IRREVOCABLE LIFE INSURANCE TRUST (FOR SURVIVORSHIP LIFE/SECOND-TO-DIE POLICY)

Transcription

1 IRREVOCABLE LIFE INSURANCE TRUST (FOR SURVIVORSHIP LIFE/SECOND-TO-DIE POLICY) FOR FINANCIAL PROFESSIONAL USE ONLY-NOT FOR PUBLIC DISTRIBUTION. Specimen documents are made available for educational purposes only. This specimen form may be given to a client s attorney for consideration as a sample document, when requested. This specimen form shall not be given to a client. This document should not be used as drafted. It has not been adapted to the specific circumstances or objectives of any individual client, nor has it been prepared to meet the legal requirements of any particular state. Clients should be advised to seek legal counsel when entering into any transaction and in the preparation of all legal documents. All formalities required under applicable local law should be observed. ***** IRREVOCABLE TRUST AGREEMENT This irrevocable trust agreement is made this (day) of (month), (year), by and between (name of grantor), hereinafter referred to as "Grantor," and (name of trustee), hereinafter referred to as "Trustee." "Grantor's spouse" shall refer to (name of spouse). Grantor irrevocably transfers to Trustee the assets listed in Exhibit A attached to and made a part of this agreement, hereinafter sometimes called the "Trust Estate," to be held and administered by Trustee and its successors and assigns under the terms of this agreement, along with any other property that may be added to this trust from time to time. ARTICLE I USE OF TRUST ESTATE A. During the Lifetimes of Grantor and/or Grantor's Spouse 1. Trustee shall accumulate all trust income during the joint lifetimes of Grantor and Grantor's spouse, and during the lifetime of the survivor of them. 2. Within fifteen (15) days after the receipt of any property placed in this trust, Trustee shall give written notice to each adult child of Grantor or the guardian of each minor or Sample Document - Page 1 of 9

2 incapacitated child of Grantor, of such addition to the trust, and describe the property received. For a period of forty-five (45) days from the date of notification, the child or guardian may demand in writing to receive a share of the property equal to one (1) divided by the number of Grantor's then living children, multiplied by the total value of such addition to the trust received by Trustee. For purposes of this Article I.A.2., "the receipt of any property placed in this trust" shall mean any cash or other property, including life insurance policies or interests in said policies, which are transferred to Trustee to be held as part of the trust. 3. Notwithstanding the preceding provisions of this Article I, any power of withdrawal held by a child of Grantor shall terminate in any calendar year only to the extent of the greater of $5,000 or five percent (5%) of the trust property subject to the power(s), which property shall include that added to the trust after the creation of the power(s). The termination or partial termination of a power shall occur on the same date as the termination or partial termination of any new power created for the child in that year. If no new power is created, the power(s) will terminate on December 31 of said year, and each power then in existence shall terminate pro rata based on the total amount subject to the powers held by the child. 4. The power of withdrawal shall expire with respect to any child who is then subject to a bankruptcy proceeding. 5. Trustee may satisfy the exercise of a power of withdrawal by distributing to the child or guardian cash or other property of the trust, including life insurance policies or interests in said policies. B. At the Death of the Survivor of Grantor and Grantor's Spouse 1. Upon the death of the survivor of Grantor and Grantor's Spouse, Trustee shall have the power to pay, or apply for the benefit of, any child or children of Grantor such amounts of trust income or principal as Trustee, in its sole discretion, deems necessary for the health, education, maintenance and support of said child or children. Any such distribution shall not be charged against the share of principal to which such child is ultimately entitled under this trust. Trustee's power hereunder is subordinate to any powers of withdrawal under Article I.A. above. 2. Upon the death of the survivor of Grantor and Grantor's spouse, the remaining principal and any income shall be divided into as many equal shares as Grantor had children. Shares shall be distributed to the living child or children of Grantor who have attained the age of twenty-five (25) years and who is/are not mentally or physically incapacitated. In its discretion, Trustee may distribute a trust share to the guardian or person having the Sample Document - Page 2 of 9

