Married Person's Will for the State of Texas with Children with a Credit Shelter Trust for
Spouse and a Trust for Children
Last Will and Testament
of
__________________________ (Name of Testator)
I, _________________________ (Name of Testator) , an adult resident citizen of
___________________________________________________________________________
_ (street address, city, county, Texas, zip code) , being of sound and disposing mind and
memory, do hereby make, publish and declare this to be my Last Will and Testament, hereby
revoking any and all other wills and codicils heretofore made by me.
I. Appointments and Identifications
A. Spouse. All references in this Will to my Spouse shall mean
________________ (Name of Spouse) .
B. Children. At the time of signing this Will I have the following children: (list of
Names of Children)
_______________________________________________
_______________________________________________________________
_. Further definition of my Children, issue, and descendants appears in Article
VIII of this Will.
C. Executor. I appoint my Spouse, _____________________ (Name of Spouse) .
D. Successor Executor. If my original Executor ceases or fails to serve, I appoint
_______________________________________________________________
_ (street address, city, Texas, zip code) . Any Executor or Executrix, original or
successor, named in this Article will be referred to in this Will as my Executor.
E. Trustee. I appoint ______________________ (Name of Trustee) , a
corporation organized and existing under the laws of the State of Texas, with its
principal office located at
___________________________________________________
______________ (street address, city, Texas, zip code) , as the Trustee of
any Trust created in this Will. If my original Trustee shall cease or fail to serve, I
appoint ______________________ (Name of Successor Trustee) , of
_______________________________________________________________
_ (street address, city, state, zip code) , as the Successor Trustee of any Trust
created under this Will.
F. Guardian. If my Spouse is unable to serve as guardian of my minor Children at
my death, I appoint ________________________ (Name of Guardian) , of
_______________________________________________________________
_ (street address, city, Texas, zip code) , as Guardian of the person of my
minor Children, but if he fails to qualify or ceases to serve, I appoint
_______________ (Name of Alternate Guardian) , of
____________________________________
____________________________ (street address, city, Texas, zip code) , as
Guardian of the person of my minor Children.
No bond shall be required of any Guardian appointed in this Will.
G. In this Will, any reference to a party includes that party's heirs, executors,
administrators, successors and assigns, singular includes plural and masculine
includes feminine.
II. Dispositions
A. General. Except as otherwise provided in this Article, I intend to dispose of all of
my property.
B. Personal and Household Effects.
1. Gift to Spouse. If my Spouse survives me, I give to my Spouse all of my
Personal and Household Effects.
2. Gift to Children. If my Spouse fails to survive me:
a. My Executor shall distribute my Personal and Household Effects
among my Children who survive me, in shares of substantially equal
value as determined by my Children; but
b. If my Children fail to make this determination within _______
(number) months after my death or if they are incapable of making a
division among themselves because of age or for other reasons, then my
Executor shall determine the share of each Child.
Notwithstanding the foregoing sentence, my Executor in its sole and
absolute discretion may include my Personal and Household Effects
directly in my Residue or sell any such property and include the
proceeds in my Residue. Any division and distribution made by my
Executor shall be binding upon all persons, including my Children.
3. No Survivor. If neither my Spouse nor any of my Children survives me,
my Personal and Household Effects shall be added to my Residue.
C. Residence. If my Spouse survives me, I give my Residence,
________________ _____________ (free and clear of or subject to) any
indebtedness secured by such property, to my Spouse. If my Spouse fails to survive
me, my Residence shall be added to my Residue.
D. Residue.
1. Spouse Survives. If my Spouse survives me, my Residue shall be
divided by my Executor into two parts and disposed of as follows:
a. Marital Fund. The first part shall be known as the Marital Fund
and shall be distributed outright to my Spouse. The following assets shall
be allocated to the Marital Fund: property equal in value to the Marital
Deduction Bequest. This may include my interest in the proceeds of any
life insurance or Employee Benefit Plan includible in my gross estate for
Federal estate tax purposes and/or Texas estate tax purposes that are
payable to my estate.
b. Family Fund. The second part shall be known as the Family
Fund and shall be administered as the Family Trust in accordance with
Article III of my Will. The following assets shall be allocated to the
Family Fund:
i. The balance of my Residue.
ii. My interest in the proceeds of any life insurance or
Employee Benefit Plan that are not includible in my gross estate
for Federal estate tax purposes and that are payable to the
Trustee of a trust created pursuant to this Will (without
designating which Trust) and that are not used to satisfy the
Marital Deduction Bequest.
iii. Any other properties that are made payable or transferred
to the Family Trust by me or by others by specific reference in a
Will or other written instrument.
iv. Property allocated to the Marital Fund with respect to
which my Spouse or my Spouse's personal representative has
made a qualified disclaimer.
2. Spouse Fails to Survive. If my Spouse fails to survive me and if any
Child of mine who survives me is then less than the age of 18 years, my
Residue shall be allocated to the Family Fund and distributed in
accordance with Article III of my Will.
3. Major Disaster. If my Spouse and all of my descendants fail to survive
me, my Executor shall divide my Residue into two equal shares. One
share shall be distributed to my Heirs, and the other share shall be
distributed to my Spouse's Heirs.
III. Operation of Trusts
A. General. My Trustee in accordance with this Article III shall administer the
assets distributable or payable to my Trustee as a result of my death.
B. Administration of the Family Fund. The Family Fund shall be held as a
separate trust known as the Family Trust.
1. Income and Principal. The Trustee shall have the power to accumulate
all or part of the net income of the Family Trust or to distribute any part of the
income or principal to or for my Spouse, my Children, and the descendants of
my children in order to provide for their health, support, maintenance, and
education.
2. Standards for Distribution. It is my desire that, in determining which
Beneficiaries of the Trust shall receive distributions, the Trustee shall give
preference to the needs of the Beneficiaries in the following order: first to my
Spouse, second to my Children and, on a per stirpes basis, the living children of
a deceased Child of mine, and third to my other descendants. It is my intention
that the Beneficiaries be enabled, insofar as possible, to maintain the standard
of living to which the Beneficiaries are accustomed. In determining what
distributions, if any, should be made, the Trustee may (but is not so directed to)
take into consideration all other sources of income or principal available to each
Beneficiary. The Trustee may make unequal distributions among the
Beneficiaries, and no such distributions shall be taken into account upon final
distribution of the Trust properties.
3. Property Disclaimed by Spouse. My Spouse shall be deemed to have
survived me for purposes of the administration of property that, in Article II of
this Will, was reallocated to the Family Fund from the Marital Fund because a
qualified disclaimer was made by my Spouse or my Spouse's personal
representative.
