SELF-DECLARATION OF LIVING TRUST made this day of,

Transcription

1 APPENDIX 11 REVOCABLE LIVING TRUST SELF-DECLARATION OF LIVING TRUST made this day of, 20, by PRINCIPAL, as Settlor, of, County of, City and State of New York. ARTICLE I DECLARATION OF LIVING TRUST I, PRINCIPAL, as Settlor, have transferred to myself, as Trustee, the property listed in Appendix "A" attached hereto, and I declare that I hold that property and all investments and reinvestments thereof in addition thereto, herein collectively referred to as the "Trust Estate" subject to the following terms and conditions. OR I, PRINCIPAL, as Settlor, have transferred to my,, OR, my,, as Co-Trustees, the property listed in Appendix "A" attached hereto, each individually and severally authorized to execute any and all documents required of the Trustee relative to the management of the Trust assets, and I declare that they hold that property and all investments and reinvestments thereof in addition thereto, herein collectively referred to as the "Trust Estate" subject to the following terms and conditions. 1

2 ARTICLE II NAME OF LIVING TRUST This trust shall, for convenience, be known as the PRINCIPAL SELF-DECLARATION OF LIVING TRUST and it shall be sufficient that it be referred to as such in any deed, assignment, bequest or devise. ARTICLE III FAMILY MEMBERS At the time of the execution of this Trust, the Settlor's immediate family group consists of: Settlor's wife, Settlor's children,, herein sometimes referred to as "spouse"., herein sometimes referred to as "child" or "children". Settlor's grandchildren,, herein sometimes referred to as "grandchild" or "grandchildren." The Settlor makes no provision, herein, for her grandchild,, due to ill health. The term "child" or "children" born of a person shall include any adopted child or children of that person. The term "descendants" or "issue" shall include adopted persons. ARTICLE IV ADDITIONAL PROPERTY As long as this Agreement remains unrevoked, either the Settlor or any other person, with the consent of the Trustee, may add other property to any Trust hereby created, by transferring 2

3 such property to the Trustee hereunder by deed, assignment or other instruments of transfer or bequest or devise and if so added, such property shall be covered by the provisions hereof, the same as if originally included hereunder. ARTICLE V RIGHTS AND POWERS RESERVED BY SETTLOR The Settlor shall have and possess and hereby reserves the following rights and powers to be exercised at any time and from time to time in writing and effective when delivered to the Trustee hereunder. A. To revoke this Agreement and any Trust established hereunder, in whole or in part, whereupon the Trust Estate or the part thereof affected thereby shall be distributed as the Settlor shall direct in writing; B. To change the identity or number, or both of the Trustee hereunder; C. To alter or amend this Agreement in any and every particular; and D. To withdraw any or all trust property from the operation of this agreement. ARTICLE VI SUCCESSOR TRUSTEE A. Successor Trustee 1. Settlor may resign as Trustee at any time by written notice to the Successor Trustee. 2. Upon Settlor's resignation or inability to manage Settlor's own affairs, the Settlor's spouse,, shall serve as Successor Trustee hereunder. In the event that Settlor's spouse is for any reason unable or unwilling to so serve, Settlor's children,, shall serve as alternate 3

4 Successor Co-Trustees hereunder. In the event that any of said children are for any reason unable to so serve, the other shall serve as alternate Successor Trustee. 3. Upon Settlor's death, Settlor's spouse,, and Settlor's,, shall serve as Successor Co-Trustees hereunder. In the event that Settlor's said daughter, is for any reason unable or unwilling to so serve, Settlor's, shall serve as Co-Trustee with Settlor's spouse. In the event that Settlor's spouse,, is for any reason unable or unwilling to serve as a Successor Co-Trustee hereunder, Settlor's children,, shall serve as second alternate Co-Trustees hereunder. In the event that any of said children are for any reason unable to so serve, the other shall serve as alternate Successor Trustee. 4. The word "Trustee", as used in this instrument, shall be construed to include the plural wheresoever applicable. B. Incompetency or Disability 1. In the event that Settlor is adjudicated to be incompetent, or by reason of illness, mental or physical disability is, in the opinion of the Successor Trustee, unable to properly handle his own affairs, then, and in that event, the Successor Trustee may, during the Settlor's lifetime, in addition to the payment of income and principal for the benefit of the Settlor, pay to or apply for the benefit of Settlor's spouse and children, such sums from the net income and from the principal of this Trust, in such shares and proportions as in the Successor Trustee's sole discretion, the Successor Trustee shall determine to be necessary or advisable from time to time for the use, care, support, health, maintenance or general welfare of Settlor's 4

