Family (Bypass) Trust

LAST WILL AND TESTAMENT 
OF
                                                                              

     I,                                          , of                            County,                        (state), publish and declare this to be my Will and revoke all former Wills and Codicils executed by me.

ARTICLE I
IDENTIFICATION OF FAMILY

     My spouse's name, and the person referred to herein whenever the term "spouse" is used, is                                          . My children/child now living are/is                                                                                   . All references herein to "children" or “child” shall include the above-named children or child, as well as all children hereafter born to or adopted by me.

ARTICLE II
DEBTS AND EXPENSES

     My executor shall pay my debts, costs of administration and expenses of last illness and burial from my estate; provided, however, that my executor shall not accelerate and prepay the principal balance remaining on any mortgage, installment purchase contract, or other evidence of indebtedness secured by a security interest upon any property or interest in property I own, unless my executor, in its sole discretion, determines that it is in the best interests of my beneficiaries to do so.

ARTICLE III
HOMESTEAD

     If my spouse survives me by sixty (60) days, I give outright to my spouse all of my interests in any homestead and any seasonal residence that I may own at the time of my death together with any insurance policies thereon. I include all land adjacent thereto and used as a part thereof irrespective of area. If my spouse does not survive me by sixty (60) days, this devise shall lapse and the property shall be distributed as part of my residuary estate.

ARTICLE IV
PERSONAL ITEMS

     I bequeath all of my clothing, jewelry, automobiles, household furniture and furnishings, recreational equipment, and all other personal effects used by me about my person or home, to my spouse, if my spouse survives me by sixty (60) days. If my spouse does not survive me by sixty (60) days, the property described in this Article shall be either distributed with substantial equality to my living children or sold and the proceeds distributed with the residue of my estate, as my executor shall determine.

ARTICLE V
BEQUEST TO SPOUSE

     If my spouse survives me by sixty (60) days, I direct my executor to set aside assets of my estate in cash or in kind equal to the maximum marital deduction allowable to my estate, less the aggregate amount of marital deduction, if any, allowable to my estate by reason of interests in property passing or that have passed to my spouse otherwise than by the terms of this Article; provided, however, that the amount of such assets shall be reduced by the amount, if any, required to increase my taxable estate to the maximum amount that, considering the unified credit and the state death tax credit allowable to my estate (except to the extent that state death taxes are thereby increased), will result in no federal estate tax payable by reason of my death. For the purpose of establishing the sum disposed of by this Article, the values finally determined in the federal estate tax proceeding relating to my estate shall be used. The assets so set aside shall be valued at their respective values on the date or dates of distribution. Any asset that does not qualify for the marital deduction shall be excluded.
     I bequeath to my spouse the assets so set aside. It is my intention that this bequest shall qualify for the federal estate tax marital deduction. I direct that the provisions of this Will be construed and this bequest be administered to so qualify. I realize that depending on the circumstances and the tax laws existing at the date of my death that no assets may pass pursuant to this Article.
     If my spouse or my spouse’s executor or administrator disclaims any part or all of this bequest, I direct that the disclaimed property shall be added to the FAMILY TRUST and shall be administered in accordance with all of the provisions applying thereto.

ARTICLE VI
PAYMENT OF TAXES

     I direct that all inheritance, estate, succession, or other similar taxes (excluding, however, any generation-skipping taxes) against my taxable estate or the recipients thereof, including any taxes arising from the transfer or receipt of assets that are not part of my probate estate, shall be paid from the residue of my estate. Such taxes shall not be charged against the respective beneficiaries and my executor shall not seek reimbursement from anyone therefore, except to the extent that my executor has a right by reason of Sections 2207 or 2207A of the Internal Revenue Code to seek contribution or reimbursement for taxes resulting from the inclusion in my estate of property over which I have a power of appointment or in which I have a qualified income interest for life.

