Introductory Clause
Article I. Declarations
1.1 Trust name
1.2 Identifications
1.3 Purpose
1.4 Additions
1.5 Registration
Article II. Retained Control
2.1 Amendment and revocation
Article III. Trustee
3.1 Definition
3.2 Named successor
3.3 [Additional trustee / Addition of beneficiary trustee]
3.4 Resignation
3.5 Removal of a trustee
3.6 Appointment of successor
3.7 Professional trustee
3.8 Successor in interest
3.9 Substitute fiduciary
3.10 Compensation
3.11 Acceptance
3.12 Trustee obligations
3.13 Limitations
3.14 Powers of cotrustees
3.15 Powers exercisable by one or more trustees
3.16 Third parties
3.17 Reliance on certificate
Article IV. Distribution for Settlor[and Spouse]
4.1 Income
4.2 Principal
4.3 At Settlor’s death
4.4 Family portion
4.5 Marital portion
Family Trust
4.6 Distributions
Marital Trust (General Power of Appointment)
4.7 General directions
Marital Trust (QTIP)
4.7 General directions
Spouse’s Trust (Single QTIP)
4.4 General directions
Article V. Distribution for Others
5.1 Allocation
5.2 Specific gifts
5.3 Tangible personal property
5.4 Balance of property
5.5 Shared trust / Separate trusts
Provisions Applicable to All Trusts
5.6 Representation
5.7 Payments to a guardian
5.8 Beneficiary’s personal use of trust assets
5.9 Retained share
5.10 Absence of beneficiaries
5.11 Payment of charitable gifts
Article VI. General Provisions
6.1 Allocation between family and marital portions
6.2 Periodic payments
6.3 Facility of payments
6.4 Production of income
6.5 Undistributed income
6.6 Ademption of specific gifts
6.7 Nonexoneration
6.8 Payments to minors and incapacitated persons
6.9 Receipt from a beneficiary
6.10 Spendthrift provision
6.11 Survival
6.12 Incapacity
6.13 Perpetuity savings clause
6.14 Treatment of additions
6.15 Settlor's intent regarding modifications/terminations of trust
6.16 Judicial modification/termination of trusts
6.17 Nonjudicial modification/termination of trusts
6.18 Distribution on termination
6.19 Life insurance
6.20 Powers of appointment
6.21 Separate asset account
6.22 Tax terminology
6.23 Notices
6.24 Construction
6.25 Definitions relating to beneficial interests
6.26 Child and descendant
6.27 Spouse
6.28 Taking against the will
6.29 Retirement plan
6.30 Business investments
Article VII. Administrative Powers
7.1 Take control of assets
7.2 Retention of assets
7.3 Receipt of assets
7.4 Life insurance
7.5 Split-dollar agreements
7.6 Contractual obligations
7.7 Charitable pledges
7.8 Deposits and investments
7.9 Acquisition and disposition
7.10 Repairs and alterations
7.11 Administer real estate
7.12 Leases
7.13 Mineral interests
7.14 Disclaimer
7.15 Abandon assets
7.16 Vote securities
7.17 Pay liabilities on securities
7.18 Nominee
7.19 Insurance
7.20 Borrow funds
7.21 Loans
7.22 Pledge for beneficiary loans
7.23 Compromise
7.24 Make payments
7.25 Exercise rights and options
7.26 Principal and income allocations
7.27 Agents
7.28 Attorneys
7.29 Legal proceedings
7.30 Sale or exchange
7.31 Business interests
7.32 Exoneration
7.33 Claims
7.34 Tax matters
7.35 Distributions
7.36 Transfer
7.37 Execute instruments
7.38 Benefits
7.39 Resolve disputes
7.40 Powers after termination
7.41 Common ownership
7.42 Situs of trust
7.43 Benefit of transaction
7.44 Selective allocation
7.45 Ancillary fiduciary
7.46 Deal with other fiduciaries
7.47 Delegation of powers
7.48 Medical records
7.49 Division of trust assets
7.50 Consolidate trusts
7.51 Distribution postponement
7.52 Environmental concerns
7.53 Digital assets
Article VIII. Accounts
8.1 Statements
8.2 Recipients
8.3 Inspection of records
8.4 Limitation on proceedings against trustee
8.5 Court approval
Article IX. Choice of Law
9.1 Governing law
[NAME]TRUST
[Choose one. DRAFTING NOTE: The preamble identifies Settlor and the one or those who initially serve as Trustee. Section 3.2 must be drafted to coordinate with the preamble.]
On [date], [name], as Settlor, establishes this Agreement with [name] as Trustee.
On [date], [name], as Settlor and Cotrustee, establishes this Agreement with [names] as Cotrustees.
