REVOCABLE LIVING TRUST

(Q-TIP TRUST FORM)

 

 

I hereby transfer to __________________________________________________ hereinafter called the Trustee as Trustee, the property set forth on Schedule A attached hereto and made a part hereof, to be held IN TRUST, for the purposes and in accordance with the provisions which follow:

 

 

ARTICLE I:  Lifetime Benefits

 

Prior to my death, my Trustee shall:

 

(1)     pay over to me such part or all of the income or principal of this trust as I may from time to time direct;

 

(2)     pay or apply such part or all of the income and principal of this trust as it may deem necessary to provide for the proper support and maintenance of myself, my wife and my minor children and to provide for any medical or other expenses that I, my wife or my minor children may incur; and

 

 

ARTICLE II: Coordination with Probate Estate

 

Following my death, my Trustee shall collect all property distributable to my Trustee as a result of my death whether by will or otherwise.  In the collection of proceeds payable under any life insurance policies, payment to and receipt by the Trustee shall be a full discharge of the liability of any insurance company, and any such company need not take notice of this agreement or see to the application of any such payment by the Trustee.  All such property, together with all other property constituting this trust (hereinafter referred to as the trust fund), shall be held, managed and distributed as follows:

 

If my probate estate (excluding the income thereof) has insufficient liquid assets to pay my funeral expenses, claims against my estate, expenses of administering my estate, death taxes chargeable to my estate and to satisfy all pre-residuary devises under my will, my Trustee shall make available to my Executor, from the trust fund, such sum or sums as my Executor in its sole discretion shall determine to be necessary to satisfy such deficiency; provided my Trustee shall not pay to or otherwise make available for the benefit of my estate or my Executor life insurance proceeds, or any other assets, which would otherwise be exempt from the claims of creditors.

 

My Trustee shall pay out of principal those expenses connected with the administration of the trust fund (including but not limited to the attorney's fees and Trustee's commissions) incurred after my death.

 

 

ARTICLE III:  Disposition of Trust Estate

 

After satisfying the obligations created under Article II, my Trustee shall dispose of the balance of the trust fund as follows:

 

If my wife survives me, or if we die under such circumstances that there is not sufficient evidence to determine the order of our deaths, in which case she shall be deemed for purposes of this Article to have survived me, my Trustee shall hold the trust estate IN TRUST in accordance with the following provisions:

 

SECTION 1: Qualified Terminable Interest Property Trust

 

My Trustee shall pay the net income derived from this trust to my wife in convenient installments, but no less frequently than annually, and may pay to her such part or all of the principal of this trust as it may in its sole discretion determine.  In exercising this discretionary power, my Trustee may, but need not, consider any other means of support available to my wife and shall give primary consideration to her needs and desires.

 

Upon my wife's death, an amount equal to all death taxes attributable to property then held in this trust (determined by the personal representative of her estate at the appropriate effective marginal rates of tax rather than the average rates of tax which apply to her estate), shall be paid by my Trustee from the property held in this trust to her personal representative or the appropriate taxing authorities at such time or times as her personal representative may certify in writing as needed to pay such taxes. The determination of her personal representative as to the amount payable under this paragraph shall be conclusive upon all persons interested in this trust.

 

My Trustee shall distribute the balance of the principal of this trust to my then living issue, per stirpes, provided that property which would be distributed to a beneficiary of a trust created under Section 3 of this Article as the result of my wife's effective disclaimer of her interest in all or a portion of the property held IN TRUST for her benefit under this Article, shall not be distributed to such beneficiary but shall instead constitute the principal of such other trust.

 

SECTION 2: Qualified Election

 

If my Executor elects to qualify only a portion of this trust for the federal estate tax marital deduction, my Trustee shall have the continuing authority before the administration of my estate is completed to divide trust principal into two shares based upon the portion of the trust which would be included in my wife's gross estate for federal estate tax purposes determined as if she had died immediately prior to such division, and the resulting shares shall thereafter be administered as separate trusts which shall in all other respects be identical to the trust created under this Article for the benefit of my wife.  Prior to the creation of such separate trusts, any payment of principal to my wife shall be charged against the portion of the trust which my Executors elect to qualify for the federal estate tax marital deduction until such portion is exhausted.

