This complex will is designed for a married person with minor children, when federal estate taxation is a major concern. No specific gifts of cash or personal property are made under this sample Will. For estate tax purposes, all of the Testator's residuary estate is allocated between the Testator's wife, if living, and a family trust created under the will (also called aunified credit trust or by-pass trust ). The allocation is based upon a "fractional marital" formula."
For additional information about marital formulas, see "About Marital Formulas." Separate testamentary trusts are created for children under age 30 upon the death of both the Testator and his wife. Guardians are named for minor children. All trusts created under this estate plan are testamentary trusts because they are created under this will. No living trusts are created."
LAST WILL AND TESTAMENT
GEORGE W. DUNN
ARTICLE I: DECLARATIONS
A. I declare that I am married as of the date of this Will and that my wife's name is Susan P. Dunn. I further declare that I have two (2) children, namely: William C. Dunn of _______________, and Karen R. Dunn of _______________.
B. If subsequent to the execution of this Will there shall be an additional child or children born to or adopted by me, I direct that such birth or adoption shall not revoke this Will and that all references herein to my children and their descendants shall include both my present children and their descendants and any such after-born children and their descendants.
ARTICLE II: DEBTS AND EXPENSES
I direct that all of my legally enforceable debts, funeral expenses and estate administration expenses be paid as soon after my death as may be practicable, except that any debt or expense secured by a mortgage, pledge or similar encumbrance on property owned by me at my death need not be paid by my estate, but such property may pass subject to such mortgage, pledge or similar encumbrance.
ARTICLE III: TAXES
I direct that all estate, inheritance, legacy, transfer, succession and other death taxes or duties (together with interest and penalties thereon, if any) that are levied or assessed upon or with respect to any property included as part of my gross estate, whether such property passes under the provisions of this Will or otherwise, shall be paid out of my residuary estate as an administrative expense, without any proration or apportionment that might otherwise be required by law.
ARTICLE IV: TANGIBLE PERSONAL PROPERTY
A. I give and bequeath all of the tangible personal property that I may own at the time of my death, which is not otherwise specifically bequeathed under this Will, including my personal effects, jewelry, household furniture and furnishings, garden and lawn furnishings and equipment, books, silver, china, glass, rugs, art objects, hobby equipment and collections, wearing apparel, automobiles, and other personal articles, to my wife, Susan P. Dunn, if she survives me. If my wife does not survive me, then I give and bequeath all of the aforesaid property to my children who survive me, in substantially equal shares, to be divided in such manner as they shall agree or, if they shall fail to agree upon a division within six (6) months after the date of my death, as my Executrix shall determine.
B. I may leave a memorandum of my wishes regarding the ultimate disposition of some or all of my tangible personal property, and I would hope that my wishes as to the ultimate disposition of such property would be respected. However, such memorandum shall not affect the absolute nature of the bequests made under this Article IV.
ARTICLE V: RESIDENTIAL REAL ESTATE
I give and devise to my wife, Susan P. Dunn, if she survives me, absolutely and free of trust, all of my right, title and interest in and to all residential real estate used by my wife or by me as a permanent or seasonal home at the time of my death, together with all property or liability insurance policies relating to such residential real estate. If my wife does not survive me, such residential real estate shall be distributed as part of my residuary estate as hereinafter provided in Article VI of this Will.
ARTICLE VI: RESIDUARY ESTATE
All the rest, residue and remainder of the property that I may own at the time of my death, whether real, personal or mixed, of whatever kind and nature and wherever situated, including all property that I may acquire or become entitled to after the execution of this Will, or other gifts made by this Will that fail for any reason, but excluding any property over or concerning which I may have any power of appointment (all hereinafter referred to as my "residuary estate"), I give, devise and bequeath as follows:
1. If my wife, Susan P. Dunn, survives me, I give, devise and bequeath to her, outright and free of trust, the largest fractional share of my residuary estate, up to the whole thereof, which, when added to the value of all property that passes or has passed to my wife under other provisions of this Will or in any manner other than under this Article VI, and which qualifies for the federal estate tax marital deduction, will result in the maximum marital deduction allowable in determining the federal estate tax payable by my estate. Notwithstanding anything contained herein to the contrary, if the maximum marital deduction available to my estate is more than necessary to eliminate the federal estate tax payable by my estate, after taking into consideration the unified credit and the state death tax credit (but only to the extent that the use of the state death tax credit does not increase the state death tax payable by my estate), but no other credits, then the fractional share described above shall be reduced so that it will result in the smallest federal estate tax marital deduction necessary to eliminate such federal estate tax.
