LIVING TRUST
DECLARATION OF TRUST, made as of this day of _____ , 20XX, between
NAME OF GRANTOR, having an address at ADDRESS, CITY, STATE, ZIP, as grantor
(hereinafter referred to as the "Grantor"), and NAME OF GRANTOR, having an address
as aforesaid, as trustee (hereinafter referred to as the "Trustee").
W I T N E S S E T H:
WHEREAS, the Grantor is the owner of the property more particularly described in
Schedule A attached hereto and made a part hereof; and
WHEREAS, the Grantor's wife is WIFE'E NAME, and the Grantor has one child,
CHILD'S NAME; and
WHEREAS, the Grantor desires to create a revocable trust of the property described
in Schedule A hereto, together with such monies, securities and other assets as the
Trustee hereafter may hold or acquire hereunder (said property, monies, securities and
other assets, together with any additions thereto received pursuant to the Grantor's last
will and testament or otherwise, being hereinafter referred to as the "trust estate"), for the
purposes and upon the terms and conditions hereinafter set forth.
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NOW, THEREFORE, in consideration of the covenants herein contained and other
valuable consideration, the receipt and sufficiency of which hereby is acknowledged, the
Grantor hereby transfers, conveys, assigns and delivers to the Trustee as and for the trust
estate the property more particularly described in Schedule A hereto, to hold the same,
and any other property which the Trustee hereafter may acquire, IN TRUST, for the
purposes and upon the terms and conditions hereinafter set forth:
FIRST ARTICLE
Directions Of Grantor
The Trustee shall hold, manage, invest and reinvest the trust estate, shall collect the
income therefrom, and shall pay any part or all of the income and principal to whomever
the Grantor from time to time may direct in writing. Until the Grantor hereafter may
direct to the contrary, the net income shall be paid to the Grantor quarter-annually.
Any income not so paid or applied shall be accumulated and added to the principal of
this trust at least quarter-annually.
SECOND ARTICLE
Disability Of Grantor
If at any time the Grantor, in the judgment of the successor Trustee, shall be under any
legal disability or shall be unable to manage properly his affairs by reason of illness or
mental or physical disability (whether or not a court of competent jurisdiction has
declared the Grantor incompetent or mentally ill or has appointed a conservator or other
legal representative for the Grantor), the successor Trustee may pay or apply so much or
all of the net income and the principal of the trust estate as the successor Trustee deems
necessary or advisable for the health, education, maintenance or support of the Grantor,
his wife and his child, in such amounts and proportions as the successor Trustee may
determine. The successor Trustee also may pay any gift taxes and income taxes incurred
by the Grantor, whether caused by the sale of any assets comprising the trust estate
or otherwise. Any income not so paid or applied shall be accumulated and added to the
principal of this trust at least quarter-annually.
In making any payment hereunder, the successor Trustee may consider, but shall not
be required to consider, the income and other resources of the Grantor, his wife and his
child. No such payment shall be charged upon a subsequent division of the trust estate
against the principal of any share which may be set apart for any beneficiary hereunder.
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THIRD ARTICLE
Successor Beneficiaries
Upon the death of the Grantor, the Trustee shall hold, manage, invest and reinvest the
trust estate, shall collect the income therefrom, and shall pay the net income to or for the
benefit of the Grantor's wife and child, for their health, education, maintenance or
support, in such amounts and proportions as the Trustee may deem advisable. In addition,
the Trustee may pay to or for the benefit of the Grantor's wife and child, for their health,
education, maintenance or support, any part or all of the principal of this trust, as the
Trustee may determine in the absolute discretion of the Trustee, without considering
other resources available to the Grantor's wife and child. The Grantor's wife shall
have the right to receive such portions of the principal of this trust as she from time to
time may demand. Any commission payable with respect to principal so withdrawn shall
be charged against such principal.
Upon the death of the Grantor's wife, the remaining principal of the trust estate,
together with any accrued and unpaid income thereon, shall be paid and distributed to the
Grantor's then living issue, by representation.