C. Termination of Family Trust.
1. Partial Terminating Distribution. When my Spouse has died and my
youngest then-living Child who survives my Spouse and me has reached the
age of ______ years, the Trustee shall distribute _________________
(designation of fraction) of all of the principal and undistributed income then
remaining in the Family Trust to my then-living descendants, per stirpes.
2. Final Terminating Distribution. When my Spouse has died and my
youngest then-living Child who survives my Spouse and me as reached the age
of ____ years, or all have sooner died, the Trustee shall distribute all of the
principal and undistributed income then remaining in the Family Trust to my
then-living descendants, per stirpes, and the Family Trust shall terminate.
3. Major Disaster. If all of my descendants have died before or at the final
termination of the Family Trust as provided above, then the Family Trust shall
terminate and the principal and undistributed income shall be divided into two
equal shares. One share shall be distributed to my Heirs, and the other share
shall be distributed to my Spouse's Heirs.
D. Contingent Trust for Persons Less Than Age _____.
Notwithstanding the preceding provisions of this Will, this Article shall apply if
any part of my estate or any portion of the principal of any Trust created in this Will
would, upon partial or final termination of my estate, be distributable to a Beneficiary
(other than a Child of mine) who has not reached his or her _____ birthday and no
other Trust is created in this Will for that Beneficiary. If my Executor or Trustee, as the
case may be, in its sole discretion so elects, that part of my estate or portion of the
Trust shall be retained by the Trustee as a separate Trust for the benefit of the
Beneficiary. Until the Beneficiary reaches his or her ________ (ordinal number)
birthday, the Trustee shall have the power to accumulate all or part of the income of
that Trust or to distribute so much of the income and principal of that Trust to or for the
benefit of the Beneficiary as the Trustee, in its sole judgment and discretion, deems
necessary for the health, support, maintenance, and education of the Beneficiary.
When the Beneficiary reaches his or her __________ (ordinal number) birthday, the
Trustee shall distribute all of the then-remaining principal and undistributed income of
the Trust to the Beneficiary. If the Beneficiary dies before reaching his or her
_________ (ordinal number) birthday, the Trustee shall distribute the then-remaining
principal and undistributed income of the Trust to the estate of the Beneficiary.
E. Spendthrift Trusts. All trusts created in this Will shall be Spendthrift Trusts.
F. Undistributed Income Added to Principal. Any income of any Trust not
distributed within the first ______ (number) days following the end of the taxable year
of that Trust shall be added to the principal of the Trust and administered as a part of
such principal.
G. Distribution to Beneficiary for Whom Trust Already Established. If any
terminating distribution of any property previously held in trust under this Will for any
Beneficiary is to be made to another Beneficiary for whom at that time the Trustee
holds property in any trust, then such distribution, in the Trustee's sole and absolute
discretion, may be made to the latter Beneficiary or may be added to and become a
part of the latter Beneficiary's trust.
IV. Powers of Trustee
A. General Powers. The Trustee shall have the following powers:
1. Standard. To exercise all powers granted to trustees by the common law
or any applicable statutes (as they exist at this date or are subsequently
amended), to the extent they increase the powers granted to trustees. If,
however, those powers are in conflict with the provisions of this Will, the terms
of this Will shall prevail.
2. Selection and Retention of Assets. To retain, without liability for loss or
depreciation resulting from such retention, any property or undivided interests in
property received from any source, including residential property, regardless of
any lack of diversification, risk, or non-productivity, for such time as the Trustee
shall deem advisable, and the Trustee shall be under no obligation to dispose of
or convert any such property. Any investments made by the Trustee pursuant to
the terms of this Will need not be diversified, may be of a wasting nature, and
may be made or retained with a view to possible increase in value. The Trustee,
except as otherwise specifically provided in this Will, shall have as wide a
latitude in the selection, retention, or making of investments as an individual
would have in retaining or investing his or her own funds, and shall not be
limited to, nor be bound or governed by, any rules of law, statutes, or
regulations respecting investments by Trustees.
3. Sale or Disposition of Trust Property. To sell, exchange, give options
upon, partition, convey, or otherwise dispose of, with or without covenants
(including covenants of warranty of title), any property that may from time to time
be or become a part of the Trust estate, at public or private sale or otherwise,
for cash or other consideration, or on credit, and upon such terms and
conditions as the Trustee shall think advisable, and to transfer and convey the
same free of all Trusts.
4. Investment of Trust Property. To invest and reinvest the Trust estate
from time to time in any property, real, personal, or mixed, including (without
limiting the generality of the foregoing language) securities of domestic and
foreign corporations and investment trusts, bonds, preferred stocks, common
stocks, mortgage participations, and interests in common trust funds, with
complete discretion as to converting realty into personalty, or personalty into
realty, or otherwise changing the character of the Trust estate, even though
such investment (by reason of its character, amount, proportion to the total Trust
estate, or otherwise) would not be considered appropriate for a fiduciary apart
from this provision, and even though such investment causes a greater
proportion of the total Trust estate to be invested in investments of one type or
of one business or company than would be considered appropriate for a
fiduciary apart from this provision.
5. Loans of Trust Property. To make loans, secured or unsecured, in
such amounts, upon such terms, at such rates of interest, and to such persons,
firms, or corporations as the Trustee shall think advisable.
6. Acquisition of Non-Productive Property. To acquire property returning
no income or slight income, or to retain any such property, as long as the
Trustee shall think fit, without the same being in any way chargeable with
income, or the proceeds of the property in case of sale or other disposition
being in any part deemed income.
7. Improving and Leasing Trust Property. To improve any real estate
comprising a part of the Trust estate; to demolish any buildings in whole or in
part; to erect buildings; to lease real estate or personal property on such terms
and conditions and for such length of time (including 99 years or more) as the
Trustee shall think fit, even though such lease may extend beyond the term of
any Trust; to foreclose, extend, renew, assign, release, or partially release, and
discharge mortgages or other liens, and to accumulate income for the purpose
of doing so (except where the Trustee is required in this Will to distribute
income).
8. Borrowing Money. To borrow money and to execute promissory notes
for the same; to secure such obligations by mortgages or other liens or pledges
of any property of the Trust estate; to make any type of purchase or contract,
including installment contracts or credit arrangements, the effect of which is to
borrow money; to accumulate income for the purpose of repaying any
indebtedness owed by the Trustee in its capacity as Trustee under this Will.