5 said spouse and children, taking into consideration to the extent the Successor Trustee deems advisable, any other income or resources of Settlor's said spouse and children. (a) Definition of Disability Disability shall mean any time during the Settlor's lifetime, that any Trustee or Successor Trustee hereunder received a notice in writing signed by (a) the Settlor's physician and, (b) either the Settlor's spouse or another member of Settlor's immediate family, indicating that Settlor is too disabled to continue his involvement, except as beneficiary of this Trust. Upon receipt of such notice, the Settlor is relieved of all powers hereinabove reserved by the Settlor in the Settlor's individual or fiduciary capacity, such powers shall cease and terminate, and upon delivery of such notice, the Trustee or Successor Trustee shall continue to have those powers with respect to the Trust Estate given in this Trust Agreement. (b) Definition of Incompetency Incompetency shall mean any period of time in which any Trustee hereunder is in possession of any of the following: (a) a court order, which such Trustee deems jurisdictionally proper and still currently applicable, holding Settlor to be legally incompetent to act in his own behalf or appointing a guardian of his person and/or property to act for him; (b) duly executed, witnessed and acknowledged written certificates, at least one of which is unrevoked, of two licensed physicians (each of whom represents 5

6 that he or she is certified by a recognized medical board), each certifying that such physician has examined the Settlor and has concluded that, by reason of accident, physical or mental illness, progressive or intermittent physical or mental deterioration, or other similar cause, the Settlor had, at the date of the written certificate, become incompetent to act rationally and prudently in his own best interest; or (c) evidence, which such Trustee deems to be creditable and still currently applicable, that the Settlor has disappeared, is unaccountably absent, or is being detained under duress where he is unable, effectively and prudently, to look after his own financial best interests. 2. Anytime written notice as set forth in this Article VI is required to be given to the Trustee, or, anytime that evidence as set forth in this Article VI comes into the possession of the Trustee, then, in such event, if the Trustee is also the Settlor, the provisions of this Article VI shall be equally valid and effective if said written notice or said evidence is delivered to or in the possession of the Successor Trustee herein. C. Waiver of Bond No bond, surety or other security shall be required in this or any other jurisdiction of any fiduciary acting hereunder, any law of any State or jurisdiction notwithstanding. 6

7 ARTICLE VII SUCCESSION OF TRUSTEE A. Acceptance of Office by Trustee Any successor Trustee shall accept the office by written instrument and shall assume the duties thereof immediately upon delivery of the instrument to the other Trustee then serving, or if no Trustee is then serving, to any adult beneficiary, without the necessity of any other acts, conveyance or transfer. B. Vesting of Title in Trustee The title to the Trust Estate shall vest forthwith in any Successor Trustee acting pursuant to the foregoing provisions hereof, but any resigning or removed Trustee shall execute all instruments and do all acts necessary to vest such title in any Successor Trustee without a Court accounting. A Successor Trustee shall have no duty to examine the accounts, records and acts of the previous Trustee or Trustees and shall in no way or manner be responsible for any act or omissions to act on the part of the any previous Trustee. Any claim or action against any previous Trustee must, in any event, be asserted or filed by any beneficiary within one (1) year after such Trustee ceases to serve. C. Rights, Privileges and Powers of Successor Trustee Each Successor Trustee shall have, exercise and enjoy all of the rights, privileges and powers, both discretionary and ministerial, as are herein given to the original Trustee and shall incur all of the duties and obligations imposed upon the said original Trustee. 7