If the Grantor's child shall then be under the age of twenty-one (21), this trust shall
continue for the benefit of the child, in accordance with the aforesaid terms and
conditions, until the child attains said age. At such time as the child shall attain the age of
twenty-one (21) years, the trust for the child shall terminate and the balance of the
principal thereof at that time remaining, together with any accrued and unpaid income
thereon, shall be paid and distributed to the child, discharged of trust. If the child shall
die prior to attaining the age of twenty-one (21) years, the principal of the child's trust at
that time remaining, together with any accrued and unpaid income thereon, shall be
paid and distributed to the then living issue of the child, by representation, or if there is
no living issue, to the then living issue of the Grantor, by representation, or if there is no
living issue of the Grantor, to those who would take from the child if the child had died
without a will. If any such issue is the income beneficiary of another trust under this
Agreement, any property which would pass to such issue shall instead be added to the
principal of that trust.
If there are no issue of the Grantor then living, the trust estate shall be paid and
distributed to such persons and in such proportions as the same would be distributed
under the laws of the State of (NAME OF STATE) then in force had the Grantor then
died intestate, a resident of (NAME OF STATE) and the owner of said property.
FOURTH ARTICLE
Use Of Principal
The Trustee is authorized, at any time and from time to time, to pay to, or apply to
the use of, the beneficiary of any trust held hereunder, for such beneficiary's health,
education, maintenance or support, any part or all of principal of such trust as the
Trustee may determine in the absolute discretion of the Trustee, without necessarily
taking into account other resources available to such beneficiary. No such payment shall
be charged upon a subsequent division of the trust estate against the principal of any
share which may be set apart for a beneficiary.
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FIFTH ARTICLE
Rights To Demand Principal
The income beneficiary of any trust at any time held hereunder shall have the right to
demand and receive from the principal of such trust in each of its fiscal years the greater
of $5,000 or five percent of the fair market value of such principal determined as of the
date the request to withdraw is made by written notice to the Trustee. Such right shall
lapse to the extent it is not exercised in any year. Any commission payable with respect
to funds so withdrawn shall be charged against such funds.
SIXTH ARTICLE
Distributions To Minors Or Incompetents
In any case in which the Trustee is authorized or directed by any provision of this
Agreement to pay or distribute income or principal to any person who shall be a minor or
incompetent, the Trustee, in the absolute discretion of the Trustee and without
authorization of any court, may pay or distribute the whole or any part of such income or
principal to such minor or incompetent personally, or may apply the whole or any part
thereof directly to the health, education, maintenance or support of such minor or
incompetent, or may pay or distribute the whole or any part thereof to the guardian,
committee, conservator or other legal representative, wherever appointed, of such minor
or incompetent or to the person with whom such minor or incompetent may from time
to time reside, or in the case of a minor, may pay or distribute the whole or any part
thereof to a custodian for such minor under any gifts to minors or transfers to minors act.
Evidence of such payment or distribution or the receipt therefor by the person to whom
any such payment or distribution is made shall be a full discharge of the Trustee from all
liability with respect thereto, even though the Trustee may be such person.
The Trustee, in the absolute discretion of the Trustee, may defer payment or distribution
of any or all income or principal to which a minor may be entitled until such minor shall
attain the age of twenty-one (21) years, or to make such payment or distribution at any
time and from time to time, during the minority of such minor, holding the whole or the
undistributed portion thereof as a separate fund vested in such minor but subject to the
power in trust hereby given to the Trustee to administer and invest such fund and to use
the income or principal thereof for the benefit of such minor as if such fund were held in
trust hereunder. No bond or other security and no periodic accounts shall be required
with respect to such fund, and the same shall be subject to commission as if it were a
separate trust fund. The Trustee shall pay and distribute any balance of such fund to such
minor when such minor shall attain the age of twenty-one (21) years. Except as is herein
above provided, if such minor shall die before attaining the age of twenty-one (21) years,
the Trustee shall pay and distribute such balance to the personal representatives,
executors or administrators of the estate of such minor. The word "minor", wherever used
in this Article SIXTH, shall mean any person who has not attained the age of twenty-one
(21) years.
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SEVENTH ARTICLE
Payment Of Debts
Upon the death of the Grantor, the Trustee may pay from the principal of the trust
estate the amount of any estate or death taxes, by whatever name called, imposed under
the laws of any jurisdiction by reason of the Grantor's death, whether in respect of
property passing under this Agreement or the Grantor's last will and testament or
otherwise, and the amount of all of the debts which the Grantor's estate must pay, the
expenses of his last illnesses and funeral, and the expenses of administering his estate.