9. Adjustment of Claims and Suits; Prepayment of Existing Mortgage.
To prosecute or defend any suit; to compromise or arbitrate any claim (including
a claim for taxes) and any litigation, either in favor of or against the Trust or the
Trustee in its capacity under this Will; to pay claims upon such evidence as the
Trustee shall think sufficient; and to prepay all or part of any mortgage.
10. Employment of Agents. To employ such brokers, bank custodians,
investment counsel, attorneys, and other agents or servants, and to delegate to
them such duties, rights, and powers of the Trustee for such period as the
Trustee shall think fit; and to pay such persons reasonable compensation out of
the Trust estate, all regardless of whether any such person or entity is a
Beneficiary or Trustee under this Will.
11. Voting Securities; Reorganization. To vote, in person or by proxy, any
stocks or other properties having voting rights; to enter into voting trusts and
voting agreements; to exercise any options, rights, or privileges pertaining to
any property in the Trust estate; to participate in any merger, reorganization, or
consolidation affecting the Trust estate; and, in connection with the same, to
take any action that an individual could take with respect to property owned
outright by such individual, including the payment of expenses or assessments,
the deposit of stock or property with a protective committee, the acceptance or
retention of new securities or property, and the payment of such amounts of
money as may seem advisable in connection with the same.
12. Insurance. To insure any part of the Trust estate against such risks as
the Trustee shall think fit, such insurance to be based on market values or
costs, and the coverage to be full or partial as the Trustee shall think fit; to pay
the premiums and to collect or adjust the losses; to acquire, hold, and pay
premiums on insurance upon the life of any person or persons, and to exercise
any and all rights to ownership of such insurance; and to purchase other types
of insurance or annuities for any Beneficiary. However, all incidents of
ownership with respect to any policy of insurance on the life of any Trustee shall
be vested in and exercisable solely by another Trustee.
13. Mineral Contracts and Sales. To execute and deliver oil, gas, and other
mineral leases containing such unitization or pooling agreements and other
provisions as the Trustee shall think fit; to execute mineral and royalty
conveyances; to purchase leases, royalties, and any type of mineral interest;
and to execute and deliver drilling contracts and other contracts, options, and
other instruments necessary or desirable to participate actively in the oil, gas, or
mining business. All of the foregoing may include such terms, conditions,
agreements, covenants, provisions, or undertakings as the Trustee shall think
fit.
14. Corporations. To incorporate any property in the Trust estate; to convey
any such property to a corporation for all or part of its capital stock or other
securities (whether or not any Trustee is also a security holder, officer, director,
or manager of such corporation in an individual, fiduciary, or other capacity); to
dissolve such corporation or any other corporation, the securities of which
comprise a part of the Trust estate; and to hold or dispose of, as a part of the
Trust estate, any property so received upon such dissolution; all in such
manner, at or for such times, and on such terms as the Trustee shall think fit.
15. Partnerships. To enter into partnerships; to transfer any property in the
Trust estate to one or more partnerships for interests in such partnerships; to
act as a partner in any partnership or with respect to any property, any part of
which may be or become part of the Trust estate originally or later; to so act as
a partner with itself acting in an individual, fiduciary, or other capacity; to
participate in the management of such partnerships; to dissolve any partnership
in which the Trustee acts as a partner; and to hold or dispose of, as part of the
Trust estate, any property received upon any such dissolution; all in such
manner, at or for such times, and on such terms as the Trustee shall think fit.
16. Businesses. To start or to enter into any business enterprise, or to
continue to operate any business interest that becomes part of the Trust estate;
to delegate all or part of the management of such business; to invest other
funds of the Trust estate in the business; to convert such business from one
form ( e.g., proprietorship, partnership, corporation, limited liability company,
etc.) to another; to enlarge, diminish, or change the scope or nature of the
activities of any business; to authorize the participation and contribution by the
business in any form of plan to benefit employees, whether or not the
contributions qualify as being tax deductible; to use the general assets of the
Trust estate for the purposes of the business; to invest additional capital in or
make loans to such business, regardless of the speculative nature or non-
productivity of such investment or loan, and without regard to diversification of
investments; to endorse or guarantee on behalf of the Trust estate any loan or
loans made to the business, and secure the loan or loans by pledge or
mortgage of any property of the Trust estate; to employ such officers,
managers, employees, or agents as the Trustee deems advisable in the
management of the business, including electing or employing directors, officers,
or employees of the Trustee to take part in the management of the business as
directors or officers or otherwise, and to pay such person or persons reasonable
compensation; and to rely upon the reports of certified public accountants as to
the operations and financial condition of the business without independent
investigation; all in such manner, at or for such times, and on such terms as the
Trustee shall think fit.
17. Special Farm Powers. To retain any farm or farm property received
from any source, and to acquire and retain other such property; to engage in
farm operations and the production, harvesting and marketing of farm products,
including livestock breeding and feeding and poultry and dairy farming, by
operating directly with hired labor, by retaining farm managers or management
agencies, by renting on shares or for cash, or in any other manner; to enter into
farm programs; to purchase or rent farm machinery and equipment, livestock,
poultry, seed and feed; to improve farm property and to repair, improve, and
construct farm buildings, fences, and drainage facilities; to borrow money for
any of these purposes; and in general to do all things customary or desirable in
farm operations.
18. Payment of Expenses and Taxes. To incur such expenses or charges
in the management of the Trust estate as the Trustee shall think fit; to render
the Trust estate for taxes if the Trustee shall think it desirable, or to refuse to do
so if the Trustee shall think it undesirable; to pay taxes, charges, and
governmental assessments against the Trust estate; and, in anticipation of such
expenses, charges, taxes, and assessments, to set up such sinking funds or
reserves as the Trustee shall think fit.
19. Reliance on Business Documents. To rely upon the authenticity of
affidavits, certificates, opinions of counsel, letters, notices, telegrams,
cablegrams, and other methods of communication in general use and usually
accepted in business as genuine and as what such documents and
communications purport to be.
20. Acceptance of Additional Property. To accept from any source any
property acceptable to the Trustee to be held as part of any Trust under this
Will. The Trustee also is authorized (but not directed) to accept from the
Executor, at the termination of the administration of any estate of which any
Trust established in this Will may be the Beneficiary, the assets delivered by the
Executor to the Trustee on the basis of the accounting for the assets as
submitted by the Executor, without requiring an audit or other independent
accounting of the acts of such Executor. No Trustee under this Will shall have
any duty, responsibility, obligation, or liability for, or any duty, responsibility,
obligation, or liability for failure to rectify, the acts or omissions of the Executor.