 

SECTION 3: Disclaimer of Marital Trust Interests

 

If my wife disclaims all her interest in a specific portion of this trust, or all of her interests in this trust, the property constituting such portion or all of this trust, as the case may be, shall be set apart in a separate trust to be held by my Trustee IN TRUST in accordance with the provisions of Section 4 of this Article, except that to the extent my wife is a beneficiary thereunder having any interest which would preclude her disclaimer from being qualified for federal tax purposes, then for purposes of the property so disclaimed, she shall not be entitled to, and may not exercise her right to, receive, control, or appoint any such interest.  My Trustee shall set apart the property so disclaimed in a separate trust which shall in all other respects be identical to the trust under Section 4 of this Article.

 

SECTION 4: Disposition of Family Share

 

My Trustee shall pay whatever amount or amounts of the net income or principal, or both, of this trust as it shall determine to or for the benefit of such person or persons within a class composed of my wife and my ________________________________ (children or descendants), as it may select.  In exercising this discretionary power, my Trustee may, but need not, consider any other means of support available to any beneficiary.  My Trustee shall give primary consideration to the needs of my wife and the needs of those of my children who have not reached twenty-one (21) years of age or who have not completed their education.  Any net income not distributed shall be added to principal.

 

Upon my wife's death, my Trustee shall apportion in equal shares all property then constituting this trust, so that one share is apportioned for each child of mine who is then living and one share for the living issue, per stirpes, if any, of any child of mine who is then deceased.

 

Each share apportioned for the issue of a deceased child of mine shall be distributed to such issue, per stirpes.

 

Each share apportioned for a child of mine who has reached thirty-five (35) years of age shall be distributed to the child.

 

Each share apportioned for a child of mine who shall be under thirty-five (35) years of age shall be held by my Trustee IN TRUST, to pay the net income derived therefrom to the child in annual or more frequent installments, and also to pay to the child all or such part of the principal thereof as my Trustee shall in its sole discretion determine, provided that in exercising this discretionary power over principal, my Trustee shall consider other means of support available to the child and shall give primary consideration to supporting and educating the child.  My Trustee is specifically authorized to distribute trust principal to enable the child to purchase a home, to enter into a trade, profession or business, or for other similar purposes, provided my Trustee in its sole discretion shall determine that the depletion of the trust fund by such distributions is consistent with the best interests of the child.

 

When the child reaches twenty-five (25) years of age, the Trustee shall distribute to the child one-third of all the principal then in the child's trust; when the child reaches thirty (30) years of age, one-half of principal then remaining in the child's trust; and when the child reaches thirty-five (35) years of age, all of the principal then remaining in the child's trust.  If the child shall reach twenty-five or thirty years of age prior to his or her share being apportioned, then, when his or her share is set apart or thereafter increased by additions from other sources, the child shall be entitled to receive immediately one-third or two-thirds thereof as the case may be.

 

If the child shall die prior to reaching thirty-five (35) years of age, the trust shall then terminate, and my Trustee shall distribute all trust property upon such terms and provisions, to or among those of my descendants (other than the child) or the spouses of my deceased descendants (including the child) as the child may by will, specifically referring to this power, appoint.  My Trustee shall distribute all property not effectively appointed (1) to the child's surviving issue, per stirpes, or in default thereof, (2) to my then living issue, per stirpes, or in default thereof, (3) to the persons who would have been entitled thereto under the intestate laws of the State of ____________ if I had died intestate at that time domiciled in _____________ and owning such property; provided that property which would be distributed pursuant to this provision to a beneficiary of a trust created under this PART shall not be distributed to the beneficiary (regardless of his or her age) but shall instead be added to the principal of the beneficiary's trust.