The Trustee may rely upon the written certification of the personal representatives,
executors or administrators of the Grantor's estate as to the amount of any such tax,
debt or expense, without any duty to inquire as to the correctness thereof, and, in its
discretion, may make payment thereof either to said personal representatives, executors
or administrators or to the taxing authority or person to whom such amount is owed.
EIGHTH ARTICLE
Grantor's Right To Revoke Or Amend
The Grantor reserves the right, at any time and without the consent of any person or
notice to any person other than the Trustee, to amend or revoke in whole or in part this
Agreement or any trust created hereunder, including the right to change the terms or
beneficiaries thereof, by delivering to the Trustee written notice of such amendment or
revocation signed by the Grantor. No _____ amendment of this Agreement, however,
shall increase the obligations or reduce the commissions of the Trustee without the
consent of the Trustee. Upon any such revocation, the Trustee shall deliver to the Grantor
all property in the possession or control of the Trustee with respect to any trust which
has been revoked and shall execute and deliver any instruments necessary to release any
interest of the Trustee in such property. The sale or other disposition by the Grantor of
the whole or any part of the trust estate held hereunder shall constitute as to such whole
or part a revocation of this Agreement and the trust or trusts affected thereby. The
Grantor reserves the power and right during the life of the Grantor to collect any
rent, interest or other income which may accrue from the trust estate and, in his sole
discretion, to accumulate such income as a trust asset or to pay such income to the
Grantor individually and not in any fiduciary capacity. The Grantor further reserves the
power and right during life of the Grantor to mortgage or pledge all or any part of the
trust estate as collateral for any loan.
NINTH ARTICLE
Powers Of Trustee
In the administration of any property, real or personal, at any time forming a part of
the trust estate, including accumulated income, and in the administration of any trust
created hereunder, the Trustee, in addition to and without limitation of the powers
provided by law, shall have the following powers to be exercised in the absolute
discretion of the Trustee, except as otherwise expressly provided in this Agreement:
(a) To retain such property for any period, whether or not the same is of the
character permissible for investments by fiduciaries under any applicable law, and
without regard to the effect any such retention may have upon the diversity of
investments;
(b) To sell, transfer, exchange, convert or otherwise dispose of, or grant options with
respect to, such property, at public or private sale, with or without security, in such
manner, at such times, for such prices, and upon such terms and conditions as the
Trustee may deem advisable;
(c) To invest and reinvest in common or preferred stocks, securities, investment
trusts, bonds and other property, real or personal, foreign or domestic, including any
undivided interest in any one or more common trust funds, whether or not such
investments be of the character permissible for investments by fiduciaries under any
applicable law, and without regard to the effect any such investment may have upon
the diversity of investments;
(d) To render liquid the trust estate or any trust created hereunder in whole or in
part, at any time and from time to time, and to hold unproductive property, cash or
readily marketable securities of little or no yield for such period as the Trustee may
deem advisable;
(e) To lease any such property beyond the period fixed by statute for leases made by
fiduciaries and beyond the duration of any trust created hereunder;
(f) To join or become a party to, or to oppose, any reorganization, readjustment,
recapitalization, foreclosure, merger, voting trust, dissolution, consolidation or
exchange, and to deposit any securities with any committee, depository or trustee, and
to pay any fees, expenses and assessments incurred in connection therewith, and to
charge the same to principal, and to exercise conversion, subscription or other rights,
and to make any necessary payments in connection therewith, or to sell any such
privileges;
(g) To vote in person at meetings of stock or security holders and adjournments
thereof, and to vote by general or limited proxy with respect to any stock or
securities;
(h) To hold stock and securities in the name of a nominee without indicating the trust
character of such holding, or unregistered or in such form as will pass by delivery, or
to use a central depository and to permit registration in the name of a nominee;
(i) To initiate or defend, at the expense of the trust estate, any litigation relating to
this Agreement or any property of the trust estate which the Trustee considers
advisable, and to pay, compromise, compound, adjust, submit to arbitration, sell or
release any claims or demands of the trust estate or any trust created hereunder
against others or of others against the same as the Trustee may deem advisable,
including the acceptance of deeds of real property in satisfaction of notes, bonds and
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mortgages, and to make any payments in connection therewith which the Trustee may