ARTICLE VII
FAMILY TRUST

     I bequeath the residue of my estate (except any property over which I have a power of appointment), which shall be called the "FAMILY TRUST," to the trustee hereinafter named, to be administered as follows:

1. During the life of my spouse:

   1. My trustee shall pay the net income to my spouse in convenient installments.

   2. In addition to the net income, my trustee shall pay to my spouse such sums from the principal as my trustee deems advisable for my spouse's health, education, support and maintenance.

   3. My trustee shall pay to any child of mine or descendant of any deceased child of mine such sums from the principal as my trustee deems advisable for his or her health, education, support, and maintenance. Any such payments need not be equal between or among my children and descendants of deceased children either as individuals or as separate groups.

2. At the death of my spouse or on distribution of my estate from probate if my spouse predeceases me or does not survive me by sixty (60) days, the trustee shall divide the FAMILY TRUST, together with property received from any other source, into equal shares so as to provide one (1) share for each then living child of mine and one (1) share for the then living descendants, collectively, of each deceased child of mine. The shares shall be administered as follows:

   1. With respect to each share provided for a child of mine then living:

      1. The trustee shall pay to each child such sums from the income or principal of that child's share as the trustee deems advisable for his or her health, education, support, and maintenance. Any income not distributed shall be added to the principal.

      2. As each of my children attains the age of twenty-five (25) years, the trustee shall distribute to him or her one-half (1/2) in value of the principal and accumulated income of his or her share then being held in trust. As each of my children attains the age of thirty (30) years, the trustee shall distribute to him or her the balance of the principal and accumulated income then being held in his or her share and the trust as to that share shall terminate. If a child of mine should die before receiving full distribution of his or her share, the remainder of that child's share shall be distributed per stirpes to his or her descendants, if any, or if none, per stirpes to my descendants, limited only by the provisions of Paragraph C of this Article. Each portion distributional to a descendant of mine for whom a share of this FAMILY TRUST is being held shall be distributed to the trustee of that share and become a part thereof.

   2. With respect to each share provided for the then living descendants, collectively, of a deceased child of mine, the trustee shall distribute that share per stirpes to the descendants of said deceased child, limited only by the provisions of Paragraph C of this Article.

3. If any share becomes distributional to a beneficiary who has not attained the age of twenty-five (25) years, the trustee shall retain possession of such share for the period that beneficiary is under the age of twenty-five (25) years. The trustee shall pay to him or her such sums from the income or principal of that share as it deems advisable for his or her health, education, support, and maintenance. Any income not distributed shall be added to the principal. When the beneficiary attains the age of twenty-five (25) years, the trustee shall distribute to him or her the balance of the principal and accumulated income then being held in his or her share. If a beneficiary should die before attaining the age of twenty-five (25) years, the balance of his or her share shall be distributed to the appointee or appointees, including his or her estate, as such beneficiary may select, in the manner and proportions as he or she may direct by his or her Will made at any time making specific reference to this power. This general testamentary power of appointment is granted to such beneficiary and shall be exercisable by him or her alone and in all events. Any of the principal and accumulated income over which such beneficiary does not effectively exercise his or her general power of appointment shall be distributed per stirpes to his or her descendants, if any, or if none, per stirpes to his or her then living brothers and sisters and the then living descendants, collectively, of each deceased brother and sister, if any, or if none, per stirpes to my descendants, limited only by the provisions contained in this paragraph. Each portion distributional to a person for whom a share of this FAMILY TRUST is being held shall be distributed to the trustee of that share and become a part thereof.

4. Whenever income or principal is to be used for the benefit of a person under the age of eighteen (18) years or a person who in the judgment of the trustee is incapable of managing his or her own affairs, the trustee may make payment of such property in any or all of the following ways:

   1. By paying such property to the parent, guardian, conservator, or other person having the care and control of such person under the age of eighteen (18) years for his or her benefit or to any authorized person as custodian for him or her under the State Uniform Transfers to Minors Act or equivalent legislation in this state.