8 ARTICLE VIII INCOME AND PRINCIPAL DURING LIFETIME OF SETTLOR During the lifetime of the Settlor, the Trustee shall pay over to or apply all of the income of the Trust for the benefit of the Settlor or otherwise as the Settlor may from time to time direct in writing, and absent of said writing, then to the Settlor in monthly installments or more convenient installments, but at least quarter-annually, and also such sums from principal as the Settlor may request at any time in writing. During any period in which the attending physician or physicians of the Settlor shall certify to a Successor Trustee that the Settlor is physically or mentally incapacitated to manage Settlor's financial affairs, such Trustee shall pay or apply such amounts of income and principal of the Trust property as such Successor Trustee considers advisable for the comfortable maintenance, medical care and welfare of the Settlor, as well as for anyone whom Settlor is legally obligated to support. Any undistributed income hereunder shall be added to the principal of the Trust at the end of each fiscal year thereof. ARTICLE IX POST-MORTEM DISPOSITION Upon the death of the Settlor, the Trustee shall continue to hold the assets of the Trust Estate, as then constituted, together with any other property received by it from the Settlor, the Settlor's Estate, or from any other source, either then or thereafter and to invest and reinvest the same in the manner herein described for the following uses and purposes: A. Payment of Debts, Expenses and Taxes 1. The Trustee shall pay to the Estate of the Settlor from the principal of the Trust Fund, such amounts as may be needed to pay all or any part of the 8

9 Settlor's debts, funeral expenses and administration expenses of Settlor's Estate. The Trustee shall also pay to Settlor's Estate or the appropriate tax authorities all estate and inheritance taxes that may become payable by reason of the Settlor's death in respect of all property comprising the Settlor's gross estate for death tax purposes, whether or not such property passes under this Agreement, under the Settlor's Will or otherwise, it being intended that all such death taxes be borne by the Residuary Trust Estate established at Article X of this Declaration to the extent that the assets thereof are sufficient for that purpose. 2. In the event the Trustee is requested to pay any taxes, interest and penalties, that request shall not postpone the disposition of the remaining Trust Estate, but the Trustee shall have the right to withhold any amount as the Trustee, in the Trustee's discretions, deems necessary to pay that portion of the taxes, interest and penalties the Trustee is requested to pay. In the event the amount so withheld is insufficient for that purpose, the additional amount required shall be paid proportionately by the person or trusts to whom the remaining Trust Estate was distributed at the Settlor's death. In the event the amount withheld is more that the amount ultimately required for that purpose, the excess shall be distributed to each of those persons or Trusts, whichever the case may be, proportionately in accordance with the amount of the remaining Trust Estate distributed to them at the time of the Settlor's death under the provisions of this Trust Agreement. 3. Notwithstanding anything in this document to the contrary, in no event shall any portion of the taxes, interest and penalties be apportioned or allocated to 9

10 the Settlor's spouse or to the Credit Shelter Pecuniary Trust established in this Trust Agreement, or to any property passing to the Settlor's spouse under the terms of this Agreement or the Settlor's Will or otherwise. B. Credit Shelter Pecuniary Trust 1. If my wife,, survives me, the Trustees shall set aside a sum equal to the largest amount that can pass free of Federal estate tax under this Article by reason of the unified credit and State death tax credit (provided use of this credit does not require an increase in the State death taxes paid) allowable to my estate, but no other credit and after taking account of property disposed of by previous Articles of this Will and property passing outside of this Will which is includable in my gross estate and does not qualify for the marital or charitable deduction and after taking account of charges to principal that are not allowed as deductions in computing my Federal estate tax. For the purpose of establishing the sum disposed of by this Article the values finally fixed in the Federal estate tax proceeding relating to my estate shall be used. I recognize that no sum of money may be disposed of by this Article and that the sum so disposed of may be affected by the action of my executor in exercising certain tax elections. 2. The Trustees shall hold said sum in trust and so long as my said wife shall live, the Trustees shall pay to my said wife and/or to such of my descendants as may from time to time be living (my wife and my descendants being hereinafter referred to as the "permissible beneficiaries"), or apply for her and/or their use or benefit, such part, parts 10