deem advisable;
(j) To borrow money for any purpose from any source, including any trustee at any
time acting hereunder, and to secure the repayment of any and all amounts so
borrowed by mortgage or pledge of any property;
(k) To possess, manage, develop, subdivide, control, partition, mortgage, lease or
otherwise deal with any and all real property; to satisfy and discharge or extend the
term of any mortgage, deed of trust or similar instrument thereof; to execute the
necessary instruments and covenants to effectuate the foregoing powers, including the
giving or granting of options in connection therewith; to make repairs, replacements
and improvements, structural or otherwise, or abandon the same if deemed to be
worthless or not of sufficient value to warrant keeping or protecting; to abstain from
the payment of real estate taxes, assessments, water charges and sewer rents, repairs,
maintenance and upkeep of the same; to permit to be lost by tax sale or other
proceeding or to convey the same for a nominal consideration or without
consideration; to set up appropriate reserves out of income for repairs, modernization
and upkeep of buildings, including reserves for depreciation and obsolescence, and to
add such reserves to principal and, if the income from the property itself should not
suffice for such purposes, to advance out of other income any sums needed therefor,
and advance any income of the trust for the amortization of any mortgage, deed of
trust or similar instrument on property held in the trust;
(l) To purchase from the legal representatives of the estate of the Grantor (or the
estate of the Grantor's wife) or from the trustees of any trust established by the
Grantor (or by the Grantor's wife) any property constituting a part of such estate or
trust at its fair market value and to make loans for adequate consideration to such
legal representatives or trustees, upon such terms and conditions as the Trustee may
determine in the absolute discretion of the Trustee;
(m) To carry insurance of the kinds and in the amounts which the Trustee considers
advisable, at the expense of the trust estate, to protect the trust estate and the Trustee
personally against any hazard;
(n) To make distribution of the trust estate or of the principal of any trust created
hereunder in cash or in kind, or partly in kind, and to cause any distribution to be
composed of cash, property or undivided fractional shares in property different in kind
from any other distribution, and to determine the fair valuation of the property so
allocated, with or without regard to the tax basis; to hold the principal of separate
trusts in a consolidated fund and to invest the same as a single fund; to split trusts for
purposes of allocating GST exemptions (within the meaning of Section 2642(a) of the
Internal Revenue Code); and to merge any trusts which have substantially identical
terms and beneficiaries, and to hold them as a single trust;
(o) To employ and pay the compensation of accountants, attorneys, experts,
investment counselors, custodians, agents and other persons or firms providing
services or advice, irrespective of whether the Trustee may be associated therewith;
to delegate discretionary powers to such persons or firms; and to rely upon
information or advice furnished thereby or to ignore the same, as the Trustee in its
discretion may determine;
(p) To execute and deliver any and all instruments or writings which it may deem
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advisable to carry out any of the foregoing powers; and
(q) To exercise all such rights and powers and to do all such acts and enter into all
such agreements as persons owning similar property in their own right might lawfully
exercise, do or enter into. Except as otherwise provided herein, the Trustee may
determine, when there is reasonable doubt or uncertainty as to the applicable law or the
relevant facts, which receipts of money or other assets should be credited to income or
principal, and which disbursements, commissions, assessments, fees and other expenses
should be charged to income or principal. Any distributions or dividends payable in the
stock of a corporation, and rights to subscribe to securities or rights other than cash
declared or issued by a corporation, shall be dealt with as principal. The proceeds from
the sale, redemption or other disposition, whether at a profit or loss, and regardless of the
tax treatment thereof, of any property constituting principal, including mortgages or
similar instruments and real estate acquired through foreclosure or otherwise, shall
normally be dealt with as principal, but the Trustee may allocate a portion of any such
proceeds to income if the property disposed of produced no income or substantially less
than the current rate of return on trust investments, or if the Trustee shall deem such
action advisable for any other reason. The preceding provisions of this paragraph
shall not be deemed to authorize any act by the Trustee which may be a violation of any
law prohibiting the accumulation of income.
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No person who deals with any Trustee hereunder shall be bound to see to the
application of any asset delivered to such Trustee or to inquire into the authority for, or
propriety of, any action taken or not taken by such Trustee.
