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HomeMy WebLinkAboutSUB201800132 Agreements Family Division Plat 2017-04-27 The Peter T. Way Trust Agreement dated April 27, 2017 I, Peter T. Way, of Albemarle County, Virginia, make this Trust Agreement dated April 27, 2017 as grantor and initial Trustee. I am married to Elizabeth C. Way ("my wife"). I have four children, Kent S. Stout, of Buckingham, Virginia, David W. Way, of Scottsville, Virginia, Timothy M. Way, of Tulsa, Oklahoma, and Kristi Way, of Richmond, Virginia. The words "my children," "children of mine," "descendants,"etc. as used in this Trust Agreement shall be deemed to include Kent S. Stout as if he were my own biological child, it being my intent that he (and his descendants) be treated the same as my own biological children (and their descendants) throughout this Trust Agreement. Article I. Creation and Disposition of Trust. A. Name. This instrument may be called"the Peter T. Way Trust Agreement dated April 27, 2017" ("this Trust Agreement"). The trust established hereunder during my lifetime may be called "the Peter T. Way Trust dated April 27, 2017." B. Creation of Trust. I declare that I hold as Trustee the sum of$10.00 in cash. I may add other assets to this trust. I or any successor Trustee shall administer all the assets in trust under the terms of this Trust Agreement. In the event of my resignation as Trustee, my death or my inability to manage business or financial affairs,my son David W. Way shall have the right to become Trustee hereunder. If he fails or ceases to serve, my daughter Kristi Way shall have the right to become Trustee hereunder. The appointment of any Trustee under this paragraph shall become effective upon that person's written acceptance of fiduciary duties. C. Trust During My Lifetime. During my lifetime the Trustee shall accumulate the income and retain the principal of the trust except as I may otherwise direct. If at any time, in the opinion of the Trustee, I am unable to so direct, the Trustee may pay income or principal as the Trustee may deem necessary to provide for my support, health and comfort and to pay my obligations, including the support of my wife. The Trustee shall annually add any undistributed income to principal. D. Disposition At My Death. Following my death, the Trustee shall dispose of the remaining trust assets, including any assets received by the Trustee under my will or otherwise by reason of my death, as follows: divided among them as the Trustee considers appropriate. The second part shall consist of the balance of my tangible personal property, and the Trustee shall sell or otherwise dispose of this part and add the net proceeds to the residuary trust estate. (3) The Trustee may, in the Trustee's discretion, pay some or all of the reasonable expenses of delivering my tangible personal property to the beneficiaries,including transportation, storage and insurance, as a cost of administering my estate. Article II. Distribution of Residuary Trust Estate. Following my death, and after making or providing for the disbursements and distributions set forth in Article I above,the Trustee shall dispose of the remaining trust assets as follows: (1) If my wife survives me,the Trustee shall retain all remaining trust assets, to hold and administer in the Elizabeth Way Marital Trust for her benefit pursuant to the provisions of Article III of this Trust Agreement. (2) If my wife does not survive me,the Trustee shall distribute the remaining trust assets to my descendants who survive me,per stirpes. Article III. The Elizabeth Way Marital Trust. A. Possible QTIP Election. I understand that at the time of my death, my Executor might elect to treat the assets of the Elizabeth C. Way Marital Trust as qualified terminal interest property eligible for the marital deduction under the federal estate tax laws. In that event, I refer the Trustee to the provisions of paragraph F of Article VII of this Trust Agreement. B. During My Wife's Lifetime. (1) The Trustee shall pay the net income of the Marital Trust to my wife during her lifetime in monthly installments. (2) The Trustee may also pay to my wife or for her benefit as much of the principal of the Elizabeth Way Marital Trust as the Trustee may deem appropriate for (i) my wife's support in her accustomed manner of living, (ii)my wife's medical, dental,hospital and nursing expenses, and (iii) the expenses of my wife's invalidism, if any. -3- B. Custodial Accounts. The Trustee may distribute any interest vesting in a beneficiary under age twenty-one to a custodian under the Virginia Uniform Transfers to Minors Act (21) selected by the Trustee. The Trustee may distribute any interest vesting in an incapacitated beneficiary to a custodian under the Virginia Uniform Custodial Trust Act selected by the Trustee. Article V. Trustee's Power to Withhold Mandatory Distributions. If the Trustee, in the exercise of its sole and absolute discretion, determines that circumstances exist making it clearly contrary to the best interests of a beneficiary to receive a distribution of principal which is otherwise required to be made hereunder,the Trustee may refrain from making all or any part of such distribution