11 or all of the net income of the trust received in each year, together with so much or all of the principal thereof and, at such time or times, as the Trustees, other than any permissible beneficiary who is also a Trustee, in their discretion, may determine, without regard to the other resources of the permissible beneficiary in whose favor such payment or application is proposed to be made, and without regard to the interest in the trust of any other person. Without in any way limiting the power and discretion hereinabove given to my said other Trustees, I want them to know that my wife's welfare is my primary concern; and, accordingly, I request (but do not direct) that income and/or principal be paid or applied to or for the use of my descendants only if my said other Trustees determine that my wife's needs are fully satisfied pursuant to the other provisions of this Trust or otherwise. 3. If the Trustees shall determine not to pay or apply for the use or benefit of any permissible beneficiary any part or all of the net income of the trust received in any year, such net income shall be accumulated and shall be added to the principal of the trust. 4. Upon the death of my said wife, I direct the Trustees to distribute the then principal of the trust, together with all of the net income thereof accrued, but not yet received and received, but still on hand or accumulated, in accordance with Article Ten, Paragraph B of this Trust. 11

12 ARTICLE X RESIDUARY TRUST ESTATE The Trustee shall hold in trust as the "Residuary Trust Estate" any and all other property in its hands not set apart for the Credit Shelter Pecuniary Trust, together with any property which may be receivable and designated for the Residuary Trust under the provisions of the Settlor's Will or otherwise, to be administered as follows: A. Distribution to Spouse 1. If Settlor's spouse,, survives Settlor, then during said spouse's lifetime all the net income from the Residuary Trust Estate shall be paid to or applied for such spouse's benefit in convenient installments, but not less frequently than quarter-annually. 2. The Trustee, in its sole discretion, is also authorized to pay to or apply for the benefit of Settlor's spouse such sums from the principal of the Residuary Trust Estate as the Trustee deems necessary or advisable from time to time for said spouse's medical care and support to which such spouse is accustomed at the time of Settlor's death, after considering all other income and cash resources that are available to said spouse from all other sources. 3. During the continuance of the Residuary Trust Estate, Settlor's spouse shall have the right in spouse's sole and absolute discretion to withdraw an amount or amounts from principal not exceeding Five Thousand ($5,000.00) Dollars in the aggregate in any taxable year of the Trust and, if Settlor's spouse shall be living on the last day of such taxable year, to withdraw an additional amount, if any, by which five (5%) percent of the 12

13 fair market value of the principal of the Trust (determined as of the last day of such taxable year without considering any property which may thereafter be added to the Trust) exceeds the aggregate amount previously withdrawn by Settlor's spouse in such taxable year. The rights of withdrawal of Settlor's spouse shall not be cumulative. The right to withdraw an additional amount based upon the year-end fair market value of principal shall be exercised by a written instrument delivered to the Trustee on or within thirty (30) days after the last day of such taxable year; within thirty (30) days after receiving such notice, the Trustee shall transfer and pay over the amount withdrawn in cash or in kind or partly in each as the Trustee shall in its sole and absolute discretion determine. 4. Distribution of Residuary Trust Estate upon Death of Settlor's Surviving Spouse Upon the death of the Settlor's spouse during the period of this Trust for Settlor's spouse's benefit, or upon Settlor's death in the event Settlor's spouse fails to survive her, the balance of the Residuary Trust Estate, as it is then constituted, together with undistributed or accumulated income thereon, shall be divided into separate shares of equal value, creating one (1) such share for each child of Settlor who shall then be living, and creating one (1) such share for the lawful descendents, collectively, of each child of Settlor who may then be deceased, except that no share shall be created for Settlor's grandson,, and no provision is made herein for said grandson, due to his medical condition, leaving one (1) or more lawful descendants living at the time of division, for distribution one (1) share to each, per stirpes, in the manner hereinafter described: 13

14 OR A. Distribution to Spouse If Settlor's spouse,, survives Settlor, the Trustee shall distribute the entire Residuary Trust Estate to her/the SELF- DECLARATION OF LIVING TRUST, dated, Disclaimer Settlor's spouse,, may timely disclaim all or any portion of any interest in property or power with respect to property passing to said spouse, or for his benefit. Such timely disclaimer may be exercised by delivering an irrevocable and unqualified refusal to accept all or any portion of such interest to the Trustee herein. 2. Administration of Disclaimed Property Any amount so disclaimed by the Settlor's spouse shall be held by the Trustee of this trust in a Disclaimer Trust for the use and benefit of Settlor's spouse, as follows: a. During the lifetime of Settlor's surviving spouse, the Trustee shall hold, administer and distribute the assets of the Disclaimer Trust as follows: 1) The Trustee shall pay or distribute to or apply for the benefit of Settlor's surviving spouse, for life, in at least quarterly installments, as much of the net income of the Disclaimer Trust, and as much of the 14