2. In determining the fractional share to be distributed to my wife under subparagraph 1 above, all values shall be as finally determined for federal estate tax purposes. My Executrix shall have the power to allocate and designate the assets that will constitute such fractional share, which may be in cash or in kind. To the extent that other assets qualifying for the federal estate tax marital deduction are available, my Executrix shall not allocate to such fractional share any asset that does not qualify for the federal estate tax marital deduction or with respect to which a credit for foreign death taxes is allowable.
3. My Executrix may estimate the size of the fractional share and may distribute assets to my wife in partial satisfaction thereof, subject to adjustment upon the final settlement of the federal estate tax proceedings in my estate. Assets used to satisfy such fractional share shall be valued at their respective fair market values as of the date of distribution.
4. In no event shall the assets allocated to such fractional share be charged with or reduced by the amount of any succession, inheritance, transfer and estate taxes (including interest and penalties thereon) that are levied or assessed upon or with respect to any property included as part of my gross estate for the purpose of any such tax until the balance of my residuary estate has been exhausted.
5. The balance of my residuary estate, including any assets that may be disclaimed by my wife if she survives me, or all of my residuary estate if my wife does not survive me, I give, devise and bequeath to the Trustee hereinafter designated in Article XII, to be held, administered and distributed as a separate Family Trust in accordance with the terms and provisions of Article VII of this Will.
ARTICLE VII: FAMILY TRUST
The Trustee shall hold the property constituting the Family Trust as a separate and distinct trust upon the following uses and purposes:
1. If my wife, Susan P. Dunn, survives me, then commencing as of my death and continuing during her lifetime, the Trustee shall pay to any one or more of a group consisting of my wife, my children and any descendants of my children from time to time living, or apply for their benefit, as much of the net income and principal of the Family Trust, even to the extent of exhausting the principal, as the Trustee, in its sole discretion, may deem reasonable or necessary for their health, maintenance, support and education, in each case considering all of the circumstances and factors deemed pertinent by the Trustee. In exercising any discretionary powers under this subparagraph, the Trustee shall give first consideration to the support and comfort of my wife. Accordingly, I request that the Trustee allocate and pay to her or apply for her benefit so much of the net income, up to the whole thereof, and so much of the principal of the Family Trust as the Trustee may deem reasonable or necessary to enable her to maintain the standard of living to which she was accustomed during my lifetime. The Trustee may, but need not, take into account a beneficiary's other sources of income or capital. The Trustee shall have no duty to equalize any unequal distributions or to take into account differences in benefits previously received by any beneficiary in making subsequent distributions from the Family Trust. Any net income not expended hereunder shall be accumulated and added to the principal of the Family Trust, as determined by the Trustee from time to time.
2. Notwithstanding the provisions of subparagraph 1 above, the Trustee shall distribute such amounts of the principal of the Family Trust to my wife as she may request in writing; provided, however, that the aggregate value of such distributions during any one calendar year shall not exceed the greater of Five Thousand Dollars ($5,000) or five percent (5%) of the principal of the Family Trust as of the end of such year. This right shall be noncumulative from year to year and shall be exercised only during the month of December.
3. Upon the death of my wife, or upon my death if my wife does not survive me (the "termination date"), the Trustee shall divide the Family Trust, to the extent my wife has not effectively exercised the power of appointment conferred upon her under the provisions of this Article VII, into as many equal portions as there shall be children of mine living at that time or deceased and represented by then living descendants. The Trustee shall then (i) pay over and distribute one such portion to each of my then living children who has reached the age of 30 years, outright and free of trust, (ii) continue to hold one such portion as a separate trust for each of my then living children who has not reached the age of 30 years, to be administered and distributed in accordance with the provisions of Article VIII of this Will, and (iii) pay over and distribute one such portion to the then living descendants of each of my deceased children, per stirpes, outright and free of trust.
4. If none of my children nor any of their descendants are living on the termination date, as provided in the preceding subparagraph of this Article VII, then the Trustee shall pay over and distribute the Family Trust, as it is then constituted, outright and free of trust, to the ABC Charitable Foundation of _______________ for its general charitable purposes.