   2. By paying such property to the guardian, conservator or other person having the care and control of any incapacitated person.

   3. By paying directly to any such beneficiary such sums as the trustee may deem advisable as an allowance.

   4. By expending such property in such other manner as the trustee, in its discretion, believes will benefit any such beneficiary.

5. No beneficiary shall have power to sell, assign, transfer, encumber, or in any manner to anticipate or dispose of any interest created by this Article. The right to principal and income created by this Article shall not be liable to be reached in any manner by the creditors of, or holders of judgments against, any beneficiary.

6. Should the circumstances of my death and my spouse's death result in the establishment of two (2) substantially identical trusts, my trustee is authorized to combine the two (2) trusts and administer them as though they had been one (1) trust from the inception.

7. If the trustee determines that a trust has become reduced to the point that the continued administration of it has become unduly expensive and not in the best interests of the beneficiaries, the trustee shall distribute the balance of the principal and accumulated income to the beneficiaries who are then entitled to receive the income or to have the income accumulated for their benefit. This authority to terminate shall extend to individual trust assets as well as to the trust as a whole if the trustee shall determine that continued administration of the individual trust asset is unduly burdensome or expensive to administer.

ARTICLE VIII
IMMEDIATE DISTRIBUTION;
RULE AGAINST PERPETUITIES

     If a part of my estate would upon receipt by a trustee be distributional immediately to a beneficiary, notwithstanding any provision to the contrary, I direct that such part of my estate shall be distributed directly by my executor to said beneficiary.
     Each trust created under this Will shall in any event terminate twenty-one (21) years after the death of the last surviving member of the group consisting of my spouse and descendants who shall be living at the time of my death. On such termination, the trustee shall distribute the balance of the principal and accumulated income per stirpes to the beneficiaries then entitled to receive the income or to have the income accumulated for their benefit.

ARTICLE IX
REMOTE CONTINGENCY DISTRIBUTION

     If, at any time before final distribution of any trust created hereunder, there shall not be in existence anyone who is, or might become, entitled to receive benefits under the foregoing provisions of this Will, then any portion of the trust estate then remaining shall be paid over and distributed outright in such proportions and to those heirs of mine as shall be determined as though I had died intestate, a resident of                         (state).

ARTICLE X
APPOINTMENT, RESIGNATION AND SUCCESSION OF FIDUCIARIES

     I nominate my spouse,                                          , as executor and trustee. If my spouse should fail or cease to act as executor or trustee, I direct that                                          shall serve.
     Any trustee hereunder may resign by giving written notice to the beneficiaries to whom income could then be distributed. Such resignation shall take effect on such date, not earlier than thirty (30) days after the date of delivery of such written resignation, as shall be specified in such instrument of resignation unless an earlier effective date shall be agreed to by the income beneficiaries. Upon such resignation, the resigning trustee shall be relieved of any further duties and responsibilities and shall not be liable or responsible for the acts of any successor trustee.

     If the trustee resigns or for any reason ceases to serve as trustee, then the adult beneficiaries to whom income could then be distributed, together with the adult beneficiaries to whom principal would be distributed if the trust were then to terminate, may by majority action in writing appoint a successor trustee. If agreement of a majority of the beneficiaries cannot be obtained within sixty (60) days, a successor trustee shall be appointed by the court having general jurisdiction of the trust.
     Any successor trustee appointed hereunder shall have all the rights, powers, authorities and discretion herein conferred upon the original trustee. No successor trustee shall be obliged to inquire into or be in any way accountable for the previous administration of the trust property.
     No bond will be required of any executor or trustee appointed pursuant to this Will.
     To save expense and simplify procedure in my estate and trust estate, I direct that no guardian ad litem or similar proceedings shall be required. Any fiduciary shall be released and relieved from any further responsibility or liability for its acts occurring during a period for which it has received the written approval of the adult beneficiaries. The parent, legal guardian, or conservator of a beneficiary may represent such beneficiary. Any notice to or action by such parent, legal guardian, or conservator shall be binding on such beneficiary, and have the same effect as if delivered to or executed by an adult or competent beneficiary.