15 principal of the Disclaimer Trust, as the Trustee, in his sole discretion, deem necessary for the health, education, support and maintenance of Settlor's surviving spouse, to maintain at a minimum the Surviving spouse's accustomed manner of living, without regard to other income and resources available to Settlor's surviving spouse held free of the Disclaimer Trust. The Trustee shall accumulate and add to principal any net income not so distributed. 3. Surviving Spouse's Power over Disclaimer Not to Constitute General Power of Appointment Not withstanding other provisions of the Trust agreement, at any time that Settlor's surviving spouse is serving as a Trustee of the Disclaimer Trust, any power of discretion exercisable by the Settlor's surviving spouse with respect to that Trust, whether granted by this Trust instrument or conferred by law, insofar as that power or discretion may be exercisable to consume, invade or appropriate property for the benefit of Settlor's surviving spouse, his estate, creditors or the creditors of her estate, shall be exercisable only for his health, education, support and maintenance. 15

16 4. Distribution of Disclaimer Trust upon Death of Settlor's Surviving Spouse Upon the death of Settlor's surviving spouse, the then Trustees shall distribute the principal of the trust remaining on hand, together with all of the net income received, but still on hand, according to the terms set forth in Paragraph B and its subparagraphs of this Article X. B. Distribution to Child The Trustee shall distribute one hundred (100) percent of a share attributable hereunder to a child of the Settlor, to such child, in fee. C. Distribution to Grandchild In the event that a distribution hereunder is made to a grandchild of the Settlor, such distribution shall be made to such grandchild, in fee. Notwithstanding anything herein to the contrary, a distribution to a grandchild under the age of thirty-five (35) years shall be held IN TRUST for distribution as follows: 1. Distribution before Trusts for Grandchildren Created If any grandchild of Settlor shall have attained the age of twentyfive (25) years at the time the principal of the Residuary Trust Estate is initially divided into separate shares as hereinabove provided, the Trustee shall immediately thereafter distribute absolutely to such grandchild one-third (1/3) of his particular share, in fee, and if any grandchild shall have attained the age of thirty (30) years at such time, the Trustee shall distribute 16

17 absolutely to such grandchild one-half (1/2) of his particular share, and if any grandchild shall have attained the age of thirty-five (35) years at such time, the Trustee shall distribute to such grandchild all of his share. 2. Distribution of Income and Principal for Grandchildren Until any grandchild of Settlor attains the age of twenty-one (21) years, the Trustee shall distribute to or for the benefit of such grandchild so much of the income and principal of his separate trust as the Trustee, in the Trustee's absolute discretion, may determine to be necessary or desirable for the proper health, education, maintenance and support of such grandchild. The balance of the income of such separate trust not so distributed shall be accumulated and added to the principal thereof at the end of each fiscal year of such Trust. After a grandchild attains the age of twenty-one (21) years, the Trustee shall distribute to or for the benefit of such grandchild all of the income derived from his separate trust. In addition, the Trustee may distribute to or for the benefit of a grandchild so much of the principal of his separate trust as the Trustee, in the Trustee's absolute discretion, shall deem necessary or desirable for the proper health, education, maintenance and support of such grandchild. Further, the Trustee shall distribute absolutely to or for the benefit of a grandchild onethird (1/3) of the principal of his separate trust when such grandchild attains the age of twenty-five (25) years, one-half (1/2) of the remaining principal of his separate trust when such 17