ARTICLE VIII: SEPARATE TRUSTS FOR CHILDREN
Each separate trust named for a child of mine, if any, under any other provision of this Will, shall be held, administered and distributed by the Trustee upon the following uses and purposes:
1. As to each separate trust held for the benefit of a child of mine who is under the age of 25 years, the Trustee shall pay to or apply for that child's benefit, from that child's separate trust only, as much of the net income and principal thereof, even to the extent of exhausting principal, as the Trustee, in its sole discretion, may deem reasonable or necessary for the health, maintenance, support and education of that child, in each case considering all the circumstances and factors deemed pertinent by the Trustee. Any net income not expended hereunder shall be accumulated and added to principal, as determined by the Trustee from time to time.
2. When a child of mine reaches the age of 25 years, the Trustee shall distribute to that child fifty percent (50%) of the then remaining balance of that child's separate trust, outright and free of trust; and, when a child of mine reaches the age of 30 years, that child's separate trust shall terminate and the Trustee shall distribute to that child one hundred percent (100%) of the then remaining balance of that child's separate trust, outright and free of trust; provided, however, that each child of mine shall have the right to defer any and all distributions and to have the same continued in trust hereunder.
3. If a child of mine dies before reaching the age of 30 years, the separate trust held for that child under this Article VIII shall terminate and the Trustee shall distribute the remaining balance thereof, as it is then constituted, to or for the benefit of any one or more of the descendants of that child, in such proportions and amounts as that child may appoint to receive the same under a Last Will and Testament. In disposing of the remaining balance of a deceased child's separate trust under this Article VIII, the Trustee shall be protected in relying upon an instrument admitted to probate in any jurisdiction as the Last Will and Testament of that child or in acting upon the assumption that the child died intestate if notice of the existence of a Last Will and Testament is not received by the Trustee within three (3) months after receiving notice of that child's death.
4. If a child of mine does not effectively exercise the power of appointment provided under the preceding subparagraph as to all or any part of that child's separate trust, then, upon the death of that child, the Trustee shall distribute the remaining balance of that child's separate trust, which is not effectively appointed, to that child's then living descendants, per stirpes, outright and free of trust. If a child of mine dies without then living descendants, then the Trustee shall divide the remaining balance, which is not effectively appointed, into as many equal shares as there are children of mine then living. The Trustee shall then (i) distribute one such share to each of my then living children who has reached the age of 30, outright and free of trust; and (ii) distribute one such share to each separate trust held hereunder for the benefit of a child of mine who is under the age of 30 years, the same to be held, administered and distributed in the same manner as provided for in this Article VIII with respect to the original property held hereunder. If none of my children are then living, then the Trustee shall distribute the remaining balance, which is not effectively appointed, to that child's estate.
ARTICLE IX: DISTRIBUTIONS TO BENEFICIARIES UNDER LEGAL AGE
Whenever, pursuant to the provisions of this Will, a distributive share of my estate, or a distributive share of the principal of any trust created hereunder, if any, is payable to a beneficiary under the age of twenty-one (21) years (other than a child of mine for whom a separate trust is established under Article VIII of this Will), then title thereto shall pass to such beneficiary but the actual distribution shall be deferred until such beneficiary reaches the age of twenty-one (21) years. In the meantime, such share shall be held by the Trustee hereinafter designated in Article XII, with all the powers granted herein, who shall pay to or apply for the benefit of such beneficiary so much of the net income and principal thereof as the Trustee, in its sole discretion, shall determine for the health, education, support and maintenance of such beneficiary. When such beneficiary reaches the age of twenty-one (21) years, the Trustee shall deliver to him or her the then remaining principal of such share, together with any accumulations of income thereof. The Trustee may make payment of any income or principal to the guardian of such beneficiary, to a custodian of such beneficiary under the Uniform Gifts to Minors Act of the State of _______________, or to any other person with whom such beneficiary shall then reside, or directly to such beneficiary, or may apply the same for his or her benefit, and the receipt from the guardian, custodian or other recipient, or evidence of the application of the income or principal for the benefit of such beneficiary, shall be a full and complete discharge and acquittance to the Trustee to the extent of such payment.
