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It includes preresidual credit shelter and residual QTIP trusts, with language in a credit trust to protect from Medicaid] LAST WILL AND TESTAMENT OF ____________________ I, _____________, of the City of __________, County of __________ and State of New York, being of sound mind and memory, do make, publish and declare this to be my last Will and Testament, hereby revoking all prior Wills and Codicils: FIRST: I direct that all my legal debts (including unpaid charitable pledges) and funeral expenses be paid by my Executors, hereinafter named, as soon as may be practicable. SECOND: To my husband, ______________, if he survives me, I give and bequeath all my tangible personal property, which shall mean all property that is not real estate and whose value is its own substance or uniqueness, such as furniture, jewelry or a coin collection. It does not include cash, books, documents or other papers that are only evidence of intangible property rights, such as bank accounts, stock certificates, promissory notes, insurance policies and the like. This bequest shall include the proceeds of any insurance collected after my death as a result of the damage or destruction of my tangible personal property either before or after my death. If my husband fails to survive me, then such property shall pass equally to those of my children who survive me. THIRD: (A) If my husband survives me, I give and bequeath an amount equal to the largest amount, if any, by which my federal taxable estate (determined before giving effect to this Article THIRD) may be increased without causing an increase in the federal estate tax payable by reason of my death, to the Trustees, hereinafter named, IN TRUST, for the following uses and purposes: to hold, manage, and invest the property, to collect the income thereof and to pay over or apply so much or all of the net income to or for the benefit of my husband and any descendant of mine living from time to time, to such extent, in such amounts or proportions, equal or unequal, and to the exclusion of any of them, and at such time or times as the Trustees (other than any then-eligible income beneficiary), in the exercise of absolute discretion, shall deem advisable. Any net income not so paid or applied shall be accumulated and added to the principal of the trust at the end of each calendar year. In addition, the Trustees shall be authorized at any time to pay over to or apply for the benefit of any then-eligible income beneficiary, out of the principal of the trust, any amount, including the whole thereof, as the Trustees, other than any then-eligible income beneficiary, in the exercise of absolute discretion, shall deem advisable, without limitation. Without in any way limiting the absolute discretion given the Trustees, it is my intention that my husband be considered the primary beneficiary of the trust and that his present and future needs be given primary consideration. Payments of income or principal for any beneficiary shall only continue, however, subject to the provisions of paragraphs B and C following. This trust is created to supplement, not replace, any and all available public benefits and entitlements, and to supplement the support of a beneficiary. It is intended to allow a beneficiary to live independently or at home in reasonable comfort. It is the intent of this Will that the trust’s income and principal is not to be considered income to nor assets of any beneficiary for any purposes as stated in statute, rules or regulations of any governmental unit, agency or department.
There shall be no invasion of principal for the benefit of any beneficiary of this trust ordered by any court pursuant to N. (F) I recognize that the amounts passing to the Trustees under this Article may be partially reduced or totally eliminated by nondeductible gifts and the payments of certain estate taxes and charges required by other provisions of this Will. contracts. both real and personal and wheresoever situate. clothing. Under no circumstances shall my Trustees exercise discretion to utilize funds for the payment of such services that would otherwise be borne by any publicly funded program. dental and insurance needs. this trust shall be funded with assets that are ineligible for the marital deduction under the federal estate tax and assets that are not productive of income. entertainment expenses. engagements or liabilities of the respective beneficiaries thereof. or when the trust property has been exhausted. per stirpes. and. his creditors.6(b) or any other provision of law. expenses for a traveling companion (if requested). medical. The exercise of this power of appointment shall be made in his Will and by specific reference to this power. and to pay or apply such income in convenient installments (but at least annually) to or for the benefit of my said husband. or the creditors of his estate. the final determination in the federal estate tax in my estate shall control. support. and that such amount may be affected by determinations or elections made by my Executors or in the exercise of discretion under this Will or under the provisions of the Internal Revenue Code. Powers and Trusts Law § 7-1. To the extent such assets are available for this purpose. hereinafter named. subject to the valid exercise of the power of appointment granted him under Paragraph D of this Article. IN TRUST. to collect the income therefrom. sale or pledge. (G) The trust shall terminate upon my husband’s death. except that no appointment shall be made to my husband. I give. execution or sequestration under any legal. then the trust property shall pass according to the terms of this Will.Y. to the Trustees. manage and invest the same. medical and dental care. state or federal government or agency or department thereof. This trust shall be designated 4 -2 12/06 . education and training costs. the Trustees shall have absolute discretion to pay to or apply the income or principal to provide for the needs of such beneficiary over and above basic