21. Powers Under Changed Conditions. To exercise such powers as may
be necessary or desirable in the management and control of the Trust estate,
whether or not such powers are of like kind or character to those enumerated in
this Will; and in particular to enable the Trustee to act under changed
conditions, the exact nature of which cannot now be foreseen.
B. Additional Powers. The Trustee shall also have the additional powers listed
below in this section. If a corporate Trustee is serving as Trustee, these powers shall
be vested solely in the corporate Trustee.
1. Custody of Trust Estate; Nominees; Disbursement of Funds. To
retain sole custody of the Trust estate; to keep any of the property of the Trust
estate in any place or places in Texas or elsewhere in the United States or
abroad, or with a depository or custodian at such place or places; to hold any of
the securities or other property of the Trust estate for any length of time in the
name of a nominee or nominees without mention of any Trust created in this Will
in any instrument of ownership; to make all disbursements of the Trust funds
without any counter-signature; and to make all reports, including tax returns, to
any agency of the government, local, state, or Federal.
2. Execution of Documents. To execute and deliver agreements,
assignments, bills of sale, contracts, deeds, leases, notes, powers of attorney,
warranties, covenants, guaranties, receipts, releases, discharges, acquittances,
and other papers or documents reasonably necessary or desirable to carry out
the powers granted to a Trustee.
3. Apportionment of Income and Expenses. Where not otherwise clearly
provided by law or otherwise set forth in this Will, to determine with finality, as to
each sum of money or other thing of value held or received by any Trustee,
whether and to what extent the same shall be deemed to be principal or to be
income, and as to each charge or expense paid by the Trustee, including, but
not limited to, power to apportion any receipt or disbursement between principal
and income and to determine what part, if any, of income is available for
distribution according to the terms of this Will, and what part, if any, of the actual
income received upon a wasting investment, or upon any security purchased or
acquired at a premium, shall be returned and added to principal to prevent a
diminution of principal upon exhaustion or maturity of the same; and to set up
such reserves out of principal or income as the Trustee shall think fit.
4. Division into Shares or Separate Trusts. To hold, manage, invest, and
account for the several shares or separate Trusts that may be held in trust,
either as separate funds or as a single fund, as the Trustee shall think fit; if as a
single fund, to make division of the same only upon the books of account, to
allocate to each share or Trust its proportionate part of the principal and income
of the single fund, and to charge against each share or Trust its proportionate
part of the common expenses.
5. Method of Distribution or Division. In dividing the Trust estate into
separate shares or trusts, or in distributing the same, to divide or distribute in
cash, in kind, or partly in cash and partly in kind, using different properties
according to their value or undivided interests in the same properties, as the
Trustee shall think fit; for any purpose, including division or distribution, to value
the Trust estate or any part of it reasonably and in good faith, such valuation to
be conclusive upon all parties.
6. Occupancy of Trust Property. To allow any Beneficiary to use or
occupy Trust property without payment of rent.
7. Termination of Small Trust. Notwithstanding any other provision of this
Will, to terminate any separate Trust established by this Will whenever in the
Trustee's opinion such Trust is so small in value that the administration of the
Trust is no longer economically advisable. In making this determination, the
Trustee is requested to take into consideration the financial and special
advantages to the Beneficiary or Beneficiaries of continuing the Trust estate. In
the event of a termination, the Trustee shall distribute the remaining Trust
assets to my Spouse, if living, otherwise to the then income beneficiary or
beneficiaries, per stirpes. The Trustee's judgment shall be final and binding
upon all interested parties, and distribution of Trust assets in any manner
provided in this Will shall relieve the Trustee of any further responsibility with
respect to such assets. In no event shall a Beneficiary, while serving as a
Trustee under this Will, exercise the discretion granted in this paragraph, such
discretion being exercisable solely by another Trustee.
8. Generation-Skipping Transfer Taxes and Payment. If the Trustee
considers any distribution or termination of any interest under this Will as a
distribution or termination subject to a generation-skipping transfer tax, the
Trustee is authorized:
a. To augment any taxable distribution by an amount that the
Trustee estimates to be sufficient to pay such tax and charge the same
to the particular Trust or share to which the tax relates without
adjustment of the relative interests of the Beneficiaries;
b. In the case of a taxable termination, to pay such tax from the
particular Trust or share to which the tax relates without adjustment of
the relative interests of the Beneficiaries. If such tax is imposed in part by
reason of the Trust property under this Will and in part by reason of other
property, the Trustee shall pay only the portion of such tax that the
Trustee determines in good faith to be attributable to the taxable
termination, taking into consideration deductions, exemptions, credits,
and other factors that the Trustee deems advisable; and
c. Subject to the limitations of the Rule Against Perpetuities, to
postpone final termination of any particular Trust and to withhold all or
any portion of the Trust property until the Trustee is satisfied that the
Trustee and the Trust no longer have any liability to pay any generation-
skipping transfer tax with reference to such Trust or its termination.
9. Tax Elections. The Trustee may make such elections under the tax laws
applicable to any Trust as the Trustee in its sole discretion shall determine. No
compensating adjustments between principal and income, nor with respect to
any Trust, shall be made even though the elections made under the tax laws by
the Executors of my estate and my Spouse's estate, or the Trustee, may affect
(beneficially or adversely) the interests of the Beneficiaries. The action of the
Trustee shall be binding upon all Beneficiaries.
10. Payments to Incapacitated Person. During the minority or physical or
mental incapacity of any person to whom or for whom principal or income from
the Trust estate of any Trust created in this Will may be paid (either during the
term of a trust or upon final distribution of a trust), the Trustee may make such
payment in any one or more of the following ways:
a. To such person directly;
b. To the guardian, committee, conservator, or other similar official
of such person;
c. To a relative of such person to be expended by such relative for
the benefit of such person, including payment to such relative;
d. To a custodian under an applicable Uniform Transfers (or Gifts) to
Minors Act; or
e. By the Trustee expending the same directly for the benefit of
such person.
The Trustee's determination of the minority or incapacity of any such
person shall be final, and the Trustee shall not be responsible for the
application of any payment after the same has been made to any person
in accordance with the provisions of this Article.