3 care or custody of a child who is incapacitated or under the age twenty-five (25) if to do otherwise would subject the trust share to an undue administrative burden or cost. If a child of Grantor is deceased at the time of distribution, his or her share shall be distributed equally to the deceased child's lineal descendants; or, if there is none, the distribution shall be per stirpes among Grantor's living children. 3. If all beneficiaries described in Article I.B.2. above die prior to the total distribution of their shares in the trust, then the trust shall be divided into two (2) equal parts and one equal part distributed to the persons living who, if Grantor had died at that time, would be Grantor's next of kin under the then existing intestacy laws of the State of (name), in the proportions prescribed by such laws; and the other part distributed to the persons living who, if Grantor's spouse had died at that time, would have been the spouse's next of kin under the then existing intestacy laws of the State of (name), in the proportions prescribed by such laws. ARTICLE II MINORS AND DISABLED CHILDREN Trustee shall administer as one trust the trust shares of minor or physically or mentally incapacitated children of Grantor and Grantor's spouse as set forth in Article I.B.2. Trustee may distribute sums for this purpose from principal and income. Payments may be made directly to the children or to any guardian or other person having the care or custody of the children. Grantor intends that the above payments be made in the sole discretion of Trustee and in such proportions and to such children as Trustee deems necessary to provide for their health, education, maintenance and support, even if such payments are unequal among the children. Income and principal not distributed in Trustee's discretion shall be retained by Trustee and paid to the children upon reaching the age specified in Article I.B.2., or upon the termination of physical or mental incapacity. ARTICLE III LIFE INSURANCE POLICIES A. Trustee shall name itself owner and beneficiary of any life insurance policies transferred to or purchased by the trust. This trust agreement also shall apply to any converted or reissued life insurance policy received by Trustee in exchange for a policy forming part of the Trust Estate. B. Trustee has no duty to use trust income or principal to purchase life insurance policies, or to pay premiums to keep life insurance in force. Trustee may, in its sole discretion, pay premiums on policies owned by the trust. Trustee has no obligation with respect to any policy loans Grantor may have incurred on said policies prior to their transfer to the trust. Sample Document - Page 3 of 9

4 C. Payment of the life insurance proceeds by an insurance company to the beneficiary designated in the policy shall be a full discharge of said insurance company with respect to such policy, and such insurance company shall not be responsible for the performance of Trustee's duties under this trust agreement. ARTICLE IV TRUST BENEFITS ARE NONASSIGNABLE Neither the principal nor the income of any trust created by this agreement shall be liable for the debts of any beneficiary, and no beneficiary shall have the power to sell, assign, encumber, or anticipate in any manner his or her interest in the trust, or the income of the trust, prior to its actual distribution to the beneficiary. ARTICLE V POWERS OF TRUSTEE Trustee shall have the following powers and authorizations in addition to any other powers and authorizations granted by law or elsewhere in this trust agreement: A. To retain cash or other property transferred to the trust, whether or not such property is authorized for investment. B. To make bona fide loans to any person, including a trust beneficiary, or to the estate of Grantor or Grantor's spouse. C. To sell, exchange, mortgage or lease any assets of the trust for a term ending within or extending beyond the term of the trust. D. To invest in any securities and properties it deems advisable, including, but not limited to, common stock, preferred stock, mutual funds, and corporate and government debt instruments. E. To exercise all rights of ownership over any property held in trust, and settle, compromise or submit for arbitration all claims due from or to the trust. F. To borrow money for any purpose incidental to the administration of the trust for the protection of trust assets, and to mortgage or pledge trust assets for payment. Sample Document - Page 4 of 9

5 G. To divide or distribute the trust whenever required, in whole or in part, in cash, securities or other property, or undivided interests. In making such a division or distribution, the judgment of the Trustee concerning its suitability as a trust investment and its valuation shall be binding on all parties. H. To purchase at fair market value (as of the date of purchase) assets from the estates of Grantor and Grantor's spouse, if, in Trustee's sole discretion, such purchases are in the best interests of the trust beneficiaries. I. To receive reasonable compensation for its services; to pay all reasonable expenses and charges of the trust; to allocate expenses, charges and credits between principal and income in accordance with applicable trust accounting rules, and to charge Trustee's customary annual fee to income. J. To employ brokers, bankers, custodians, investment counsel, attorneys, and other agents and to delegate to them such duties as Trustee deems proper, without liability for error or omission of such person retained with reasonable care and prudence. K. If the Trust Estate includes business interests formerly owned by Grantor or Grantor's spouse, Trustee is authorized to exercise all powers with respect to such business interests, as Trustee, in its sole discretion, deems advisable. L. If Grantor creates another trust or trusts, which trust provisions or trust shares are substantially the same as those in this trust, then, after the deaths of Grantor and Grantor's spouse, Trustee in its sole discretion may merge this trust with such other trust or trusts. M. If Trustee determines that continuation of the trust would be contrary to the best interests of the beneficiaries by reason of legislation, unforeseen circumstances, or because the value of the trust assets has reached such a level that, in Trustee's judgment, the continued administration of the trust would be burdensome and uneconomical, Trustee may terminate the trust. The principal and undistributed income of the terminated trust shall be distributed to those persons entitled to receive the trust income or shall be accumulated for their benefit. N. To execute and deliver all written instruments necessary or appropriate for the exercise of any Trustee power. O. To insure the life of any individual, or the joint lives of any individuals, in whom any trust beneficiary has an insurable interest. Sample Document - Page 5 of 9