maintenance. devise and bequeath as follows: (A) If my husband survives me. and shall not be liable to anticipation. (C) The shares of income and the principal of the trust established under this Article of my Will shall not in any way or manner be subject to or liable for any of the debts. the remainder shall be divided among and paid to my then-living children and the then-living descendants of any deceased child. his estate. but in no event shall the value of all assets so distributed be less than the amount calculated to pass under this Article. The value of assets used to satisfy this bequest shall be the value of such assets on the date of distribution. transportation costs. Estates. equitable or other process of law. Nothing herein shall preclude the Trustees from purchasing those services and items that promote the beneficiary’s happiness. (D) My husband shall have the power to appoint any part or all of the principal of the trust property to any or all of my lineal descendants and to impose such additional trusts or conditions as he deems appropriate. including but not limited to vacation and recreation trips away from place of residence. to hold. paid for by any local. FOURTH: All the residue of my estate. welfare and development. If the power is not validly exercised. (E) In computing the amount to pass pursuant to this Article. and all credits against such tax shall be taken into account (except that the credit for state death taxes shall be taken into account only to the extent that doing so would not result in an increase in the state death taxes that would otherwise be payable).§ ESTATE PLANNING AND WILL DRAFTING (B) In applying the income or principal for the benefit of a beneficiary. nor subject to attachment.
I would expect. that some consideration would be given to the estate tax payable by my husband’s estate before the election is made. Upon my husband’s death. health. then the trust property shall pass according to the terms of this Article. they shall each be administered as separate trusts with identical terms. (C) If my husband fails to survive me. or is expected to die soon after. The exercise of this power of appointment shall be made in his Will and by specific reference to this power. my husband is empowered to require my Executors or Trustees. 12/06 4 -3 . I authorize my Executors to divide such property into two fractional shares equal respectively to the portion as to which the election was made and the portion as to which it was not made. inheritance and transfer taxes imposed by any domestic or foreign laws by reason of his death. If a fixed-dollar distribution applies to a trust that becomes separate trusts pursuant to this paragraph. It is anticipated that the Executors would elect so as to minimize the federal estate tax in my estate. my Trustees should exhaust the principal of this trust before using any part of the principal of the credit trust created by Article THIRD hereof. including the allocation of my generation-skipping transfer tax exemption and that of my husband. (E) Notwithstanding any other provision of this Will. I give the residue of my estate in equal shares to my children who survive me and the issue of any child who fails to survive me. I also authorize the Trustees to hold separate trusts with identical terms in solido. and I authorize the Trustees to combine separate trusts with identical terms into a single trust at any time during the administration of the trust. part of this trust should qualify for the marital deduction allowable in determining the estate tax upon my estate. so that one of said trusts is entirely subject to such election and the other is not subject to it. particularly if he dies before the election is made. per stirpes. for any other purpose. In making such invasions.” I authorize my Trustees. the Trustees shall pay over the principal of the trust to my then-living issue.FUNDAMENTALS OF WILL DRAFTING § the “Marital Trust. his estate. Such shares shall be held and administered by the Trustees as separate trusts with identical terms. and the pattern of discretionary distributions in one trust need not be followed in any other. to the extent that any assets held under this Article are not income-producing. his creditors or the creditors of his estate. Whenever such shares are created. (D) It is my intention that my Executors use absolute discretion in determining what. except that no appointment shall be made to my husband. if any. at any time and from time to time. and (2) the amount of all such taxes that would have been payable if none of my husband’s interest or his estate’s interest in this trust were taxable under such laws. the trust shall terminate and. subject to the valid exercise of the power of appointment granted under paragraph (B) following. using absolute discretion. maintenance and education of my husband. to convert such assets into income-producing property. the dollar amount shall apply pro rata to each separate trust in proportion to the initial fractional shares constituting the trust. I further authorize my Executors and Trustees to make such further divisions of the property passing under this Article as may seem appropriate. (B) My husband shall have the power to appoint any part or all of the principal of the trust property to any or all of my lineal descendants and to impose such additional trusts or conditions as he deems appropriate. however. however. to pay or apply such portion of the principal of this trust as the Trustees may deem necessary for the support. Each separate trust may be invested in different ways. If my Executors make an election to qualify a portion (but less than all) of the property passing under this Article for the marital deduction. at any time and from time to time. provided. per stirpes. If the power is not validly exercised. in the exercise of absolute discretion. that from the principal of the trust there shall be paid to my husband’s estate (unless his Will provides expressly otherwise) an amount equal to the difference between (1) the amount of all estate.