Notwithstanding anything to the contrary contained herein, during such time as any
current or possible future beneficiary of any trust created hereunder (other than the
Grantor) may be acting as a Trustee hereunder, such person shall be disqualified from
exercising any power to make any discretionary distributions of income or principal to
himself or herself (unless the discretion to make such distributions is limited by an
ascertainable standard within the meaning of Section 2041(b)(1)(A) of the Internal
Revenue Code), or to satisfy any of his or her legal obligations, or to make discretionary
allocations of receipts or disbursements as between income and principal. No Trustee
who is a current or possible future beneficiary of any trust hereunder (other than the
Grantor) shall participate in the exercise of any powers of the Trustee which would cause
such beneficiary to be treated as the owner of trust assets for tax purposes.
No Trustee shall be liable for acts or omissions in administering the trust estate or any
trust created by this Agreement, except for that Trustee's own actual fraud, gross
negligence or willful misconduct. If any Trustee becomes liable as Trustee to any other
person who is not a beneficiary in connection with any matter not within the Trustee's
control and not due to the Trustee's actual fraud, gross negligence or willful misconduct,
such Trustee shall be fully indemnified and held harmless by the trust estate and any
trust created hereunder giving rise to such liability, as the case may be, against and in
respect of any damages that such Trustee may sustain, including without limitation
attorneys' fees. No successor Trustee shall incur any liability, by reason of qualifying as a
Trustee hereunder, for the acts or omissions of any predecessor Trustee.
The Trustee is authorized, but not required, to accept any property transferred to the
Trustee by any person during such person's lifetime or by such person's last will and
testament. Any property so transferred to, and accepted by, the Trustee shall become a
part of such trust or trusts created by this Agreement as such person shall direct and may
be commingled with the other property in the trust or trusts to which such property has
been added and shall be held, administered and disposed of as a part of such trust or
trusts.
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TENTH ARTICLE
Appointment Of Trustee
The Grantor appoints himself as Trustee hereunder. The Grantor hereby appoints
NAME OF SUCCESSOR TRUSTEE, having an address at ADDRESS, CITY, STATE,
ZIP, as successor Trustee hereunder in the event of the death of the Grantor, or his
physical or mental incapacity. The term "Trustee" wherever used herein shall mean the
trustee in office from time to time. Any such trustee shall have the same rights, powers,
duties, authority and privileges, whether or not discretionary, as if originally appointed
hereunder. No bond, surety or other security shall be required of any Trustee acting
hereunder for the faithful performance of the duties of Trustee, notwithstanding any law
of any State or other jurisdiction to the contrary.
ELEVENTH ARTICLE
Accounts Of Trustee
The Trustee, at any time and from time to time, may render to the Grantor an account
of the acts and transactions of the Trustee with respect to the income and principal of any
trust created hereunder, from the date of the creation of such trust or from the date of the
last previous account of the Trustee. After the death of the Grantor, the Trustee, at any
time and from time to time, may render an account to the living person or persons who
are entitled, at the time of such account, to receive all or a portion of the income of the
trusts herein created. The approval of any person of full age, or a guardian or parent of a
minor or incompetent person, to whom an account is rendered shall, as to all matters
stated therein, be final and binding upon him or such minor or incompetent person, or any
persons claiming through him or such minor or incompetent person, as the case may be.
A person of full age, or a guardian or parent of a minor or incompetent person, to whom
an account is rendered shall be deemed to have approved the account if he assents to the
account in writing or if he does not communicate to the Trustee his written objections to
the account within sixty days after the receipt of the account (provided the account was
accompanied by a notice of said sixty day period within which to raise objections).
The Grantor shall have full power and authority on behalf of all persons interested in
any trust hereunder, whether such interest relates to income or principal, to settle any
account of the Trustee. Such settlement shall be final and binding upon all persons so
interested in such trust. Upon such settlement, the Trustee shall be fully and completely
discharged and released from all further liability with respect to acts and transactions set
forth in the account so settled. The Trustee shall not be required at any time to file any
account in any court, nor shall the Trustee be required to have any account judicially
settled. Nothing herein, however, shall be construed as limiting the right of the Trustee to
seek a judicial settlement of any account.
TWELFTH ARTICLE
Decisions Of Trustee Are Conclusive
The determination of the Trustee in respect of the amount of any discretionary
payment of income or principal from any trust established hereunder, and of the
advisability thereof, shall be final and conclusive on all persons, whether or not then in
being, having or claiming any interest in such trust, and upon making any such payment,
the Trustee shall be released fully from all further liability or accountability therefore.
