sold, transferred, alienated, encumbered nor in any other manner assigned by any such beneficiary. Such interest shall not be subject to any legal process, bankruptcy proceedings or the interferences or control of creditors, spouses, or divorced spouses, governments or their agencies, or others, for 6 the debts, obligations or activities of any beneficiary or beneficiary's legal representative. ARTICLE VI RESIGNATION, REMOVAL OR REPLACEMENT OF TRUSTEE A. Any Trustee may resign by giving thirty (30) days written notice to the income beneficiary not under legal disability, or in the case of legal disability, to the legal guardian or conservator, if any, of each income beneficiary under legal disability, and to any Successor Trustee specifically designated by such person or persons. For the purpose of this article the term "income beneficiary" shall mean a person then entitled to income from the Trust estate whether in the discretion of the Trustee or otherwise. B. The title to the trust estate shall vest forthwith in any Successor Trustee acting pursuant to the foregoing provisions hereof; but any resigning or removed Trustee shall execute all instruments and do all acts necessary to vest such title in any Successor Trustee of record without court accounting. A Successor Trustee shall have no duty to examine the accounts, records and acts of the previous Trustee or Trustees and shall in no way or manner be responsible for any act or omission to act on the part of any previous Trustee. C. Each Successor Trustee hereunder shall have, exercise and enjoy all of the rights, privileges and powers, both discretionary and ministerial, as are herein and hereby given and granted unto the original Trustee and shall incur all of the duties and obligations imposed upon the original Trustee. D. In the event that any corporate Trustee shall at any time become a part of any other corporation having trust powers or shall be merged with any other such corporation or corporations into a new corporation having trust powers, then such corporation of which the Trustee may become a part, or which is created by such merger, shall, without further act on the part of any of the parties hereto, be substituted in place and stead of the original Trustee and shall have an the rights and powers given to the original Trustee hereunder. E. Any Successor Trustee appointed under the terms of this Article shall be a bank or trust company having trust powers under the laws of the State of Virginia. ARTICLE VII BENEFICIARIES 7 When the Trustee shall receive notice satisfactory to [him/her] that [BBB] is regularly enrolled as a student in a college, university, or other institution of collegiate grade, the Trustee shall pay to or apply for her benefit the direct costs of tuition, books, fees and expenses attributable to such education including [sorority/fraternity] fees and dues, room and board, and reasonable living expenses up to [amount] per month so long as she is in enrolled in an institution of collegiate grade. If [BBB] shall discontinue her studies, no further payment will be made under this section until [month, day, year], at which time the Trustee shall pay all the principal and accumulated income to [BBB] and the trust shall terminate. In the event [BBB] dies at any time prior to [month, day, year], the Trustee or Successor Trustee shall terminate the trust and pay all accumulated assets to [successor beneficiary] of [city, state]. This trust shall terminate upon (a) trust corpus being fully used up for education of the beneficiary, (b) the death, of the beneficiary, or (c) [month, day, year]. ARTICLE VIII WITHHOLDING OR POSTPONING DISTRIBUTION 1. Trustee's Discretion : Notwithstanding the foregoing provisions of Article Seven, but subject to the limitations of this Article, Trustee shall have the absolute discretion to withhold or postpone any or all non - discretionary distributions of principal to the Beneficiary or any Contingent Beneficiary if Trustee determines, given circumstances at the time, that the distribution should be withheld or postponed for any of the following reasons: a. The beneficiary is physically, mentally, or emotionally impaired in a manner which affects the beneficiary's ability to effectively manage the distribution; b. The beneficiary has a substance abuse problem which might adversely affect the beneficiary's ability to manage the distribution; c. The beneficiary is involved in pending, threatened or potential litigation, bankruptcy, or insolvency proceedings, or has other financial problems or marital difficulties which could result in the diversion or dissipation of the distribution; 8 d. The beneficiary is involved with a quasi-religious organization or living in a community or under a form of government or other conditions which would result in the confiscation or appropriation of the distribution; e. The tax consequences to the beneficiary or the beneficiary's estate of a distribution would be disadvantageous to the beneficiary or the beneficiary's estate; 2. Limitations on Withholding or Postponing Distributions : The provisions in this Article authorizing withholding or postponing distributions shall not apply to property distributable pursuant to a beneficiary's exercise or deemed exercise of a power of withdrawal under Article Two or property distributable pursuant to beneficiary's exercise of a testamentary power of appointment under this Article. 