FIFTH: In the event any descendant of mine is under the age of 35 years at the time he or she becomes entitled to a principal share hereunder (such as at the conclusion of the trusts provided previously herein). The other share shall pass to those persons who would be the statutory distributees of my husband as defined by said laws if he had died after my death and after the death of all issue of mine. shall be charged against and paid as follows: (A) If my husband shall survive me. The other share shall pass to those persons who would be the statutory distributees of my husband under said laws if he had died immediately upon such termination. I direct that I shall be deemed to have predeceased him and that the provisions of this Will shall be construed upon that assumption. if living. even to the extent of exhausting the entire principal. which distributees shall be determined as if I died immediately upon the termination of the trust. to the extent the property causing the tax passes outside this Will. transfer and other death taxes (but excluding any additional tax created by any generation-skipping transfer tax imposed under chapter 13 of the Internal Revenue Code or corresponding provisions of state law. to invest and reinvest the same. out of the residue of my estate. receive and accumulate the income therefrom. maintenance. education or cost of a wedding of said individual as his or her circumstances may indicate. whether such taxes be payable by my estate or any recipient of any such property and whether or not such property passes under this Will. succession. SIXTH: In the event my husband and I shall die simultaneously. inheritance. to collect. all issue of mine shall be deceased.§ ESTATE PLANNING AND WILL DRAFTING (F) If my husband and all issue of mine fail to survive me. (H) Notwithstanding any other provision of this Will. health. SEVENTH: All estate. devise and bequeath the residue of my estate in two equal shares. (C) I direct that any tax (including any interest and penalties thereon) imposed by reason of chapter 13 4 -4 12/06 . I direct that the amount due such person be paid to or retained by the Trustees. or § 2032A of the Code or corresponding provisions of state law) including any interest and penalties thereon. (G) If at the termination of any trust created under this Will. out of the credit trust passing under Article THIRD of this Will to the extent the property causing such tax passes under this Will. as defined under the laws of the State of New York in force at the time of the execution of this Will. then such tax shall be borne by such nonprobate property. paid to any domestic or foreign taxing authority with respect to all property taxable by reason of my death. then such tax shall be borne by such nonprobate property. or under such circumstances that the order of our deaths cannot be established by clear and convincing proof. notwithstanding the provisions of any law establishing a different presumption of order of death or providing for survivorship for a fixed period as a condition of inheritance of property. The trust shall continue until such time as the individual reaches the age of 35 years or sooner dies. I give. or to his or her executor or administrator if deceased. One such share shall pass to my statutory distributees as defined under the laws of the State of New York in force at the time of the execution of this Will. IN TRUST. whereupon the trust shall terminate and the remaining principal together with all accumulated or accrued income shall be paid to the individual. the remainder of each such trust shall pass in two equal shares. One such share shall pass to my statutory distributees who survive me. and to pay or apply said income and the principal in the sole and uncontrolled discretion of the Trustees for the support. to the extent the property causing the tax passes outside this Will. (B) If my husband fails to survive me. without apportionment to the extent that the property causing the tax passes under this Will. my husband shall be authorized at all times to require the Trustees to make all property held in this Marital Trust income-producing.