ARTICLE X: GENERAL TRUST PROVISIONS
The following provisions shall apply to each trust created under this Will, unless the context requires otherwise:
1. Payment to Minors or Incompetents. The Trustee may make payments in money or in property to or for the benefit of any beneficiary who is a minor or incompetent in any one or more of the following ways:
(a) to such minor or incompetent directly if, in the sole discretion of the Trustee, such payment is deemed advisable;
(b) to apply such payments directly for the support, maintenance, education, and medical, surgical, hospital, or other institutional care of such minor or incompetent;
(c) to the legal or natural guardian of such minor or the conservator of such incompetent;
(d) to any other person, whether or not appointed guardian of the person or conservator by any court, who shall, in fact, have the care and custody of the person of such minor or incompetent.
The Trustee shall not be under any duty to see to the application of the payments so made and the receipt by such person shall be full acquittance to the Trustee.
2. Discretionary Distributions. Except as otherwise provided herein, the Trustee may take into consideration any other sources of income and/or assets available to a beneficiary in determining whether to make discretionary distributions of net income or principal to that beneficiary; the Trustee shall have no duty to equalize present or future distributions to, or among, beneficiaries; and the good faith decision of the Trustee with respect to any discretionary distributions of net income or principal shall fully protect the Trustee and shall be binding and conclusive upon all persons having an interest in any trust created hereunder. As used throughout this Will, the education expenses of any beneficiary hereof shall be deemed to include the expenses of tuition, books, other equipment and supplies required in the course of study undertaken, and living expenses (including reasonable travel) incurred in connection with attendance at any educational institution, including private schooling at the elementary and secondary school level, colleges and universities, trade schools, graduate schools and including vocational apprenticeships, internships and residencies.
3. Spendthrift Provision. Except as otherwise provided by law, no power of appointment created hereunder shall be subject to involuntary exercise, and no interest of any beneficiary in the income or principal of any trust created hereunder shall be subject to assignment, alienation, pledge, attachment, or claims of creditors, including claims for alimony or support, until the same is distributed to such beneficiary or beneficiaries.
4. Termination of Small Trusts. If at any time the Trustee, in its sole discretion, shall determine that the continuance of any trust created under this Will is unwarranted in view of its size, the Trustee may terminate such trust and distribute the balance thereof to the beneficiary or beneficiaries for whom the trust is named.
5. Rule Against Perpetuities. Notwithstanding any other provision of this Will to the contrary, no trusts created herein 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 my death; and, upon the expiration of such period, all trusts shall terminate and the Trustee shall distribute the principal and all accrued or undistributed net income of each such trust to the beneficiary or beneficiaries for whom the trust is named.
ARTICLE XI: TRUSTEE POWERS
A. In addition to any other powers conferred upon the Trustee by law, the Trustee shall have the following powers with respect to each trust created under this Will, exercisable in the discretion of the Trustee:
1. Retain Original Property. To retain for such time as the Trustee shall deem advisable any property, real, personal or mixed, that the Trustee may receive, even though the retention of such property by reason of its character, amount, proportion to the total trust estate or otherwise would not be appropriate for the Trustee apart from this provision;
2. Sell, Mortgage or Exchange Property. To sell, exchange, alter, assign, transfer, grant options to buy, sign real estate listing agreements; to convey, pledge, hypothecate; and to mortgage, lease and sublease, even beyond the period of the trust; to partition or otherwise dispose of any property or interest therein; to do any of such acts without a court order, at public or private sale or otherwise, upon such terms and conditions, including credit, and for such consideration as the Trustee shall deem advisable; to transfer and convey the property, or any interest therein, in fee simple absolute or otherwise free of all trusts;
3. Investments. To invest and reinvest, as the Trustee shall deem advisable, in stocks of any class, bonds, debentures, notes, mortgages or other securities as well as in investment trusts, mutual funds and common trust funds, to open accounts in any type of commercial or savings bank, savings and loan association, credit union or similar organization or company, whether within or without the State of _______________ or the United States and even though such investment shall not be of the character approved by applicable law but for this provision;