6 ARTICLE VI TRUST ADDITIONS With the approval of Trustee, Grantor, Grantor's Spouse, or any other person may transfer cash, securities, life insurance policies, or other property to the trust by lifetime gift or testamentary transfer. All such additions shall be subject to the terms and conditions of this trust agreement. ARTICLE VII IRREVOCABLE TRUST This trust is irrevocable. Grantor relinquishes forever any power to terminate, revoke, alter, or amend the trust, or to exercise any dominion and control over any property transferred to the trust. ARTICLE VIII SUCCESSOR TRUSTEE A. Upon the death of the survivor of Grantor and Grantor's spouse, (name of Trustee) shall cease to serve as Trustee of this trust. At that time, (name of successor trustee) shall become successor trustee. The successor trustee shall have all the powers, rights, and duties of the original trustee. B. In addition, following the death of the survivor of Grantor and Grantor's spouse, a majority of the income beneficiaries of the trust may remove the trustee and substitute another trustee. The removal and appointment of another successor trustee shall be made in writing. C. trustee may resign at any time. The resignation shall not be effective until a successor trustee is appointed. D. At no time and in no event shall Grantor or Grantor's spouse be appointed as trustee. ARTICLE IX TRUST SITUS The State (or Commonwealth) of (name) is designated as the situs of the trust created under this agreement, and all questions pertaining to the validity and construction of this trust instrument or the administration of such trust shall be determined in accordance with the laws of (name) regardless of the jurisdiction in which this trust may at any time be administered. Sample Document - Page 6 of 9

7 ARTICLE X TRUSTEE'S FEES The fees of the Trustee shall be (state amount or specify how determined). ARTICLE XI CONSTRUCTION OF TERMS A. The terms "child," "children," "issue," and other similar terms shall refer both to natural children and their descendants, and to children by adoption and their descendants. [The draftsman should clarify how stepchildren will be treated if pertinent to the Grantor's family situation.] B. The term "Trustee" and any pronoun used to indicate the Trustee, or any beneficiary, shall be deemed to apply to one or more than one person and/or corporation or entity and to the masculine, feminine and/or neuter genders as the case may be. ARTICLE XII TRUSTEE'S BOND Grantor directs that any fiduciary acting under the trust created by this agreement shall not be required to enter bond or other security. ARTICLE XIII ENTIRE AGREEMENT This agreement represents the final and entire agreement between the parties, and supersedes all prior or contemporaneous agreements, express or implied, written or unwritten. ARTICLE XIV SEVERABILITY OF PROVISIONS If any part of this agreement is held to be invalid or otherwise unenforceable, the remainder of the agreement shall remain in force and effect to the full extent permitted by law. IN WITNESS WHEREOF, Grantor and Trustee, by its duly authorized officer, have executed this agreement on the date first written above. GRANTOR Sample Document - Page 7 of 9

8 (typed name of Grantor) TRUSTEE (typed name of Trustee) EXHIBIT A [Here list and describe assets transferred to the trust, including life insurance policies.] ***** Sample Document - Page 8 of 9

9 This information is provided by American General Life Insurance Company (AGL) and The United States Life Insurance Company in the City of New York (US Life), members of American International Group, Inc. (AIG). All companies mentioned, their employees, financial professionals, and other representatives, are not authorized to give legal, tax, or accounting, advice, including the drafting or execution of any legal document. Applicable laws and regulations are complex and subject to change. Any tax statements in this material are not intended to suggest the avoidance of U.S. federal, state or local tax penalties. AGL and US Life shall not be liable for any loss or damage caused by the use of, or reliance on, the tax, accounting, legal, investment or financial items contained in this material. FOR FINANCIAL PROFESSIONAL USE ONLY-NOT FOR PUBLIC DISTRIBUTION All rights reserved. Sample Document - Page 9 of 9