3. Administration of Withheld or Postponed Distributions for Beneficiaries Entitled to Benefits : Trustee shall administer any withheld or postponed distributions for a beneficiary who is entitled to benefits from any local, state or federal government or from any private agency as follows: a. Uses of Net Income or Principal . Trustee may refuse to distribute any or all of the beneficiary's share or Trustee may distribute so much of the net income or principal of his or her share to, or for the use or benefit of, beneficiary as in the sole discretion of Trustee shall be necessary and proper to provide for her extra and supplemental care, comfort, support, maintenance and education, including vocational, rehabilitation, technical training, in addition to and over and above the benefits beneficiary otherwise receives from any local, state or federal government or from any private agency. So long as beneficiary shall be under a legal disability to act on his or her own behalf in respect to his or her own property and affairs, or in the judgment of Trustee is otherwise unable to apply such payments as may be made from this Trust from time to time to his or her own best interests, Trustee shall consult with the guardian or other person having physical custody of beneficiary as to any payments to be made under this Trust Agreement. Any income not so distributed shall be accumulated and added to principal. b. Statement of Grantor's Intent . In exercising the discretionary powers conferred on Trustee in this Trust Agreement, Trustee shall be guided by the following statement of Grantor's purpose and intentions. It is Grantor's expectation that the trust income and principal will not be made available to provide primary support for beneficiary. Therefore, Trustee is directed to investigate other sources of support available to him 9 or her and to take whatever steps necessary to enroll beneficiary for such benefits or assistance. Trustee is authorized to make trust distributions to or on beneficiary's behalf in such a way that his or her life will be enriched and made More enjoyable, including providing recreational and vacation opportunities for him or her. Trustee is authorized to expend the Trust Property to procure more sophisticated medical and/or dental treatment than may otherwise be available to beneficiary and to seek private rehabilitative and educational training. c. Lifetime Care . The Trustee may, in Trustee's discretion, obtain a lifetime care arrangement for beneficiary. At such time as an arrangement for his or her lifetime care shall be made and approved by a court of competent jurisdiction (whether such arrangement be by way of commitment proceedings, private contract or otherwise), and if the total cost of such lifetime care is known or can reasonably be estimated, the Trustee shall set aside an amount which, when added to any other sums available for such purpose from whatever source, is reasonably sufficient in Trustee's judgment to provide for such lifetime care. 4. Conclusive Discretion of Trustee . Grantor desires Trustee to exercise the discretionary powers conferred on Trustee in a manner which will provide flexibility in the administration of the Trust under conditions from time to time existing, and in exercising powers under this Article, the discretion of the Trustee shall be conclusive as to the advisability of any distribution of income or principal, and as to the person to or for whom such distribution is to be made, and the same shall not be subject to judicial review. IN WITNESS WHEREOF, the Grantor has executed this instrument and the Trustee has evidenced its acceptance of the Trust herein expressed by setting their hands and seals this _______ of ___________________, 2004. WITNESS our signatures and seals: _____________________________ Witness XXX Grantor _______________________________ ______________________________ Witness YYY 10 Trustee STATE OF VIRGINIA ) )ss CITY/COUNTY OF ___________________ ) The foregoing instrument was acknowledged before me this ____ day of __________________, 2006, by XXX and YYY. ___________________________ Notary Public My Commission Expires:______________ 11