ARTICLE XI
CONCERNING THE EXECUTORS AND TRUSTEES

     I authorize my executor to file joint income or gift tax returns with my spouse, and in its discretion to pay any part or all of the taxes, interest, or penalties in connection with any such returns. The decision of my executor in this regard shall be conclusive. When a choice is available as to whether deductions shall be taken for income or estate tax purposes, the decision of my executor shall be conclusive. No adjustment of income and principal accounts need be made.
     I authorize my executor and trustee, in their discretion, to take advantage of any alternate valuation provisions or any deferral provisions under the federal estate tax or state inheritance and estate taxes or similar succession taxes, including but not limited to Sections 2032, 2032A and 6166 of the Internal Revenue Code and their successor provisions. In addition, I authorize my executor or trustee, as the case may be, in their discretion to allocate any unused portion of my generation-skipping tax exemption under Section 2631 of the Internal Revenue Code and its successor provisions to any property with respect to which I am the transferor for generation-skipping tax purposes (irrespective of whether such property passes under this Will) in such manner as my executor or trustee deems advisable, in each case without regard to the relative interests of the beneficiaries; however, my executor or trustee, as the case may be, shall not make adjustments between principal and income, or in the interests of the beneficiaries, to compensate for the effects of such elections and allocation. Any decision made by my executor or trustee, as the case may be, 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.
     I hereby authorize my executor or trustee, as the case may be, to make transfers to the custodian of any beneficiary under the age of twenty-one (21) years for the benefit of said beneficiary under the State Uniform Transfers to Minors Act or equivalent legislation in                         (state).

     My executor shall have all other powers granted by me to my trustee in Article XIII and by the State Probate Code to fiduciaries. In addition, I empower my executor, without order of court and without notice to anyone to settle, compromise or pay any claim, including taxes, asserted in favor of or against my estate; and to permit any of the beneficiaries hereunder to enjoy the use in kind, during the administration of my estate, of any tangible personal property without liability on the part of the beneficiary for unintentional, non-negligent injury, consumption or loss of the property so used.

ARTICLE XII
WAIVER OF COURT REPORTING

     I expressly waive any requirement that the trustee of any trust created by this Will qualify or file reports, either interim or final, with any court; provided, however, that the trustee or any beneficiary may invoke the jurisdiction of any proper court at any time it is deemed advisable. The trustee shall, at least annually, make an accounting to all beneficiaries, and the approval by a beneficiary, or his or her parent, legal guardian, or conservator, shall release and relieve the trustee from further responsibility or liability with respect to that beneficiary, and his or her heirs and assigns, for its actions during the period covered by the accounting.

ARTICLE XIII
POWERS OF TRUSTEE

     The trustee shall have all powers necessary for the proper administration of the trusts created by this Will that shall be in addition to those powers provided by the State Probate Code. In extension but not in limitation of any power otherwise possessed by the trustee, it shall have, without the necessity of notice to or approval of any court or person, the following powers:

1. To retain any or all of the securities and properties transferred to or acquired by the trustee hereunder, so long as the trustee may deem such retention advisable or expedient, regardless of whether said securities and properties are of the kind and nature authorized by law for investment.

2. To invest and reinvest the available funds of the trust estate in, or exchange trust assets for, such securities and properties as the trustee deems advisable
   regardless of whether such securities and properties are of the kind and class authorized by law. Without in any way limiting the generality of the foregoing, the trustee may invest or reinvest the available funds in, or exchange trust assets for, common and preferred corporate stocks, bonds, notes, debentures or other evidences of indebtedness or fractional interests in the same, interests in any kind of an investment trust or any beneficial participation units in any common trust fund maintained and operated by any corporate trustee acting hereunder, or in any other kind of real or personal property.