or partly in each. as the same may be amended. (I) If all or a portion of my estate or any trust shall vest in absolute ownership in a minor. of whatever nature and wherever located. shall be paid as provided in § 2603 of the Code.FUNDAMENTALS OF WILL DRAFTING § of the Code or corresponding provisions of state law. without limitation by reason of specification: (A) To retain within the credit trust any residence that I may own at my death as a home for any of the beneficiaries hereunder. obligations or claims held by or asserted against them or which may affect estate assets. extend. In establishing such account. (B) To retain any property in my estate and in any trust. real or personal. including credit. of whatever nature and wherever located. even though shares be composed differently. insurance. and to 12/06 4 -5 . or (2) To distribute the whole or any part of such property to the parent or guardian of such minor. abandon. compromise. (D) To hold property in the name of a nominee. or submit to arbitration. and to pay taxes. exchange. in addition to the powers conferred upon an executor and trustee by the laws of the State of New York and elsewhere in this Will. (F) To renew. whether or not of a type or quality or constituting a diversification proper for investment by a fiduciary under the laws of New York or any other jurisdiction. which. is not economical to continue because of its small size. with respect to the property passing under this Will or otherwise. and whether or not productive of income. for such consideration and upon such terms. (J) To terminate any trust. repairs and expenses of operation thereof as expenses of administration of that trust. In such event. (K) To join with my husband in filing joint income tax returns for any period up to my death. I authorize the Executors and Trustees in their absolute discretion and without authorization by any court. the following discretionary powers. The receipt and release of the custodian shall be sufficient to discharge any liability of my Executor to the minor. (G) To make distributions in money or in kind. including undivided interests. as seems advisable. EIGHTH: I confer upon my Executors and Trustees with respect to the management and administration of any property included in my estate or any trust created thereunder. upkeep. abandon or otherwise dispose of any property at public or private sale. including an election to claim administration expenses or losses as income. the remainder of the trust shall be paid to the income beneficiary or beneficiaries proportionately. release with or without consideration. I authorize the duration to be extended to age 21 at the fiduciary’s discretion. (H) To determine without restriction whether to exercise any elections provided for under the Internal Revenue Code. (E) To borrow money from a fiduciary or others for any purpose connected with the administration of my estate and to pledge or mortgage any property for any purpose.or estate-tax deductions or an election to value my estate as of the date of my death or under the so-called alternate valuation method or special-use valuation method. mortgage payments. in the determination of the Trustee. either: (1) To distribute the whole or any part of such distribution to a custodian under the New York Uniform Transfers to Minors Act and to choose such custodian without limitation. (C) To sell. assign.
without liability for such delegations. (O) Notwithstanding anything to the contrary in this Will. to deposit any such securities with any committee. to take all action in respect of any such securities as my Executors or Trustees could do as absolute owner thereof. to select and vote for directors. consolidation.§ ESTATE PLANNING AND WILL DRAFTING pay any taxes due with respect thereto. including any person who is a beneficiary or fiduciary under this my Will. consent or become a party to. partner or associate. corporations and other business organizations and associations for the carrying on of any such business. sale or liquidation of any such business. consolidation. voting trust. or apportion any refund. and any successor business thereto. to join in. depository or trustee and to pay any and all fees. to liquidate. general or limited partners. limit or otherwise fix and change the operation or policy of any such business and to act with respect to any other matter in connection with any such business. oppose or otherwise participate in any reorganization. to exercise or sell any stock options or any conversion. exchange. to enter into stockholders’ agreements with corporations in which my estate or any trust estate has an interest and/or with the stockholders of such corporations. NINTH: No trust created under this Will shall continue more than 21 years after the death of the last descendant of my parents and my husband’s parents who was alive at my death. to sell any such business. manager. to establish and to join with others in establishing such partnerships. merger. to advance money or other property from my estate or any other source to any such business as may be deemed advisable. readjustment. (M) In respect of any securities forming part of my estate or any trust created hereunder. as may be deemed advisable: to take part in the management of such business and to delegate such duties. to any employee. with the requisite powers. and in connection with any business. and generally. to vote in person or by proxy. partners. If a trust is terminated 4 -6 12/06 . partners. incorporated or unincorporated (whether or not income-producing or resulting in lack of diversification) which I may own or in which I may have an interest at the time of my death. (L) To renounce any power granted any fiduciary hereunder. such power would or could jeopardize any deduction or otherwise cause my general testamentary scheme and tax plan to be put at risk of not being carried out. voting trust. subscription or other rights. to reduce. associates and officers of any such business and to compensate such directors. merger. subscription or other rights and to receive and hold any new securities issued as a result of any such reorganization. to exercise any and all powers as my Executor and Trustee may deem necessary with respect to the continuance. retirement. to make loans of cash or securities to any such business and to guarantee the loans of others made to any such business. and to purchase or otherwise acquire any business or interest in any business and to operate the same. associates and officers of any such business. any such business or any interest in such business. either alone or jointly with others. in the sole determination of the fiduciary. to borrow money for any such business from any lender and to secure such loan or loans by a pledge or mortgage of any part of my estate. (N) To retain and continue the operation of any business. to act as directors. it is my intention that all powers of the Trustees or any fiduciary be construed so as not to disqualify the trust under the residuary clause of this Will from eligibility for the marital deduction under the federal estate tax. exchange or exercise of conversion. limited partnerships. expenses and assessments in connection therewith. expand. and generally. discretionary or otherwise. management. associates and officers. or any stock or other securities representing the interest of my estate or any trust estate in any such business. any interest in any such business. if. to deposit securities with a voting Trustee. dissolution or other changes affecting any such securities. to have the following authority and to exercise the following powers. and to contribute to the capital of such business any part or all of my estate as may be deemed advisable.