4. Borrow Money. To borrow money and to assume indebtedness for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the Trustee shall deem advisable, including the powers of a corporate trustee to borrow from its own banking department, for the purpose of paying debts, taxes, administration expenses, or other charges against any trust created hereunder, or any part thereof, and to mortgage, pledge or otherwise encumber such portion of any such trust as may be required to secure such loan or loans, and to renew existing loans either as maker or as endorser;
5. Distributions in Cash or in Kind. To make distributions of assets of any trust created hereunder in cash or in kind, or partially in cash and partially in kind, in divided or undivided interests, provided shares may be composed differently and specific property may be allocated to particular distributions; to make such distribution either upon final determination or during one or more preliminary distributions, at the then current values, as the Trustee may find to be most practicable and for the best interest of the beneficiaries; and to make reasonable determinations of said values for the purpose of making distribution if there is more than one beneficiary thereof, which determination shall be binding upon the beneficiaries;
6. Vote Shares of Stock. To vote shares of stock owned by any trust created hereunder at shareholder's meetings in person or by special, limited, or general proxy, with or without power of substitution;
7. Register in Name of Nominee. To cause any of the investments that may be delivered to or acquired by the Trustee to be issued, held or registered in the name of the Trustee, in negotiable form, in the name of a nominee, or in any form in which title will pass by delivery; and any corporation or its transfer agent may presume conclusively that the nominee is the actual owner of the securities submitted for transfer;
8. Pay Expenses. To pay calls, assessments and any other sums chargeable or accruing against or on account of shares of stock, debentures or other corporate securities in the hands of the Trustee, whenever such payment may be legally enforceable against the Trustee or any property of any trust created hereunder, or if the Trustee shall deem such payments expedient and for the best interests of any such trust; to pay for repairs and other expenses incurred in the management, collection, care, administration and protection of any such trust including reasonable compensation to the Trustee and attorney's fees;
9. Litigate, Compromise or Abandon Claims. To compromise, adjust, arbitrate, sue on or defend, or otherwise deal with and settle claims in favor of or against any trust established hereunder as the Trustee may deem advisable, and the decision of the Trustee shall be conclusive between the Trustee and the beneficiaries of any such trust in the absence of fraud, bad faith or gross negligence of the Trustee;
10. Commingle Assets. To acquire, receive, hold and retain the principal of any or all trusts created hereunder undivided until division becomes necessary in order to make a distribution; to hold, manage, invest, reinvest, and account for the several shares or parts of shares by appropriate entries in the books of account maintained by the Trustee, and to allocate to each share or part of a share its proportionate part of all receipts and expenses, provided that this subparagraph shall not defer the vesting in possession of any share or part of a share of the trust;
11. Receive Additional Property. To receive additional property from any source and to administer such additional property as a portion of the appropriate trust hereunder, provided that the Trustee shall not be required to receive such additional property without Trustee consent unless such property is transferred to the Trustee by me or devised or bequeathed to the Trustee in its capacity as Trustee;
12. Employ and Compensate Agents, Etc. To employ and compensate persons deemed by the Trustee as advisable or necessary in the administration of any trust created hereunder including, but not limited to, agents, accountants, brokers, attorneys-in-fact, attorneys-at-law, real estate managers, rental agents, appraisers, and investment counsel and other professional advisers as may be required or desired in managing, protecting and investing the property of any such trust;
13. Insure. To carry such insurance coverage including, but not limited to, public liability, fire, rent, title or casualty insurance for such hazards and in such amounts, either in stock companies or in mutual companies, as the Trustee may deem advisable;
14. Determine Principal and Income. To determine, in accordance with applicable law, all questions with respect to the manner in which expenses and charges are to be borne and receipts are to be credited as between principal and income;
15. Maintain Reserves. To maintain reasonable reserves for depreciation and for amortization and obsolescence;
16. Execute Instruments. To make contracts and execute instruments as may be necessary in the exercise of the powers granted herein; and no party dealing with the Trustee need inquire as to the existence or proper exercise of any power of the Trustee, whether such power is granted directly or incorporated herein; and,
17. Perform Other Acts. To perform all other acts necessary for the proper management, investment, and distribution of the property of any trust created hereunder.