The right of any beneficiary to any payment of income or principal shall in every case
be subject to any charge or deduction which the Trustee may make against the same
under the authority granted to the Trustee by any law or by this Agreement.
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THIRTEENTH ARTICLE
Simultaneous Death
If any beneficiary under this Agreement shall die simultaneously with the Grantor or
any other person upon whose death such beneficiary shall become entitled to receive
either income or principal under this Agreement, or in such circumstances as to render it
difficult or impracticable to determine who predeceased the other, then for purposes of
this Agreement such beneficiary shall be deemed to have predeceased the Grantor or such
other person. The provisions of this Agreement shall be construed as aforesaid,
notwithstanding the provisions of any applicable law establishing a different presumption
of order of death or providing for survivorship for a fixed period as a condition of
inheritance of property.
FOURTEENTH ARTICLE
Rights Of Beneficiaries Are Not Assignable
No disposition, charge or encumbrance on the income or principal of any trust
established hereunder shall be valid or binding upon the Trustee. No beneficiary shall
have any right, power or authority to assign, transfer, encumber or otherwise dispose of
such income or principal or any part thereof until the same shall be paid to such
beneficiary by the Trustee. No income or principal shall be subject in any manner to any
claim of any creditor of any beneficiary or liable to attachment, execution or other
process of law prior to its actual receipt by the beneficiary.
FIFTHTEENTH ARTICLE
Construction
The validity and construction of this Agreement and the trusts created hereunder shall
be governed by the laws of the State of (NAME OF STATE). Any provision herein
which refers to a statute, rule, regulation or other specific legal reference which is no
longer in effect at the time said provision is to be applied shall be deemed to refer to the
successor, replacement or amendment to such statute, rule, regulation or other reference,
if any, and shall be interpreted in such a manner so as to carry out the original intent of
said provision. For purposes of this Agreement, the disability or incapacity of an
individual (including the Grantor or any Trustee) shall be conclusively established by a
written statement signed by such individual's then attending physician and filed with the
records of any trust established hereunder attesting that, in such physician's opinion,
such individual is unable to manage his or her affairs. Such written statement shall be
conclusive evidence of such fact, and any third party may rely on same in dealing with
any trust established hereunder and shall not be obliged to inquire whether such
individual is no longer under such disability or incapacity at the time of such dealings.
Wherever used in this Agreement and the context so requires, the masculine shall
include the feminine and the singular shall include the plural, and vice versa.
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The captions in this Agreement are for convenience of reference, and they shall not
be considered when construing this Agreement. If under any of the provisions of this
Agreement any portion of the trust estate would be held in trust beyond a date twentyone years after the death of the last survivor of the Grantor, his wife, and the issue of the
Grantor and other beneficiaries hereunder in being when this Agreement becomes
irrevocable; then, upon such date, the trust of such portion shall terminate and the
principal, and any unpaid income thereof, shall be paid and distributed to the person or
persons then living who would have been entitled to receive the income therefrom had
the trust continued, in the proportions to which they would have been so entitled.
SIXTEENTH ARTICLE
Binding Effect
This Agreement shall extend to and be binding upon the heirs, personal representatives,
executors, administrators, successors and assigns of the undersigned Grantor and
upon the Trustee acting hereunder.
SEVENTEENTH ARTICLE
Short Name
This Agreement and the trusts created hereunder may be referred to, in any other
instrument, by the name: "NAME OF GRANTOR Living Trust dated , 20xx". Any
transfers to this Agreement or any trust hereunder may refer to the aforesaid name or to
"NAME OF GRANTOR as Trustee under NAME OF GRANTOR Living Trust dated ,
20xx", with or without specifying any change in Trustee or any amendment to this
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first above written.
_______________________________
NAME OF GRANTOR
STATE OF ________ , COUNTY OF____________________________, SS.:
The foregoing instrument was acknowledged before me on the day of ,
20xx by NAME OF GRANTOR. IN WITNESS WHEREOF I hereunto set my hand and
official seal._______________________________
Notary Public
My commission expires on
SCHEDULE A
TRUST ESTATE PROPERTY
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