3. To retain cash funds not invested for such reasonable periods of time as the trustee shall determine; to deposit cash funds as a general deposit in a special account in the deposit department of any corporate trustee acting hereunder without liability for interest thereon.

4. To sell, grant options to buy, convey, transfer, assign, exchange, lease, mortgage, pledge or otherwise dispose of any or all of the properties of my trust estate, including real property, at such prices, on such terms, to such persons, in such portions, and in such manner as the trustee may in each case deem proper and advisable, and for terms extending beyond the administration of the trusts herein created.

5. To vote all stocks and exercise all rights incident to the ownership of stocks, bonds, or other securities or properties held in the trust estate and to issue proxies to vote such stocks and to exercise such rights; to enter into voting trusts for such period and upon such terms as the trustee may determine; to sell or exercise any and all subscription rights and stock options; to sell or retain any and all stock dividends; to consent to or join in any plan of reorganization, readjustment, merger, consolidation or liquidation in respect to any corporation whose stocks, bonds or other securities are a part of the trust estate, including becoming a member of any stockholders’ or bondholders’ committee; to accept and hold any new securities issued pursuant to any plan of reorganization, readjustment, merger, consolidation or liquidation; to pay any assessments on stocks or securities or to relinquish the same, and to otherwise exercise any and all rights and powers and deal in and with the securities and properties in the same manner and to the same extent as any individual owner and holder thereof might do.

6. To hold securities and other properties in bearer form or in the name of a nominee or nominees without disclosing any fiduciary relationship; provided, however, that on the books and records of the fiduciary said securities and properties shall constantly be shown to be a part of the fiduciary estate, and no such registration or holding by the fiduciary shall relieve my trustee from liability for the safe custody and proper disposition of such securities and properties in accordance with the terms and provisions hereof.

7. To employ such agents, experts and counsel as the trustee shall deem advisable, and to delegate discretionary powers to and rely upon such information or advice furnished by such agents, experts or counsel.

8. To collect, receive and receipt for any principal or income, and to defend against, prosecute, adjust, compromise and settle debts, expenses, charges, taxes or claims by or against the trust estate, or any part thereof, or upon or relating to any of the assets thereof.

9. To borrow money from the commercial department of the corporate trustee, or elsewhere, for the purpose of paying taxes or for any other purpose incidental to the administration of the trust estate, or for the protection and preservation of the assets thereof, and to mortgage or pledge any assets of the trust estate for the payment thereof.

10. To receive from any source additions to the assets of the trust estate acceptable to the trustee and to hold the same as a part thereof.

11. To purchase or retain and pay premiums on life insurance polices on the life of a beneficiary of the FAMILY TRUST and to exercise all incidents of ownership; provided, however, that only the corporate trustee, if any, shall exercise this power as to any policies where the insured is a trustee or co-trustee.

12. To make division or distribution, whenever required by this Will, in whole or in part in money, securities or other property, and in undivided interests therein, and to continue to hold any remaining undivided interest in any trust hereunder. In any division or distribution, the judgment of the trustee concerning the propriety thereof and except where a standard or method of valuation is otherwise prescribed by this Will or by law, the valuation of the properties and securities concerned, shall be binding and conclusive on all persons in interest.

13. To determine what is principal and what is income of any trust and in the trustee's discretion, but as a fiduciary, to allocate or apportion receipts and expenses between principal and income, except that all premiums shall be charged and all discounts credited against or to the principal, as the case may be, and not against or to income, and except, further, that all dividends paid in stock of the paying corporation shall be considered principal.

14. To hold the assets of the several trusts, shares or portions of trust created by this Will as a single fund for joint investment and management, without the need for physical segregation, dividing the income proportionately among them.
    Segregation of the various trusts, shares or portions need only be made on the books of the trustee for accounting purposes.