 

If my wife predeceases me, all rights and interests under this Article shall be determined as if she had survived me and then had died immediately after my death.

 

 

ARTICLE IV: Revocability

 

I reserve the right to amend or revoke this agreement, without the consent of any other person, by a writing signed by me and delivered to my Trustee; provided that the duties, responsibilities and compensation of my Trustee shall not be altered without my Trustee's written consent.

 

 

ARTICLE V: Fiduciary Powers

 

I grant my Trustee (including any successor Trustee) the authority and power to exercise, in its sole discretion and without court order, in respect of any property forming part of any trust created under this agreement or otherwise in its possession hereunder, all powers conferred by law upon trustees, or expressed in this agreement, and I intend that the powers so granted be construed in the broadest possible manner..  In addition, my Trustee shall also have the power, authority and discretion hereinafter set forth:

 

(1)     Facility of Payments:  To apply for the benefit of, or to the use of, any person, any property (whether principal or income) vesting in or payable to such person, without seeing to the application of the payments so made and for which the receipt of the payee shall be full acquittance to my Trustee.

 

(2)     Non-Pro Rata Distribution:  To make distributions under this agreement (without the consent of any beneficiary) in cash or in specific property, real or personal, or in undivided interests therein, or partly in cash and partly in such property, and to do so without regard to the income tax basis of specific property allocated to any beneficiary (including any trust) and without making pro rata divisions of specific assets.

 

(3)     Holdback Trusts:  To withhold distribution of any property, whether principal or income, vesting pursuant to the provisions of this agreement in any person who is then under twenty-one (21) years of age and, if this power is exercised, the continuing power to hold such property in trust for such person; to apply such part of the income or principal therefrom at such times and in such amounts as my Trustee shall deem requisite or desirable for the support and education of such person; and to accumulate and add to trust principal all current income not so applied until such person attains twenty-one (21) years of age, or shall sooner die, whereupon the property then remaining in the trust shall be distributed to such person or to the personal representative of such person's estate, as the case may be.

 

(4)     Elimination of Small Trusts:  To terminate or not establish any trust created or to be created under this agreement (other than a qualified charitable remainder trust) whenever the total fair market value of the assets of any such trust is so small that my Trustee's annual fee for administering the trust would be the minimum annual fee set forth in my Trustee's regularly published fee schedule then in effect, or whenever my Trustee determines it would be contrary to the best interest of the beneficiaries by reason of legislation or unforeseen changes or circumstances to create or continue such a trust, in which event the property then constituting or receivable by such trust shall be distributed to the beneficiaries then entitled to the income of such trust.  If the beneficiaries of such income depend upon the exercise of my Trustee's discretion, then my Trustee shall distribute such property among those beneficiaries and in such proportions as my Trustee, in its sole discretion, shall determine, and its determination shall be binding and conclusive upon all interested persons.

 

(5)     Transactions Between Related Entities:  To sell assets of any trust created under this agreement to itself, as Executor or Trustee of any other trust or estate, to the beneficiaries thereof or to any member of my family at the fair market value thereof, and to purchase assets from any other such trust or estate, or from the beneficiaries thereof, or from any member of my family for any trust created under this agreement at the fair market value thereof; and, to the extent allowed by law, to lend money to itself as Executor or Trustee of such other trusts or estates, or to the beneficiaries thereof, or to any member of my family at rates of interest and with security determined by my Trustee to be adequate; providing I, my spouse, my parents or my descendants are the respective grantors or decedents of such other trusts or estates.

 

(6)     Court Accounting and Bond Excused:  My Trustee shall not be required to qualify, to make or file any inventory, appraisal, account or report to any court or to give bond (unless in each instance it is otherwise required to do so notwithstanding this provision), but shall be required to furnish at least annually to each current beneficiary a statement giving a summary of receipts and disbursements during each accounting period and assets on hand at the end of the accounting period.  Such accountings are deemed correct and are accepted if no notice to the contrary is received within 90 days.