11. Assistance to Certain Estates. The Trustee may, in its sole discretion,
use the principal of any Trust properties as set forth in this Article, and any
payment made in the bona fide belief that it is pursuant to this Article shall be
binding upon all Beneficiaries:
a. Investments. To purchase and to retain as investments any
securities or other property, real or personal, belonging to the estate of
my Spouse or me.
b. Loans. To make loans to the Executor of my estate or of my
Spouse's estate on such terms as the Trustee deems advisable.
c. Debts and Administration Expenses. To pay any legally
enforceable debts (excluding debts secured by real estate), funeral
expenses, costs, expenses of the administration of my estate, and
Federal estate and state inheritance taxes, including interest and
penalties, which may become payable because of my death.
12. Use and Receipt of Employee Benefits. If the Trustee is designated as
the Beneficiary to receive payments under an Employee Benefit Plan in which
my Spouse or I am a participant, and such payments are exempt from Federal
estate taxation in the estate of my Spouse or me under Section 2039 of the
Code, such payments may (but are not required to) be used by the Trustee to
pay any of the participant's debts or taxes attributable to the participant's estate,
and they may (but are not required to) be used to pay any costs or expenses of
the administration of the participant's estate. The Trustee may negotiate and
receive such payments in any manner it deems prudent and consistent with the
tax (both estate and income) and other objectives of this Will first as they affect
my Spouse, second as they affect my children, third as they affect my
grandchildren, and fourth as they affect all other Beneficiaries under this Will.
The Trustee shall have the sole and absolute discretion to determine how such
payments, in whole or in part, shall be received under this Will (whether or not
the payment would be exempt from or includible in the participant's estate for
Federal and/or State estate tax purposes). The Trustee's decision in this regard
shall be final and shall be binding upon all parties howsoever interested. If such
payments otherwise would be exempt from Federal and/or State estate taxes, in
whole or in part, the Trustee is requested to consult with the personal
representative of the participant's estate before electing to receive such
otherwise exempt proceeds in such a manner as will subject them to Federal
and/or estate taxation in the participant's estate.
13. Creation of General Powers. The Trustee (other than any Beneficiary
of the Trust affected) is authorized in its sole discretion with respect to all or any
part of the principal of a Trust created pursuant to this Will that then is subject to
the terms of the Family Trust and has an inclusion ratio as defined in 26
U.S.C.A. § 2642(a) of the Code greater than zero, by an instrument filed with
the Trustee: (a) to create in a child of mine who at such time may receive
income distributions from such Trust a testamentary general power of
appointment within the meaning of 26 U.S.C.A. § 2041 of the Code (including a
power the exercise of which requires the consent of the Trustee other than any
beneficiary), which power of appointment may dispose of the property upon the
death of the child; (b) to eliminate such power or reduce it to a testamentary
power of appointment other than a general power of appointment, for all or any
part of such principal as to which such power was previously created pursuant
to this provision; and (c) irrevocably to release the right to create, reduce, or
eliminate such power of appointment. In authorizing such action, it is my desire
(but I do not direct) that a general power of appointment will be kept in effect
when the Trustee so acting believes the inclusion of the property affected by the
power in the child's gross estate may achieve a significant savings in transfer
taxes by having imposed on the property subject to the general power an estate
tax rather than a generation-skipping transfer tax. This also may permit a
greater use of the exemption from the generation-skipping transfer tax provided
under 26 U.S.C.A. § 2631 of the Code. As an inducement to the Trustee to
exercise the authority granted in this Article, I direct that the Trustee's decisions
under this Article shall be absolutely binding on all beneficiaries of the Trust and
of the estate of the person holding the power and that the Trustee shall incur no
liability by reason of any adverse consequence of such decisions to any
person.)
C. Transactions with Related Parties and Self-Dealing. The powers of the
Trustee to enter into any transaction shall in no way be limited by the fact that the same
or another party to such transaction is: a Beneficiary; the estate of a Beneficiary
(whether living or deceased); a trust created by or for the benefit of a Beneficiary
(whether living or deceased); my estate or the estate of my Spouse; a trustee of any
trust (including Trustees appointed in this Will) whether or not acting in a fiduciary
capacity; or an executor or administrator of any estate (including my estate or the
estate of my Spouse) whether or not acting in a fiduciary capacity.
D. Release of Power by Amendment of Trusts. Any Trustee shall have the
power and authority to amend the provisions of this Will in order to surrender, release,
renounce, or disclaim any one or more of the discretionary powers given by this Will to
that Trustee. Any such amendment shall be made by written instrument acknowledged
and filed in the land and/or trust records of the office of the County Clerk of my County.
After any power has been so surrendered, released, renounced, or disclaimed, it never
again shall be exercised by that Trustee.
E. Records; Inspection. The Trustee shall keep accurate and complete records of
Trust transactions. Any Beneficiary (or the Beneficiary's representative, authorized in
writing) may inspect the records at any reasonable time.
F. Annual Report. Upon written request by the Beneficiary or the Beneficiary's
personal representative, the Trustee shall make an annual report in writing to any living
Beneficiary over the age of _____ years who could, in the discretion of the Trustee,
receive any income or distribution from the Trust estate during that year. Such report
shall be for a calendar or fiscal year beginning each year on a date selected by the
Trustee as appropriate for this purpose and shall be submitted to such Beneficiary (or
to the guardian, conservator, committee, or other like official of any incapacitated
Beneficiary) with reasonable promptness after the end of such period. Each report shall
include a statement of all property on hand at the end of such year, all receipts and
disbursements during such year, all sales and purchases made during such year, and
of such other acts of the Trustee as may be necessary to furnish such Beneficiary with
adequate information as to the condition of the Trust estate.
G. Compensation and Bond. Any Trustee shall be entitled to reasonable fees
commensurate with its duties and responsibilities taking into account the value and
nature of the Trust estate and the time and work involved. The Trustee shall be
reimbursed for the reasonable costs and expenses incurred in connection with its
fiduciary duties under this Will. No Trustee, whether original or successor, shall be
required to furnish bond or other security, except as provided in this Will.
H. No Court Supervision. No Trustee shall be required to qualify before, be
appointed by, or in the absence of breach of trust, account to any court or obtain the
order or approval of any court in the exercise of any power or discretion.
I. Out-of-State Properties. If at any time any Trust estate shall consist in whole or
in part of assets located in a jurisdiction in which the Trustee is not authorized or is
unwilling to act, the Trustee may appoint an ancillary trustee for that jurisdiction and
may confer upon such ancillary trustee such rights, powers, discretions, and duties to
act solely with respect to such assets as the Trustee may deem appropriate. The
ancillary trustee shall be answerable to the Trustee for all monies and other assets that
may be received by it in connection with the administration of such property. The
Trustee may pay to the ancillary trustee reasonable compensation for its services and
may absolve it from any requirement that it furnish bond or other security.