B. The Trustee may retain any business interest or enterprise, including any successor thereto by consolidation, merger, purchase of assets, or otherwise, for any period of time that the Trustee may deem advisable or necessary, even though such business or enterprise may constitute all or a large portion of the trust; to comply with the terms and provisions of any agreement restricting transfer of the interest; to participate actively in the conduct of the business or to delegate all or any part of its power to supervise and operate to such person or persons as the Trustee may select, including any associate, partner, officer or employee of the business; to execute and amend partnership agreements; to participate in any incorporation, reorganization, merger, consolidation, sale of assets, recapitalization, liquidation, or dissolution of the business, or any change in its nature, or in any buy-sell, stock restriction, or stock redemption agreements; to invest in additional stock or securities of, or make secured, unsecured, or subordinated loans to, the business, with trust funds; to hire and discharge officers and employees, to fix their compensation and define their duties; and to employ, compensate and discharge agents, attorneys, consultants, accountants and such other representatives as the Trustee may deem appropriate, including the right to employ any beneficiary, or any trustee of any trust created hereunder, in any of the foregoing capacities; to rely upon the reports of independent auditors or certified public accountants; and to deal with and act for the business in any capacity including, in the case of a corporate trustee, any banking or trust capacity, and to receive reasonable compensation therefore.
C. The Trustee may exercise every power and discretion in the management of any trust created hereunder as if the Trustee were the absolute owner thereof, and this general power shall not be limited in any way by the specific powers set forth herein; provided, however, that no beneficiary or trustee of any trust created hereunder may participate in any decision regarding payment to any person that he or she is legally obligated to support if such payment discharges such legal obligation of support.
D. Unless and to the extent that my Trustee shall elect not to qualify any property passing to my wife for the marital deduction under the Internal Revenue Code of 1986, as amended, no power or authority of the Trustee shall be exercised in any way so as to limit or reduce the maximum marital deduction allowable hereunder, and no power or authority of the Trustee shall be effective if and to the extent that the exercise of such power or authority would disqualify any gift, devise or bequest to my wife hereunder for the marital deduction in determining the estate tax liability of my estate.
E. The Trustee shall have the power to deal in every way with my estate or my wife's estate, or any trust established by either of us, including, but not limited to, the purchase from, the sale to, the exchange of property with my estate or my wife's estate, or any trust established by either of us, or the making of loans thereto, either secured or unsecured and either interest-free or at such rates of interest as the Trustee shall determine.
F. Notwithstanding any provision contained herein to the contrary, the Trustee shall have the power to merge any trust created under this Will with any other trust or trusts created by me or by my wife if the terms of any such trusts are substantially similar and held for the primary benefit of the same persons.
ARTICLE XII: APPOINTMENT OF TRUSTEE
A. I nominate and appoint ABC Trust Company, with an office in _______________, _______________, as Trustee of any of the trusts created under this Will and, reposing special trust and faith in it, direct that no bond or other security be required for the faithful performance of its duties or, if bond is required, that sureties thereon be waived.
B. If the ABC Trust Company is not in existence at the time of my death or for any reason does not accept the position of Trustee, or, having accepted and qualified as such, should resign or become incapable of acting in that capacity, then I nominate and appoint DEF Trust Company, with an office in _______________, _______________, as Trustee, and give it the same powers and authority as the original Trustee was given. I direct that no bond or other security be required for the faithful performance of its duties or, if bond is required, that sureties thereon be waived.
C. Any individual or corporation may resign as Trustee of any of the trusts created hereunder at any time by giving at least thirty (30) days written notice of such intention to do so, delivered individually or by certified mail to the other Trustee or Trustees, if any, and the individual or individuals then entitled to the income from any of the trusts created hereunder. As a matter of convenience to the beneficiaries, any Trustee of any trust created hereunder may be removed by my wife at any time after my death. Upon my wife's death, any Trustee of any trust created hereunder may be removed by a majority of the adult beneficiaries then entitled to the income from such trust at the time of such removal, including the personal representative of any such beneficiary who is then legally incompetent. Such power of removal shall be exercised by giving written notice to such Trustee and to the successor Trustee or Trustees, and, upon the acceptance of the trust by the successor Trustee or Trustees, the removed Trustee shall cease to be a Trustee of any such trust.
D. Upon the resignation or removal of any Trustee of any trust created hereunder, one or more successor Trustees shall be appointed in accordance with the provisions set forth above. If, at any time, there are no Trustees serving under any one or more of the trusts created hereunder and none of the successor Trustees nominated and appointed under this Article XII, are willing or able to serve as a Trustee, then one or more successor corporate Trustees may be appointed by my wife. If my wife is not then living or is not then able to appoint a successor corporate Trustee, then one or more successor corporate Trustees may be appointed by a majority of the beneficiaries then entitled to the income from any such trust, including the personal representative of any such beneficiary who is then legally incompetent.