 

(7)     Merger of Trusts:  To merge the assets of any trust created under this agreement (other than a trust qualifying for the marital deduction) with those of any other trust, by whomsoever created, maintained for the same beneficiaries upon substantially the same terms (even though the component trusts differ as to contingent beneficiaries, in which case, if the contingency occurs, the funds may be distributed in such shares as my Trustee, in its sole discretion, deems necessary to create a fair ratio between the various sets of remaindermen); provided, however, that property which would otherwise remain exempt from generation-skipping taxes shall not be merged with any other trust.

 

(8)     Retention of Trustee's Stock:  To retain any shares of stock which I may own at the time of my death in my Trustee or in the bank holding company of which my Trustee is a subsidiary or any affiliate company, or in any successor corporation to my Trustee or holding company; to exercise rights to purchase its own stock or securities convertible into its own stock when offered pro rata to stockholders and to purchase additional fractional shares to round out fractional share holdings of its stock occasioned by such exercises or by the receipt of a stock dividend.

 

(9)     Withholding For Taxes:  To withhold distribution of an amount of property sufficient, in its judgment, to cover any liability that may be imposed on my Trustee for estate or other taxes until such liability is finally determined and paid.

 

(10)   Investment of Cash:  To invest and reinvest any income or proceeds from trust assets in short-term investment funds or accounts pending instructions from me as to the disposition or investment thereof.

(11)   Provisions Regarding Holding and Management of Real Property:

 

(a)     To deal with matters involving the actual or threatened contamination of trust property (including interests in sole proprietorships, partnerships or corporations and any assets owned by such business entities) by hazardous substances, or involving compliance with environmental laws.  In particular, my Trustee is empowered:

      (i) To inspect any such property periodically, as it deems necessary, to determine compliance with any environmental law affecting such property, with all expenses of such inspection and monitoring to be paid from the income or principal of the trust;

      (ii) To respond (or take any other action necessary to prevent, abate or clean up) as it shall deem necessary, prior to or after the initiation of enforcement action by any governmental body, to any actual or threatened violation of any environmental law affecting any of such property, the cost of which shall be payable from trust assets;

      (iii) To refuse to accept property as a trust asset if it determines that such property is contaminated by any hazardous substance or that such property is being used or has been used for any activities directly or indirectly involving hazardous substances which could result in liability to the trust or otherwise impair the value of trust assets;

      (iv) To settle or compromise at any time any claim against this trust related to any such matter asserted by any governmental body or private party;

      (v) To disclaim any power which it determines may cause it to incur personal liability as a result of such matters, whether such power is set forth in this document, incorporated by reference herein, or granted or implied by any statute or rule of law;

      (vi) To decline to serve as Trustee or, having undertaken to serve, resign at any time it believes there is or may be a conflict between it in its fiduciary capacity and in its individual capacity because of potential claims or liabilities which might be asserted against this trust because of the type or condition of trust assets.

 

(b)     My Trustee shall not be personally liable to any beneficiary or other party interested in this trust, or to any third parties, for any claim against the trust for the diminution in value of trust property resulting from such matters, including any reporting of or response to (1) the contamination of trust property by hazardous substances, or (2) violations of environmental laws related to my trust; provided that my Trustee shall not be excused from liability for its own negligence or wrongful or willful acts;

 

(c)     When used in this document the term hazardous substance shall mean any substance defined as hazardous or toxic or otherwise regulated by any federal, state or local law, rule or regulation relating to the protection of the environment or human health (environmental law);

 

(d)     On behalf of myself and my successors, heirs and assigns, I hereby indemnify and hold harmless my Trustee from and against any and all claims, liabilities, penalties and costs, including attorneys' fees, arising from any claim, demand, order or other action related in any way to (1) the actual or threatened contamination of trust property by any hazardous substance, or (2) the generation, use, treatment, storage, disposal, release (actual or threatened) or discharge on or from trust property or in connection with operations conducted on trust property of any hazardous substance in violation of any environmental law.