J. Division of Trusts. I authorize (but do not direct) the Trustee to divide any Trust
established by this instrument, without court approval, into two or more separate Trusts
so that the generation-skipping transfer tax inclusion ratio as defined in 26 U.S.C.A. §
2642(a) of the Code with respect to each Trust after such division shall be either zero
or one. Unless otherwise specifically provided in this Will, the respective amounts of
any such division shall be made on the basis of the value of the assets on the date of
such division. Any such separate Trust shall have identical provisions as the trust so
divided. If a Trust is divided into separate Trusts, the Trustee may: (1) make different
tax elections with respect to each such separate Trust; (2) expend principal and
exercise or not exercise any other discretionary powers with respect to each such
separate Trust differently; (3) invest the property of each such separate Trust
differently; and (4) take all other actions consistent with each such Trust being a
separate entity. Further, the person holding any power of appointment with respect to a
Trust so divided may exercise such power differently with respect to the separate
Trusts created by the division. The Trustee is exonerated from any liability arising from
any exercise or failure to exercise these powers, provided the actions (or inactions) of
the Trustee are in good faith.
K. Merger of Trusts. If at any time the Trustee of any Trust created by this Will
(this Trust) shall also be acting as Trustee of any other trust (other Trust) for the benefit
of the same Beneficiary or Beneficiaries and upon substantially the same terms and
conditions, the Trustee is authorized and empowered, if in the Trustee's discretion such
action is in the best interest of the Beneficiary or Beneficiaries of this Trust, to transfer
and merge all of the assets then held in this Trust to and with such other Trust, and
then to terminate this Trust. The Trustee further is authorized to accept the assets of
the other Trust that may be transferred to the Trustee of this Trust and to administer
and distribute such assets in accordance with the provisions of this Will. The Trustee is
exonerated from any liability arising from any exercise or failure to exercise these
powers, provided that the actions (or inactions) of the Trustee are in good faith.
L. Corporate Trustee. The powers and authorities granted to the Trustee shall not
be limited by the fact that a Trustee is a trust company, bank, or financial institution, or
a member of a group of affiliated entities under common control, and no Trustee shall
be subject to limitations or restrictions imposed upon a trust company, bank, financial
institution, bank holding company, or upon fiduciaries generally, with respect to the type
of investment any such Trustee may make of its own funds or of the funds of others,
including affiliated entities. Specifically (but not by way of limitation), the Trustee may:
(a) retain, acquire, or otherwise deal in the capital stock or other securities of a Trustee
or of a corporation for which a Trustee is registrar, transfer agent, or affiliate of the
Trustee, such as a holding company; (b) deposit Trust funds with a Trustee or an
affiliate of the Trustee as a bank; and (c) contract or otherwise enter into transactions
with a Trustee as a bank or any of its affiliates or any other Trust for which it is acting as
Trustee.
M. Collection of Life Insurance Proceeds.
1. General. If my Trustee is the Beneficiary of any life insurance policy on
my life, then upon my death my Trustee shall promptly furnish to the insurance
company proof of loss, and shall collect and receive the proceeds of the policy,
less so much of the proceeds as shall be required to pay or provide for the
payment of any liability or obligation to the insurer in respect of the policy. In the
collection of such proceeds, the Trustee shall have the power to execute and
deliver receipts and other appropriate instruments, and to take such legal action
as is appropriate.
2. Contested Policy. If the payment of any policy is contested, the Trustee
shall be under no obligation to institute legal action for the collection of the
payment unless it is indemnified to its satisfaction for all costs, including
attorney's fees.
3. Reimbursement for Advances and Expenses. The Trustee may pay to
itself out of the funds in its hands the amount of any advances made by the
Trustee for expenses incurred in collecting or attempting to collect any sum from
any insurance company by suit or otherwise. Any such reimbursement to the
Trustee may be made prior to receipt of any sum from any insurance company.
4. Discharge of Insurance Company. No insurance company shall be
responsible for the Trustee's application or disposition of the proceeds of any
policy payable to the Trustee. The liability of an insurance company shall be
discharged upon payment of the proceeds to the Trustee.
N. Environmental Hazards.
1. Power to Deal with Environmental Hazards. The Trustee shall have
the power to use and expend the Trust income and principal to: (i) conduct
environmental assessments, audits, and site monitoring to determine
compliance with any environmental law or regulation under such law; (ii) take all
appropriate remedial action to contain, clean up, or remove any environmental
hazard including a spill, release, discharge, or contamination, either on its own
accord or in response to an actual or threatened violation of any environmental
law or regulation under such law; (iii) institute legal proceedings concerning
environmental hazards or contest or settle legal proceedings brought by any
local, state, or Federal agency concerned with environmental compliance, or by
a private litigant; (iv) comply with any local, state, or Federal agency order or
court order directing an assessment, abatement, or cleanup of any
environmental hazards; and (v) employ agents, consultants, and legal counsel
to assist or perform the above undertakings or actions.
2. Trustee's Right to Refuse Contributions. The Trustee, in its sole
discretion, may require, as a prerequisite to accepting property contributed to
the Trust, that the donor of such property provide evidence satisfactory to the
Trustee that: (i) the property is not contaminated by any hazardous or toxic
materials or substances; and (ii) the property is not being used and has never
been used for any activities directly or indirectly involving the generation, use,
treatment, storage, disposal, release, or discharge of any hazardous or toxic
materials or substances.
3. Exoneration of Trustee. No Trustee shall be liable for any loss or
depreciation in value sustained by the Trust as a result of the Trustee retaining
property upon which there is later discovered to be hazardous materials or
substances requiring remedial action pursuant to any Federal, state, or local
environmental law, unless the Trustee contributed to the loss or depreciation in
value through willful default, willful misconduct, or gross negligence.
V. Liability of Trustee and Persons Dealing with Trustee
A. Persons Dealing with Trustee. No purchaser from, or other person dealing
with, the Trustee shall be responsible for the application of any purchase money or
other thing of value paid or delivered to any Trustee, and the receipt by any Trustee
shall be a full discharge. No purchaser from, or other person dealing with, any Trustee,
and no issuer, transfer agent, or other agent of any issuer of any securities to which
any transaction with any Trustee shall relate shall be under any obligation to ascertain
or inquire into the power of the Trustee to transfer, pledge, or otherwise in any manner
dispose of or deal with any securities or other property comprising part of the Trust
estate.