E. The Trustee shall render periodically to each individual who is then an income beneficiary under any trust created hereunder, a statement of account showing all receipts, disbursements and distributions of both principal and income from such trust since the last such statement. Such accountings shall be rendered by the Trustee within ninety (90) days after receipt by the Trustee of a written request for a periodic accounting, which request shall be made by a majority of the then income beneficiaries of any of the trusts created hereunder. Unless such account is objected to in writing within sixty (60) days from the rendition thereof, such account shall be deemed approved as stated. The approval of such statements by such individuals, or by their legal guardians or representatives, shall, as to all matters and transactions stated in the account or shown by it, be final and binding on all individuals, whether or not in being, who are then or who thereafter may become entitled to share in either the income or principal of any trust created hereunder. Nevertheless, the Trustee shall be entitled to obtain a judicial settlement of its accounts at all times.
F. The Trustee may, at any time and from time to time, as it may deem advisable, in its sole discretion, for the benefit or security of any trust created hereunder, or any portion thereof, remove (or decline to remove) all or any portion of the property or the situs of administration thereof from one jurisdiction to another jurisdiction and elect that the laws of such other jurisdiction shall thereafter govern the same to such extent as may be necessary or desirable, and, thereupon, the courts of such other jurisdiction shall have the power to effectuate the purposes of the trusts created hereunder to such extent. This power of removal shall be a continuing power that may be exercised any number of times including further removal or change of location of property or situs of administration. The determination of the Trustee as to any such removal or change of situs shall be binding and conclusive on all individuals interested or claiming to be interested in any trust created hereunder.
G. No successor Trustee or Trustees shall be personally liable for any act or failure to act of a predecessor Trustee. With the approval of the individual or individuals indicated in this Article XII who may approve the accounts of the Trustee, a successor Trustee may accept the account furnished, if any, and the property delivered by or for a predecessor Trustee without liability for so doing, and such acceptance shall be a full and complete discharge to the predecessor Trustee.
H. Any individual Trustee acting hereunder may authorize, at any time and from time to time, by revocable power of attorney in writing filed with the corporate Trustee, or, if there is no corporate Trustee then serving, with all of the other Trustees then serving, any one or more of such other Trustees to perform on his or her behalf, as Trustee, all acts (or specific acts) in relation to the administration of any trust created hereunder, whether or not such act involves the exercise of discretion. Every individual or entity dealing with a Trustee who is acting under a power of attorney shall be protected in relying upon such power of attorney. The revocation of any such power of attorney shall be in writing and delivered to the corporate Trustee or to all such other Trustees, as the case may be.
I. If any corporate Trustee designated to act or at any time acting hereunder is merged with or transfers substantially all of its assets to another corporation, or is in any other manner reorganized or reincorporated, the resulting or transferee corporation shall become Trustee in place of its corporate predecessor.
J. The Trustee of any trusts created under this Will, including any successor or successors thereto, shall be entitled to reasonable compensation for services rendered hereunder. The compensation of a corporate Trustee, if any, shall be in accordance with its published schedule of fees in effect at the time the services are rendered.
ARTICLE XIII: APPOINTMENT OF EXECUTRIX
A. I nominate and appoint my wife, Susan P. Dunn, of _______________, _______________, as Executrix under this Will and, reposing special trust and faith in her, direct that no bond or other security be required for the faithful performance of her duties or, if bond is required, that sureties thereon be waived.
B. If my wife, Susan P. Dunn, predeceases me or fails to qualify as Executrix or, having qualified, should die, resign or become incapacitated, then I nominate and appoint my brother, Nathan B. Dunn, of _______________, _______________, as Executor, and give him the same powers and authority as my original Executrix was given.
C. If my Executrix under this Will shall be unable or unwilling to act in any other jurisdiction where the administration of my estate is necessary, I authorize and direct my Executrix to appoint another individual or corporation to serve in such other jurisdiction. In addition, I authorize my Executrix to pay all or any part of the debts, expenses and taxes incurred in the administration of my ancillary estate directly from the assets of my domiciliary estate.