18 grandchild attains the age of thirty (30) years, and the remaining principal and undistributed income of his separate trust when such grandchild attains the age of thirty-five (35) years. 3. Distribution upon Death of Grandchildren Should any grandchild of Settlor die before such grandchild's separate trust has been distributed absolutely to him, the then remaining principal of such trust shall be distributed, upon the death of the grandchild, absolutely to his then living issue, per stirpes. In the event there are no such living issue, the then remaining principal of the separate trust of the deceased grandchild shall be distributed to the lineal descendants of the parent of said grandchild, per stirpes, except to, and if none, to the Settlor's lineal descendants, per stirpes. For the purpose of this Paragraph, the term "parent" shall mean the parent who is the lineal descendant of the Settlor. A mandatory distribution of income pursuant to this Article shall be made in installments not less frequent than quarter-annually. D. Distribution to Lineal Descendant Other Than Child or Grandchild A distribution to a lineal descendant of the Settlor hereunder who is not a child or a grandchild, shall be made in fee, subject to the terms and conditions of Paragraph of Article X of this Declaration. E. Gifts during Lifetime Gifts of real or personal property, tangible or intangible, which the Settlor may make during Settlor's lifetime, if any, before or after the execution of 18

19 this Trust, to any person, shall not be deemed to be an advancement or a satisfaction to be applied to any share of any beneficiary of the Trust, and shall not be taken into account in connection with this "Residuary Trust." ARTICLE XI ADMINISTRATIVE PROVISIONS FOR TRUSTS A. The terms "Children", "Issue" and "Lineal Descendants", whenever used in this instrument shall be equivalent to blood relationship and relationship by adoption. B. While in the hands of the Trustee, neither the principal nor the income of the Residuary Trust Estate shall be liable for the debts of any beneficiary hereunder, nor shall the same be subject to seizure or attachment by any creditor of any beneficiary under any writ or proceeding under law or in equity, and no beneficiary hereunder shall have any power to sell, assign, encumber or in any manner to anticipate or dispose of his or her interest in the Residuary Trust, or in the income produced thereby. C. In the event that the income or any discretionary payments of principal become payable to a minor, or to a person under legal disability or to a person not adjudicated incompetent, but who, by reason of illness or mental or physical disability is, in the opinion of the Trustee, unable properly to administer such amounts, then such amounts shall be paid out by the Trustee in such of the following ways as it deems best: (1) directly to such beneficiary; (2) to the legally appointed guardian or conservator of such beneficiary; (3) to some relative or friend for the care, support and education of such beneficiary; or (4) by the Trustee, using such amounts directly for such beneficiary's medical care, education and support in reasonable comfort. 19

20 D. The Successor Trustee shall prepare an account for each year of each Trust, and whenever a Trustee ceases to serve, an account shall be prepared from the time of the last prior account through the end of the period of service. The Trustee shall keep each account available for inspection by and may deliver copies to the beneficiaries eligible within the period covered thereby to receive benefits from the Trust which is the subject or said account. The written approval of an account by such beneficiary, or by his or her parent or guardian if such beneficiary is a minor or otherwise incompetent, shall be final and binding as to all matters stated therein or shown thereby to that beneficiary and upon all persons then or thereafter claiming any interest through or under him or her in the income or principal of such trust. Failure of such beneficiary, or of his or her parent or guardian, if such beneficiary is a minor or otherwise incompetent, to deliver to the Trustee written objection to an account within thirty (30) days after receipt thereof shall constitute the final and binding approval thereof by the beneficiary. E. Income from any Trust created hereunder shall not be apportioned between successive beneficiaries. All income not actually paid to a beneficiary before termination of his or her interest shall be treated as though it had accrued and become payable thereafter; likewise, no credit or accrual shall be made for taxes, commissions or other charges theretofore made against income. F. Anything in this Trust to the contrary notwithstanding, no Trust created hereunder shall continue beyond twenty-one (21) years after the death of the last to die of those beneficiaries who were living at the time of Settlor's death; and upon the expiration of such period, all Trusts shall terminate and the assets thereof shall be distributed outright to those parties (and in the same proportions) as are then receiving the income therefrom. 20