On [date], [name], as Settlor and Trustee, establishes this Agreement.
On [date], [name], as Settlor and Cotrustee, establishes this Agreement with [name] as Cotrustee.
On [date], [name], as Settlor and [Cotrustee / Trustee], [and with [name] as Cotrustee,] amends this Agreement with reference to the following facts:
A. The [name] Trust was established by Settlor[, formerly referred to as “Grantor,”] on [date].
B. In Article [II /__] of the Agreement, Settlor reserved the right to amend the trust, in whole or in part. [Settlor previously exercised this right on [date].]
C. Settlor now wishes to [further] amend the Agreement to revise various provisions [and to remove [name] as [Cotrustee / Trustee] and name [name] as [Cotrustee / Trustee]] and, for the sake of clarity, has decided to completely restate the terms of the trust.
THEREFORE, IT IS AGREED that the [name] Trust is amended and restated in its entirety to read as follows:
Article I. Declarations
1.1 Trust name. The name of this trust is the [name] Trust.
[Choose one version of ¶1.2. DRAFTING NOTE: The definition of “child” and “descendant” is found in ¶6.24. If this standard definition is not appropriate or if Settlor intends to omit a child, that fact should be made clear here and in the definition section of Article VI.]
1.2 Identifications. [Settlor’s spouse is [name].][Settlor’s only child is [name]. / Settlor’s living children are [name] and [name].]
1.2 Identifications. [Settlor’s spouse is [name].] Settlor has no children. [Settlor’s siblings are [name], [name], and [name].]
1.2 Identifications. Settlor has no spouse or children and does not wish to name any siblings.
1.2 Identifications. [Settlor’s spouse is [name].] Settlor’s living children are [name] and [name]. The omission of my child [name] and [his / her] descendants is intentional and is not the result of accident or mistake.
1.2 Identifications. [Settlor’s spouse is [name].] Settlor’s living children are [name] and [name]. [Settlor’s “child” or “children” means [these children / this child] and all children who may be born to or adopted by Settlor in the future. / Settlor’s “child” or “children” means only [these children / this child].] The omission of my child [name] and [his / her] descendants is intentional and [not the result of accident or mistake / not for lack of love and attention].
1.3 Purpose. This trust is established to provide management of assets during Settlor’s lifetime and to act as the means of distributing Settlor’s assets after Settlor has died.
Trustee agrees to hold, administer, and distribute the assets it receives in accordance with this Agreement.
1.4 Additions. Settlor or any other person may transfer assets to Trustee at any time by assignment, will, beneficiary designation, or any other means.
1.5 Registration. If permitted by law, this trust is exempt from registration.
Article II. Retained Control
2.1 Amendment and revocation. During Settlor’s lifetime, this Agreement may be revoked partially or completely or amended in any respect. This power may be exercised by Settlor at any time and without the consent of Trustee or anyone else, but the revocation or amendment must be in writing. No amendment, however, may increase the duties or responsibilities of Trustee without Trustee’s written consent. [As a cautionary note, no amendment should be made without determining the effect of the amendment on the characterization of the trust as foreign or domestic under federal income tax laws of the United States.]
Article III. Trustee
3.1 Definition. The term “Trustee” refers to the one or to those acting as Trustee or Trustees, regardless of number. Individual trusts under this Agreement need not have the same Trustee.
[Choose one version of ¶3.2. DRAFTING NOTE: Do not name the beneficiary of a discretionary trust as sole trustee (or sole successor trustee) if the trust does not limit the invasion of principal with an ascertainable standard unless you intend the trust to be included in the beneficiary’s taxable estate.]
3.2 Named successor. If the original trustee becomes unable or unwilling to serve, [name] shall succeed as Trustee.
3.2 Named successor. If the original trustee becomes unable or unwilling to serve, [name] and [name] shall succeed as cotrustees.
3.2 Named successor. If the original trustee becomes unable or unwilling to serve, the first person named below and the others as alternates or successors, in the order of preference listed, shall succeed the original trustee and any successor trustee:
[name]
[name]
[name]
3.2 Named successor. If an original trustee becomes unable or unwilling to serve, the remaining trustee shall continue to serve.
3.2 Named successor. If an original trustee becomes unable or unwilling to serve, the remaining trustees shall continue to serve. When all original trustees become unable or unwilling to serve, [name] shall succeed as Trustee.
3.2 Named successor. If an original trustee becomes unable or unwilling to serve, [name] shall succeed that person as a trustee.
[Each version of ¶3.3 is optional, and none or both may be included.]
3.3 Additional trustee. Trustee may appoint a [professional] cotrustee to serve under this Agreement.
3.3 Addition of beneficiary trustee. A beneficiary who has attained age 21 may elect to serve as cotrustee of any trust established under Article V of this Agreement of which he or she is the sole current trust beneficiary.