D. My Executrix under this Will, including any successor or successors thereto, shall have the power, in her sole discretion, (i) to make such elections under the tax laws as she may deem advisable, including an election to create qualified terminable interest property for estate tax purposes and/or generation-skipping tax purposes, and (ii) to allocate the unused portion, if any, of my generation-skipping tax exemption under Section 2631 of the Internal Revenue Code of 1986, as amended, to any property with respect to which I am the transferor for generation-skipping tax purposes (whether such property passes under my Will or otherwise), in such manner as she may deem advisable, without regard to the relative interests of the beneficiaries; provided, however, that my Executrix shall not make adjustments between principal and income or in the interest of the beneficiaries to compensate for the effects of such elections and allocation. Any decision made by my Executrix with respect to the exercise of any tax election or the allocation of my generation-skipping tax exemption shall be binding and conclusive on all persons.
ARTICLE XIV: APPOINTMENT OF GUARDIANS
A. If my wife, Susan P. Dunn, does not survive me, I nominate and appoint my brother, Nathan B. Dunn, and his wife, Kitty Dunn, both of _______________, _______________, as joint guardians of the person and property of each of my minor children. If either my brother, Nathan B. Dunn, or his wife, Kitty Dunn, predeceases me or fails to serve as guardian for any reason, then the other individual so named shall serve as the sole guardian of the person and property of each of my minor children. If both my brother, Nathan B. Dunn, and his wife, Kitty Dunn, predecease me or fail to serve as guardians for any reason, then I nominate and appoint my wife's brother, William T. Jones, and his wife, Jane W. Ascot-Jones, both of ____________________, _______________, as joint guardians of the person and property of each of my minor children. I direct that no bond or other security shall be required for the faithful performance of their duties or, if bond is required, that sureties thereon be waived.
B. I authorize and empower the guardian of each minor child of mine to retain in kind any tangible personal property that is distributed to such child pursuant to any provision of this Will until such child attains majority age, provided that such child may be permitted to use the same in the meantime if such guardian deems it advisable to do so. I also direct that such guardian shall not be required to sell the same for the purpose of investing the proceeds thereof and shall not be under any liability or obligation for any loss, damage to, or depreciation in value of any such tangible personal property that is retained in kind.
C. I request and direct that the guardian of the person of any minor child of mine shall see to it that such child is accessible to and has reasonable visitation with members of my immediate family and my wife's immediate family, if so requested by any such child or by the members of either of our families.
ARTICLE XV: SURVIVORSHIP PRESUMPTION
A. If my wife, Susan P. Dunn, and I die simultaneously or under such circumstances that make it difficult to determine who survived whom, it shall be deemed for all purposes of this Will that my wife did survive me.
ARTICLE XVI: USE OF WORDS AND CAPTIONS
Wherever the context so requires, words used herein in one gender shall be applicable to all genders, words used in the singular shall include the plural, and words used in the plural shall include the singular. The use of captions are for reference only and are not meant to govern or affect the interpretation of any part of this Will.
ARTICLE XVII: DETERMINATION OF CHILDREN AND DESCENDANTS
As used in this Will, the words "children", "descendants" and "issue" shall include children in gestation and legally adopted individuals and the descendants of legally adopted individuals, provided such adoption took place at the time the individual adopted was a minor in the jurisdiction in which the adoption took place.
IN WITNESS WHEREOF, I have subscribed my name to this, my Last Will and Testament, consisting of _____ pages; and, for purposes of identification, I have initialed each preceding page in the presence of two persons witnessing at my request, this ______ day of ________________, 2012.
Signed, sealed, published and declared by the above named George W. Dunn, as and for his Last Will and Testament, in the presence of us, who, at his request, in his presence and in the presence of each other have hereunto subscribed our names as witnesses on the day and year last above written.
____________________________________ of __________________________________
____________________________________ of __________________________________
Town of __________, this __________ day of ________________, 2012.
We, the undersigned, being duly sworn, do depose and say that we witnessed the within Will of the within named Testator, George W. Dunn; that we subscribed the same in his presence, in the presence of each other, and at his request; that the said George W. Dunn at the time of signing said Will appeared to us to be of full age and of sound and disposing mind and memory, and competent to make a testamentary disposition of real and personal property; that he voluntarily signed said Will and declared the same to be his Last Will and Testament in our presence; and that this affidavit is made at the request of the said George W. Dunn.
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