21 G. Any Trustee may resign at any time by written notice to each beneficiary then entitled to receive or have the benefit of the income from the Trust. In case of the resignation, refusal or inability to act of any Trustee acting or appointed to act hereunder, and if no Successor Trustee has been otherwise designated by the Settlor or the Settlor's spouse pursuant to the terms of Article VI of this Declaration, the beneficiary or a majority in interest of the beneficiaries then entitled to receive or have the benefit of the income from the Trust, shall appoint a Successor Trustee as defined in Article VI hereof. H. Every Successor Trustee shall have all the powers given the originally named Trustee. No Successor Trustee shall be personally liable for any act or omission of any predecessor. With the approval of the beneficiary or a majority in interest of the beneficiaries entitled to receive or have the benefit of the income from the Trust, a Successor Trustee may accept the account rendered and the property received as a full and complete discharge to the Predecessor Trustee without incurring any liability for so doing. I. The parent, guardian or conservator of a beneficiary under disability shall receive notice and have authority to act for such beneficiary under this section. J. If Settlor's spouse,, and the Settlor shall die under such circumstances that it is doubtful who died first, Settlor shall be deemed to have survived said spouse. The Trust Estate shall be administered and distributed in all respects in accordance with such presumption. K. If any beneficiary other than Settlor's spouse and Settlor shall die under circumstances that it is doubtful who died first, it shall be presumed that Settlor survived such beneficiary. The Trust Estate shall be administered and distributed in all respects in accordance with such presumption. 21

22 ARTICLE XII POWERS AND DUTIES OF TRUSTEE Any fiduciary named in this Trust shall have all of the powers and protection granted to them by statute at the time of serving hereunder, including, but not limited to, the prudent man rule, New York State Estates, Powers and Trusts Law, Section OR Florida Probate Code, F.S. 737, et seq. (as may be amended from time to time). A. Investments (1) The Trustee of each Trust established hereunder (including any Successor Trustee) shall have the continuing, absolute, discretionary power to deal with any property, real or personal, held in such Trust(s). Such power may be exercised independently and without the prior or subsequent approval of any court or judicial authority, and no person dealing with such Trustee shall be required to inquire into the propriety of any of the actions of such Trustee. The Trustee shall not be limited to the type and character of investments in which the Trustee may invest the funds of this Trust, so long as the Trustee uses reasonable prudence and judgment in the selection of investments. The Trustee shall have the following powers, in addition to, and not by way of limitation of, the powers provided by law: (a) To retain such property for any period, whether or not the same be of the character permissible for investments by fiduciaries under any applicable law, and without regard to any effect the retention may have upon the diversification of the investments. (b) To sell, transfer, exchange, convert or otherwise dispose of, or grant options with respect to any security or property, real or 22

23 personal, held as part of the Trust Estate, at public or private sale, with or without security, in such manner, at such time or times, for such purposes, for such prices and upon such terms, credits and conditions as the Trustee may deem advisable. (c) To invest and reinvest in common trust funds, common stocks, preferred stocks, bonds, options, securities, mutual funds, money market funds, or other liquid asset funds maintained by brokerage houses and other financial institutions, and other property, real or personal, foreign or domestic, 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 or reinvestment may have upon the diversity of the investments. This includes, but is not limited to, short sales, buying on margin, maintaining margin accounts and pledging any securities as security for loans and advances made to the Trustee. (d) To render liquid the Trust Estate or any trust created hereunder, in whole or in part, at any time or from time to time, and hold 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 a trustee and beyond the duration of the Trust Estate or any trust created hereunder. (f) To join in or become a party to, or to oppose, any reorganization, readjustment, recapitalization, foreclosure, merger, voting trust, dissolution, consolidation or exchange, and to deposit any 23

24 securities with any committee, depository or trustee, and to pay any and all fees, expenses and assessments incurred in connection therewith, and to charge the same to principal; 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, or any adjournment of such meetings, or to vote by general or limited proxy with respect to any such shares of stock or other securities held by the Trustee. (h) To hold 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. (i) To pay, compensate, 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 therewith which the Trustee may deem advisable. (j) To borrow money for any purpose from any source including the Trustee or any other fiduciary 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, insure against loss by fire or other casualties, develop, subdivide, control, partition, mortgage, lease or otherwise deal with any and all real property; to satisfy and discharge or 24