B. Liability of Trustee. No Trustee shall be responsible or liable for any loss to the
Trust estate that may occur by reason of depreciation in value of the properties at any
time belonging to the Trust estate, nor for any other loss to the Trust estate that may
occur, except that each Trustee shall be liable for its own negligence or willful
misconduct.
C. Liability of Trustee for Acts of Others. No Trustee shall be liable or
responsible for the acts, omissions, or defaults of any agent or other person to whom
duties may be properly delegated under this Will (except officers or regular employees
of any Trustee), if such agent or person was appointed with due care. No Trustee shall
be liable or responsible for failure to contest the accounts of any other Trustee, or
otherwise to compel any other Trustee to redress any breach of trust, unless requested
in writing to do so by a Beneficiary or a guardian or guardian ad litem of a Beneficiary.
No Trustee shall be liable or responsible for any act within the sole power and
discretion of any other Trustee.
D. Limitation of Personal Liability of Trustee. No Trustee acting in its fiduciary
capacity under this Will shall incur any personal liability for obligations of the trust to any
third party who deals with the Trustee in the administration of the Trust estate. Each
Trustee shall be entitled to reimbursement from the Trust estate for any liability,
whether in contract or in tort, incurred in the administration of the Trust estate in
accordance with the provisions of this Will. Each Trustee may contract in such form as
to exempt the Trustee from such personal liability and to cause such liability to be
limited to the Trust estate. No successor Trustee shall have any duty, responsibility,
obligation or liability for, or any duty, responsibility, obligation, or liability for failure to
rectify, the acts or omissions of any predecessor Trustee.
E. Reliance on Probated Will of Person Possessing Power of Appointment.
Wherever in this Will a person is given a power of appointment by Will, the
Trustee may rely upon an instrument admitted to probate in any jurisdiction as
the last Will of the person possessing such power. If the Trustee has not
received written notice of the existence of such Will within a period of ______
(number) months after the death of the person possessing such power, the
Trustee may presume that such person died intestate, and the Trustee shall be
protected in acting in accordance with such presumption. This protection to the
Trustee shall not limit or qualify any power of appointment or the rights of any
person to pursue the property affected by the exercise of the power, irrespective
of the place of probate or time of discovery of any such Will.
F. Judgment and Discretion of Trustee Final. Wherever the judgment or
discretion of any Trustee may be exercised, it shall be final and binding upon every
person interested in the Trust estate. Any Trustee exercising any discretionary power
relating to the distribution or accumulation of principal or income, or to the termination
of any Trust, shall be responsible only for lack of good faith in the exercise of such
power.
VI. Change in Trustee
A. Definition of Trustee; Distribution of Powers. The Trustee, whether one or
more, whether male or female, whether individual or corporate, whether original,
successor, or substitute, is called Trustee in this Will. Each Trustee shall have the same
duties, powers, and discretions.
B. Resignation of Trustee. Any Trustee may resign by filing a written instrument
acknowledged of record in the land and/or trust records of the County Clerk of my
County, which filing shall deprive immediately any such resigning Trustee of a powers
as Trustee under this Will, except those powers appropriate to the administration of the
Trust during the time required for the transfer of the Trust assets, provided,
nevertheless, that at least ______ (number) days prior to such filing, the resigning
Trustee shall give written notice of the resignation to those persons who could in the
discretion of the Trustee receive income from the Trust estate and are at such time sui
juris. No purchaser from, or other person dealing with, any Trustee is obligated to
examine such public records, and any such person acting in good faith shall be
protected in all transactions with any Trustee whether or not any such resignation has
taken place.
C. Powers and Duties of Successor Trustee. Upon the appointment and
qualification of any successor Trustee, the same duties shall devolve upon, and the
same rights, powers, authorities, privileges, and discretions shall inure to it as to the
Trustee originally designated under this Will, and all rights, powers, authorities,
privileges, and discretions shall be exercised without the supervision of any court.
D. Reorganization or Substitution of Corporate Trustee. If a corporate Trustee
should, before or after qualification, change its name; be reorganized, merged, or
consolidated with, or acquired by any other corporation; or be converted into or assign
its trust functions to a different type of entity, the resulting entity shall be deemed a
continuation of the former one and shall continue to act as Trustee or continue to be
eligible to become a Trustee, as the case may be.
E. Investments in Common Trust Funds of a Bank. Notwithstanding anything
contained in this Will to the contrary, if any of the Trust estate is invested in a bank's or
other entity's common trust fund, removal of such bank or other entity as Trustee shall
be subject to the following provisions:
1. The authority of such Trustee to invest in the common trust fund shall
continue, and the transfer or payment of the Trust assets need not be made,
until the first evaluation date of the common trust fund that occurs at least
______ (number) days after written notice has been given to the Trustee.
2. If Trust assets are invested in more than one common trust fund, the
authority of such Trustee to invest in the common trust fund shall continue, and
the transfer or payment of the Trust assets need not be made, until each
evaluation date of the common trust funds has occurred at least once in the
period beginning ______ (number) days after written notice has been given to
the Trustee.
VII. Administration of Estate
A. Payment of Debts and Taxes. Except as otherwise provided in this Will, I direct
that all my legally enforceable debts, funeral expenses, expenses of the administration
of my estate, and Federal estate and state inheritance taxes, including interest and
penalties, becoming payable because of my death (except any generation-skipping
transfer tax imposed by 26 U.S.C.A. § 2601 of the Code, any excess retirement
accumulations tax under 26 U.S.C.A. § 4980A of the Code, or any recapture tax
imposed by 26 U.S.C.A. § 2032A of the Code) be paid out of my Residue.
Notwithstanding the foregoing sentence, I direct my Executor to recover any tax,
including interest and penalties on the same, imposed on property includible in my
gross estate by reason of 26 U.S.C.A. § 2044 of the Code or a similar provision of any
state law, from the person or entity in possession of or receiving the property as
provided in 26 U.S.C.A. § 2207A of the Code or a similar provision of state law.
However, such direction shall not apply to the extent so provided by the instrument
creating such property interest includible in my gross estate under 26 U.S.C.A. § 2044
of the Code or a similar provision of state law.