then I appoint my son. and to waive the necessity of a bond for the designee. as alternate co-Trustee. If either designee fails to qualify or ceases to act. and who are the closest degree of relationship to me. including a corporation. residing at ___________________________________________________________________________. do hereby certify that the foregoing instrument was signed by the above-named Testatrix in the presence of us and each of us and that said Testatrix at the same time declared said instrument to be her Last Will and Testament and requested us and each of us to sign our names thereto as witnesses to the execution thereof. and any successor and substitute therefor as may at any time be duly appointed and acting in the capacity of Executor. If at any time there is not an alternate Trustee designated or willing to act. the undersigned. then I appoint my daughter. If either designee fails to qualify or ceases to act. and include such person. the remainder shall pass equally to the descendants of mine who are beneficiaries of that trust. __________________.FUNDAMENTALS OF WILL DRAFTING § pursuant to this Article. IN WITNESS WHEREOF I have hereunto subscribed my name this _____ day of ___________ in the year 20__. (D) The terms “Executor” and “Trustee” and the pronouns therefor whenever used in this Will shall be construed as masculine. feminine or neuter. _______________ to act as alternate Executor. I authorize the Trustee(s) last acting or designated (other than any possible beneficiary of any interest hereunder) to designate a successor or alternate. __________________________ We. (B) I hereby appoint my daughter ____________ and _____________ as Trustees hereof. which we hereby do in the presence of said Testatrix and of each other on the day and year last above written. Executrix or Trustee. (C) I direct that no fiduciary bond or other security shall be required of any fiduciary named in this Will. even though such fiduciary may reside outside the State of New York. ___________________________________________________________________________. residing at ___________________________________________________________________________. 12/06 4 -7 . as sense requires. ___________________________________________________________________________. TENTH: (A) I hereby appoint __________________ and my daughter ______________ as Executors hereof.
on the ______ day of ______________. Each of the undersigned was acquainted with the Testatrix at such time and makes this affidavit at Testatrix’s request. 20__. and such signatures are the signatures affixed by the Testatrix and by each of the undersigned. deposes and says: The foregoing instrument was subscribed in our presence and sight at the end thereof by ________________________. or from any other physical or mental impairment that would affect Testatrix’s capacity to make a valid Will. 20__. original instrument and was not executed in counterparts. _________________________ Notary Public _____________________________________ 4 -8 12/06 .§ ESTATE PLANNING AND WILL DRAFTING WITNESS AFFIDAVIT STATE OF NEW YORK COUNTY OF ___________ ) ) ss.: ) Each of the undersigned. The foregoing Will was executed as a single. hereinafter referred to as the Testatrix. examined the signatures at the end of the foregoing Will. individually and severally being duly sworn. could read. write and converse in the English language and was suffering no defect of sight. ____________________________________ Severally sworn to before me this _________ day of ____________. Each of the undersigned thereupon signed as a witness at the end of the foregoing Will at the request of the Testatrix and in her presence and in sight of each other. contemporaneously with the execution of this affidavit. hearing or speech. Each of the undersigned has. The Testatrix at the time of making such subscription declared the foregoing instrument so subscribed to be her last Will. in the respective opinions of the undersigned. The Testatrix.