3.4 Resignation. A trustee may resign by notice to each current income beneficiary; each other then serving trustee; and, if there is no other then serving trustee, the next named successor trustee. If an individual trustee has given an agent under a durable power of attorney general authority to act with respect to the individual trustee’s personal finances, that agent of the individual trustee may give notice of resignation on the individual trustee’s behalf, and the resignation will be effective to the same extent as if the notice had been given personally by the individual trustee. The determination that an individual trustee is incapacitated, as defined in this Agreement, constitutes the resignation of that person as a trustee.
[DRAFTING NOTE: A beneficiary with a power to remove and appoint a trustee may be deemed to have a general power of appointment over the trust (although it should not be a general power if a professional or independent trustee is required or if the distribution provisions are limited to ascertainable standards).]
[3.5 Removal of a trustee. After the death or during the incapacity of Settlor in the case of each trust established under this Agreement, [Settlor’s spouse has / Settlor’s spouse has or, if incapacitated or deceased, a majority of the current income beneficiaries in the nearest generation to Settlor who are competent adults have / a majority of the current income beneficiaries in the nearest generation to Settlor who are competent adults have] the right to remove a [professional] trustee, with or without cause.] This power to remove a trustee is exercised in a nonfiduciary capacity.
[DRAFTING NOTE: The restriction in the optional last sentence of the following paragraph (referencing IRC 672(c)) is intended to avoid having the powers of the trustee attributed to the person who holds the power to appoint a successor trustee. If the appointment is limited to a professional trustee or the trust is designed in a way that would permit the powerholder to serve as the sole trustee (e.g., all income to the powerholder, principal to the powerholder subject to an ascertainable standard, and no other current trust beneficiary), the optional last sentence need not be included. Use the last bracketed sentence if using the optional provision that permits the beneficiary to appoint a successor trustee to avoid having the beneficiary be deemed to have the trustee powers, unless discretionary distributions are limited to an ascertainable standard and the assets may not be used to meet the beneficiary’s support obligations.]
3.6 Appointment of successor. [If a successor trustee is or becomes unable or unwilling to serve, no one shall succeed that person so long as [a professional / another] trustee is then serving.] If, at any time, there is no designated successor willing and able to serve as Trustee of a trust established under this Agreement, [Settlor’s spouse may / Settlor’s spouse may or, if incapacitated or deceased, a majority of the current income beneficiaries in the nearest generation to Settlor who are competent adults may / a majority of the current income beneficiaries, or, if none, those who would be beneficiaries on the death of the current measuring life, in the nearest generation to Settlor who are competent adults may] appoint a successor [professional] trustee within 30 days of the vacancy. If the appointment is not made within 30 days of the vacancy,] a court having jurisdiction may appoint a successor [professional] trustee. [If the prior trustee is removed, neither a person who possesses or shares the power to remove a trustee, nor anyone who is related or subordinate (within the meaning of IRC 672(c)) to such a person may be appointed a successor, additional, or special trustee.] This power to appoint a successor trustee is exercised in a nonfiduciary capacity.
[DRAFTING NOTE: The following optional section allows a trustee to appoint a successor. Care should be taken to ensure this section coordinates with the other provisions of Article III.]
3.6 Appointment of successor by trustee. For each trust established under this Agreement, Trustee may, by notice to each current trust beneficiary, appoint a successor trustee to serve when the current trustee becomes unable or unwilling to serve. The appointment shall become effective, however, only if there is no successor trustee named in the preceding sections of this Article who is willing and able to serve as Trustee when the vacancy arises. Trustee may amend or revoke a prior appointment of a successor trustee under this section by notice to each current trust beneficiary.
3.7 Professional trustee. The term “professional trustee” means a bank, trust company, other entity that provides trustee services to the general public, or an individual who regularly serves or holds himself or herself out generally as a fiduciary for trusts and estates. The term “professional trustee,” however, does not include any person who is related or subordinate (within the meaning of IRC 672(c)) to Settlor or any trust beneficiary.
3.8 Successor in interest. Any reference to a fiduciary in this Agreement or to an entity referenced in this Article shall include any successor in interest to that entity arising by merger, consolidation, reorganization in another form, or name change.
3.9 Substitute fiduciary. If Trustee is unable or unwilling to exercise one or more fiduciary powers, from time to time, regarding a specific trust matter or asset, Trustee may appoint, or petition a court having jurisdiction to appoint, a special trustee to exercise the fiduciary power on a temporary or permanent basis or may request that the court exercise the fiduciary power on a temporary or permanent basis.