 

(12)   Renounce Powers:  Following my death, to renounce, in whole or in part, any rights, privileges, powers and immunities granted to my Trustee, whether such rights, privileges, powers and immunities are granted under this agreement or conferred by law, by executing and filing a written renunciation with the clerk of court of the county in which proceedings have been commenced for the administration of my estate.  My Trustee's assumption of duties as fiduciary shall not waive or bar my Trustee's right to renounce any right, privilege, power or immunity.

 

(13)   Income and Principal Apportionment:  The Trustee shall have discretion to determine whether items should be charged or credited to income or principal, or be apportioned between income and principal, including the power to provide or not to provide a reasonable reserve against depreciation, depletion or obsolescence.  The Trustee shall exercise its discretion in such manner as it may reasonably deem equitable and just under all the circumstances and regardless of whether such items are charged or credited to or apportioned between income and principal as provided in  of the __________________ General Statutes (State).

 

Notwithstanding any other provision of this agreement to the contrary, no power or authority conferred by law or expressed or specifically incorporated in this agreement shall be exercised in a manner which would cause any distribution hereunder for the benefit of my spouse which would otherwise qualify for the federal estate tax marital deduction to fail to qualify for such deduction.  My spouse shall have the power to require my Trustee to make productive any non-income producing property in any trust which would otherwise qualify for the federal estate tax marital deduction, or to convert such property into productive property within a reasonable period of time.

 

 

ARTICLE VI: Resignation

 

My Trustee or any successor Trustee may resign during my lifetime by giving me thirty (30) days notice in writing, whereupon I shall have the right to appoint a successor Trustee.  Delivery to the successor Trustee or to me, if I do not appoint a successor Trustee, and proper accounting for all property received and disbursed by my Trustee shall discharge my Trustee from all responsibility and liability with respect to and in connection with this trust.

 

After my death my Trustee, or any successor Trustee, may resign as Trustee of any trust being held under this agreement in a writing signed and acknowledged and delivered to all current adult income beneficiaries of such trust, such resignation to be effective upon a successor Trustee being appointed to act in its place.  No judicial proceeding shall be necessary.  A majority of the beneficiaries entitled to receive such notice shall have the power to sign an acknowledged writing delivered to the then acting Trustee appointing a successor Trustee.

 

Any successor corporate Trustee domiciled outside the State of __________________ and duly appointed hereunder, shall be authorized to remove any personal property constituting the principal of such trust to the domicile of the successor corporate Trustee; provided that the laws in the State of ________________________ shall continue to govern the rights of beneficiaries in such property and the manner in which such trust is construed and administered.

 

Any successor Trustee is authorized and directed to accept from any prior Trustee the assets delivered by such predecessor on the basis of the predecessor's accounting for such assets without requiring an audit or other independent accounting of the transactions, acts or omissions of such prior Trustee, and any successor Trustee shall not have any duty, responsibility, obligation or liability whatsoever for the acts or omissions of such prior Trustee.

 

 

ARTICLE VII: Situs

 

This agreement shall be construed and the trusts created by this agreement shall be regulated and governed in accordance with the laws of the State of North Carolina.

 

 

ARTICLE VIII: Compensation of Fiduciary

 

As compensation for its services hereunder, my Trustee shall receive the commissions stipulated in its regularly adopted schedule of compensation in effect and applicable at the time of the performance of such services.

 

ACCEPTANCE CLAUSE

 

In Witness Whereof, I do hereby sign and seal this instrument, and my Trustee in executing same hereby acknowledges receipt of property set forth on Schedule A and accepts the trust created hereunder and covenants to faithfully discharge all duties of its office as Trustee, this _______ day of _______ (Month), _____ (Year).

 

 

_______________________________________ (SEAL)

Name of Grantor

 

 

_______________________________________ (SEAL)

Trustee