25 extend the term of any mortgage thereon; to execute the necessary instruments and covenants to effectuate the foregoing powers, including the giving or granting of options in connection therewith; to make 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 taxes, water rents, assessments, 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, except in the case of a trust for which the marital deduction is allowable in determining the federal estate tax payable by Settlor's estate, to advance any income of the Trust for the amortization of any mortgage on property held in the Trust. (l) To make distribution of the Trust Estate or of the principal of any trust created hereunder in kind, and to cause any share to be composed of cash, property or undivided fractional shares in property different in kind from any other share. (m) To execute and deliver any and all instruments in writing which are deemed advisable to carry out any of the foregoing powers. No 25

26 party to any such instrument in writing signed by the Trustee shall be obliged to inquire into its validity. (n) To invest any part or all of the principal of the Trust Estate in any common trust fund, legal or discretionary, which may be established and operated by and under the control of the Trustee. (o) To allocate in the Trustee's sole discretion, in whole or in part, to principal and income, all receipts and disbursements for which no express provision is made hereunder, which allocation shall fully protect the Trustee with respect to any action taken or payment made in reliance thereon. (p) To make gifts of any real or personal property, tangible or intangible, consistent with a lifetime pattern established by the Settlor. (q) To abandon any property belonging to the Trust when, in the Trustee's sole discretion, such abandonment is in the best interests of the Trust and its beneficiaries. (r) To take any and all steps necessary, in the Trustee's sole discretion, to obtain and maintain eligibility of any beneficiary under this Trust for any and all public benefits and entitlement programs. Such programs include, but are not limited to, Social Security, Supplemental Security Income, Medicare and Medicaid. (s) To disclaim, in the Trustee's absolute discretion, all or any portion of any interest in property passing to the Trust Estate at or after the Settlor's death, regardless of the resulting effect of any other 26

27 provisions of this Trust or on any person interested in the Trust Estate. 2. Notwithstanding anything herein to the contrary, no individual Trustee who is also a beneficiary hereunder shall have any right, duty or authority hereunder concerning the "Residuary Trust." If any rights, powers, duties or discretions conferred upon any beneficiary in said beneficiary's capacity as a Trustee under this Agreement are determined to be a general power of appointment under Section 2041 of the Internal Revenue Code of 1986, as amended, which would cause any assets of the "Residuary Trust" to be included in said Trustee-Beneficiary's estate upon said Trustee- Beneficiary's death, then any such rights, powers, duties or discretions shall be null and void with respect to said Trustee-Beneficiary. 3. Notwithstanding anything herein to the contrary, the Trustee shall administer any and all Trusts created herein as separate and distinct, but as commonly administered shares. B. Compensation and Accounting 1. The Trustee shall not be entitled to receive compensation for services rendered hereunder, but shall be reimbursed for all reasonable expenses incurred in the management and protection of the Trust Estate; provided, however, that in the event a Successor Trustee is called upon to serve, such Successor Trustee shall be entitled to statutory commissions. 2. The Trustee shall render to the beneficiary or beneficiaries then entitled to the income from the Trust, statements of account of receipts and disbursements as Trustee hereunder at least annually. 27

28 ARTICLE XIII MISCELLANEOUS The paragraph headings used are for convenience only and shall not be resorted to for interpretation of this Trust. Wherever the context so requires, the masculine shall include the feminine and neuter and singular shall include the plural. If any portion of this Trust is held to be void or unenforceable, the balance of this Trust shall nevertheless be carried into effect. ARTICLE XIV GOVERNING LAW This Agreement and Trusts hereby created shall be governed and interpreted in accordance with the laws of the State of New York. IN WITNESS WHEREOF, I have signed and sealed this Self-Declaration this day of, PRINCIPAL, Settlor We certify that the above instrument was on the date thereof signed, sealed and declared by PRINCIPAL as his Self-Declaration of Living Trust in our presence and that we, at his request and in his presence and in the presence of each other, have signed our names as witnesses thereto, believing PRINCIPAL to be of sound mind and memory at the time of signing. residing at residing at residing at 28

29 (STATE OF NEW YORK) (COUNTY OF QUEENS) On the day of, 2002, before me personally came PRINCIPAL, to me known and known to be the individual described in and who executed the foregoing instrument, and acknowledged that he executed the same. Notary Public 29