B. Powers of Executor.
1. General. In addition to the powers given to my Executor by law, I grant
to my Executor the following powers with respect to my estate:
a. To retain any property of my estate;
b. To convey, sell, transfer, exchange, partition, mortgage, pledge,
lease, assign, or otherwise dispose of, hypothecate, or deal with any and
all properties in my estate;
c. To borrow or lend money for such purposes and on such terms
and conditions as my Executor deems appropriate;
d. To invest and reinvest any assets, funds, properties, or income of
my estate in such properties or investments as my Executor deems
appropriate;
e. To extend or renew any indebtedness upon such terms and for
such time or times as my Executor deems appropriate;
f. To settle claims in favor of or against my estate;
g. To continue the operation of any proprietorship, partnership,
corporation or other business owned by my estate, including the power
to carry out and enforce the provisions of any agreement for the
disposition of my interest in any such business enterprise, even though
my Executor may be financially interested in such business or
agreement; and
h. To exercise all the powers granted to my Trustee in this Will.
My Executor may exercise these powers for any purpose and upon such
terms, conditions, and limitations (whether or not to exist longer than the
administration of my estate) that in the judgment of my Executor shall be
in the best interest of my estate and the Beneficiaries of my estate.
2. Time and Method of Distribution. Final distribution of my estate shall
be made when my Executor determines the time to be appropriate. Prior to such
time, partial distributions may be made whenever my Executor shall deem it
advisable. Distributions may be made in cash or in kind, or partly in each, and
for this purpose, the determination of my Executor as to the value of any
property distributed in kind shall be conclusive.
3. Selection of Assets for Distribution. My Executor shall in its sole and
absolute discretion select assets to be distributed in satisfaction of any devise or
bequest in my Will without respect to the income tax basis of such property. My
Executor specifically is excused from any duty of impartiality with respect to the
income tax basis of such property.
4. Conflicts of Interest. I realize that in the course of the administration of
my estate conflicts of interest may develop between Beneficiaries of my estate.
For example, conflicts may develop because of a choice of alternatives involved
in valuing assets for various purposes. In the resolution of any conflict of
interest, I request (but do not so direct) that my Executor first make a
reasonable effort to determine the overall effect of the conflict in the
administration of my estate and in the distributions to be made and then make
reasonable efforts to resolve the conflict by the mutual agreement of the
respective Beneficiaries or recipients. If a mutual agreement cannot be reached
after reasonable efforts, my Executor shall resolve the conflict in its sole and
absolute discretion.
5. Elections and Options. I confer upon my Executor the sole and
absolute discretion to exercise any election or option given to my Executor
under the revenue laws of the United States or any state in which this Will may
be probated or in which property of which I own an interest at the time of my
death may be located. My Executor may exercise such discretion without regard
to the relative interests of the Beneficiaries of my estate; without compensating
adjustments among the Beneficiaries of my estate; and notwithstanding the
possibility that such decisions may increase the amount of my taxable estate.
Without limiting the generality of the foregoing sentence, my Executor is
authorized, in its sole discretion, to claim any expense of administration of my
estate as an estate tax deduction or as an income tax deduction; to elect to
extend the payment of any tax over such period as may seem appropriate to my
Executor and available under law; to elect to value any asset of my estate under
any alternative valuation formula which may be permitted under the Code; to
select the alternative valuation dates for the valuation of my estate; to disclaim
or renounce, in whole or in part, any gift, inheritance, proceeds of any life
insurance or Employee Benefit Plan payable to or for the benefit of me or my
estate; and to file any tax returns for any year or years for which I have not filed
such return or returns prior to my death and to pay any taxes (together with any
interest and penalties) as my Executor shall deem proper.
6. Encumbered Distribution. My Executor is authorized to distribute to
any Beneficiary of my estate, including the Trustee of any trust created in this
Will or to any Beneficiary of such a trust, any asset of my estate subject to any
and all indebtedness incurred by me or by my Executor which indebtedness, in
the sole and absolute discretion or opinion of my Executor, need not be paid
first, or to distribute any such property or asset subject to any or all mortgages,
deeds of trust, or the liens, encumbrances, or obligations created by me or by
my Executor.
7. Methods of Payment to Certain Beneficiaries. If any Beneficiary to
whom my Executor is authorized by this instrument to make distributions is
under a legal disability or is, in the opinion of my Executor, incapable of properly
managing his or her affairs, my Executor may make such distributions in any
one or more of the following ways:
a. To such Beneficiary directly;
b. To the guardian, committee, conservator, or other similar official
of such Beneficiary;
c. To a relative of such Beneficiary to be expended by such relative
for the benefit of such Beneficiary, including payment to such relative;
d. To a custodian selected by my Executor under an applicable
Uniform Transfers to Minors Act;
e. To my Trustee to be held as a separate Trust for the benefit of
such Beneficiary, as provided in Article Three of this Will; or
f. By my Executor expending the same directly for the benefit of
such Beneficiary.
Any person (other than the Beneficiary) who receives a distribution for
the benefit of the Beneficiary pursuant to the preceding sentence is
authorized to give a valid receipt and discharge for the distribution. In
each case, the receipt by such Beneficiary or other person to whom
payment is made or entrusted shall be a complete discharge to my
Executor, and my Executor shall be without obligation to see to the
further application of such distribution.
8. Executor's Discretion Controlling. Any decision made under the
authority of this Article or any other provision of this Will by my Executor with
respect to any matter shall bind each Beneficiary of my estate, including the
Trustee of any trusts created in this Will, the Beneficiaries of such trusts, and
any other person interested in my estate, and my Executor shall not be required
to make any compensating adjustments between income or principal or among
any Beneficiaries, trustees, or any other person as a result of my Executor's
action or inaction.
9. Allocation of Generation-Skipping Transfer Tax Exemption. I
authorize my Executor to allocate my generation-skipping transfer tax exemption
(the “GST exemption” under 26 U.S.C.A. § 2631 of the Code) to and among
dispositions of property with respect to which I am the transferor, whether
contained in this Will or otherwise, in such manner as my Executor, in my
Executor's sole discretion, deems best calculated to secure the most effective
use of such exemption, based on circumstances and events either known or
reasonably foreseeable as of the expiration of the time within such allocation is
required to be made. While equality of treatment among different Beneficiaries
or beneficiary groups should be an important consideration in allocating such
exemption, it should not be the sole or even the primary consideration. For
example, a pro-rata allocation between two trusts might be appropriate if there
is a substantial likelihood that all or most of both of them will be distributed to or
terminate in favor of skip-persons as defined in 26 U.S.C.A. § 2613(a) of the
Code, but inappropriate if there is a substantial likelihood that all or a significant
portion of one of them will be distributed to or terminate in favor of non-skip
persons as defined in 26 U.S.C.A. § 2613(b) of the Code. Any allocation so
made