15. To receive on behalf of the trustee from income or principal, or both, reasonable compensation for trustee's services under this Will, and to pay all reasonable expenses and charges of the trust or trusts.

16. To merge, without court action, the FAMILY TRUST into or with any other share or trust created under this or any other document, wherein the beneficiaries, distribution of income and principal, ultimate method of distribution, and all other administrative terms and provisions are substantially similar. The trustee may select the trust instrument under which the single resulting trust shall be administered; provided, however, that the trust instrument having the earliest effective rule against perpetuities savings clause shall be the one selected. The decision of the trustee in this regard shall be conclusive on all parties in interest.

17. To change the situs of the trust estate.

ARTICLE XIV
GUARDIANS OF MINOR CHILDREN

     Should it become necessary to appoint a guardian of the person of a minor child, it is my desire that                                       be appointed to serve in that capacity. If                                       shall fail or decline to serve in such capacity for any reason, it is my desire that                                       be appointed guardian.

ARTICLE XV
SURVIVORSHIP PRESUMPTION

     If there is not sufficient evidence that my spouse and I have died other than simultaneously, I direct that my spouse shall be deemed to have survived or predeceased me.

ARTICLE XVI
DISCLAIMER

     If I survive my spouse, but die within the time period set forth in Section 2518 of the Internal Revenue Code for the making of a qualified disclaimer, I authorize my executor to disclaim so much of the property passing to me from my spouse that will reduce the total amount of death taxes payable in my estate and my spouse's estate.

ARTICLE XVII
DEFINITIONS

The provisions herein contained shall be supplemented by, and when necessary shall be subject to, the following:

1. The singular expression "executor," "trustee," "descendant," "beneficiary," or "person," and any other singular words, shall include the plural, and plural expressions shall include the singular, and the context of this instrument shall be read, accordingly, when the facts require it.

2. "Trustee" shall be taken to refer to the trustee or trustees for the time being in office and shall include a successor trustee or trustees, whether so expressed or not. All provisions herein made with respect to the rights, powers, duties and obligations of the trustees shall extend to and bind any and all successor trustees.

3. The feminine, masculine or neuter pronoun shall be taken to refer to the person or persons intended regardless of number or gender, and a singular pronoun may be taken to express a plural pronoun and a plural pronoun may be taken to express a singular pronoun when the facts require it.

4. All adopted persons who were adopted at a time they were less than eighteen (18) years of age shall have the same status and rights as natural born persons under this Will and all provisions thereof.

5. References herein to provisions of the Internal Revenue Code shall include substantially similar provisions of any subsequent enactment, provided the overall dispositive arrangement is not substantially changed as a result thereof.

     I subscribe this my Will on the          day of                                    ,            , before two (2) witnesses, and declare this instrument, consisting of                        (        ) pages, including                            page, to be my Will.

     Dated this                day of                                     ,              .

ATTESTATION CLAUSE

     The foregoing instrument was signed by                                               (or signed in the name of                                              , in the Testator's presence and at his/her direction) as and for his/her Last Will and we, having witnessed the signing (or the Testator's acknowledgment of the signature) (or the Testator's acknowledgment of the Will), have by our signatures hereunto subscribed our names and addresses as attesting witnesses on the date last above written.

SELF-PROVED WILL

     I,                                             the Testator, sign my name to this instrument this                day of                                            , yr            , and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my Last Will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.

     We,                                             and                                            , the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the Testator signs and executes this instrument as his/her Last Will and that he/she signs it willingly (or willingly directs another to sign for him/her), and that each of us, in the presence and hearing of the Testator, hereby signs this Will as witness to the Testator's signing, and that to the best of our knowledge the Testator is eighteen (18) years of age or older, of sound mind and under no constraint or undue influence.

     Subscribed, sworn to and acknowledged before me by                                      , the Testator and subscribed and sworn to before me by                                       and                                       , witnesses, this             day of                             ,             .