until the Trustee determines that such circumstances no longer exist. Circumstances in a beneficiary's life which would justify exercising that discretion include, without limitation, being a defendant in serious litigation or being involved in bankruptcy proceedings or similar financial or matrimonial difficulties, being physically, mentally or emotionally unable to properly administer the assets to be distributed, or living under a form of government or other condition making it highly likely that the assets to be distributed would be subject to confiscation or expropriation. Article VI. Trustees. A. Removal of Trustee. During my lifetime,I may remove any Trustee at any time. The removal shall be effective upon written notice to the Trustee being removed and, if necessary, appointment of a successor Trustee by me. B. The Elizabeth Way Marital Trust. Upon my death, my son David W. Way shall have the right to serve as Trustee of the Elizabeth Way Marital Trust created under Article III. If he fails or ceases to serve, my daughter Kristi Way shall have the right to serve as Trustee. The appointment of any Trustee under this paragraph shall become effective upon that person's written acceptance of fiduciary duties. C. Additional Trustees. The then serving Trustees, acting unanimously, shall have the right at any time to appoint any individual or any law firm, bank, or trust company having trust powers to become an additional Trustee. The appointment of any additional Trustee shall be effective upon written acceptance of fiduciary duties delivered to the Trustee then serving. D. Trustee Resignation. Any Trustee may resign at any time without court approval and whether or not a successor has been appointed. Any such resignation shall be made by an -5- capacity, and no person or entity dealing with the signing Trustee shall be obliged to inquire as to the other Co-Trustees acquiescence to such action. I. Delegation of Authority.At any time that there is more than one Trustee serving under this Trust Agreement, the Trustees may provide in writing that one or any number of them may exercise any or all powers, duties or discretions vested in all of them jointly. Any such agreement may be revoked at any time by written notice given by one Trustee to the other or others. While any such agreement shall be in force, a Trustee who has delegated his powers or discretions under such an agreement shall not be liable for the acts or omissions of the other Trustees acting or required to act under such agreement. Any party dealing with a Trustee may accept and rely upon the certificate of any of them concerning any delegation of authority or responsibility permitted by this paragraph. J. Limitation of Liability. I recognize that some persons may be hesitant to serve as Trustee hereunder because of a concern about potential liability. Therefore, I direct that (i) a Trustee shall not incur any liability by reason of any error of judgment, mistake of law, or action of any kind taken or omitted to be taken in connection with the administration of the trust if it was in good faith reasonably believed by such Trustee to be in accordance with the provisions and intent hereof, except for any matter involving the Trustee's own willful misconduct or gross negligence proved by clear and convincing evidence,and(ii)each Trustee shall be fully indemnified by the trust fund against any claim or demand by any trust beneficiary or trust creditor, except for any claim or demand based on the Trustee's own willful misconduct or gross negligence proved by clear and convincing evidence. Article VII. Trust Administration. A. Fiduciary Powers. In addition to the powers granted by law, I grant the Trustee the powers set forth in Va. Code§S 64.2-777, 64.2-778,and 64.2-105, and I incorporate those Code Sections in this Trust Agreement by this reference. If those statutory powers are not recognized in any jurisdiction in which my estate or ancillary estate is administered, I grant the Trustee the powers set forth below. (1) The Trustee may sell,exchange,lease or encumber any assets of the trust estate upon such terms as the Trustee may deem appropriate. (2) The Trustee may borrow money for any purpose deemed in the best interests of the trust estate and secure such borrowings with any assets of the trust estate. -7- surety shall be required of any Trustee who shall serve hereunder. No trust established hereunder shall be subject to the ongoing supervision of any court or Commissioner of Accounts (or comparable office) in any jurisdiction. No Trustee shall be required to file any accounting with any public official, even if a court is asked to appoint a successor Trustee under this Trust Agreement. The Trustee shall not be required to register any trust hereunder. B. Duties to Inform and Report. Except as provided below,the Trustee of any trust created hereunder shall comply with the duties to inform and report set forth in Va. Code § 64.2-775. I note that these duties include (i) keeping the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests, and (ii) periodically providing qualified beneficiaries who so request a report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee's compensation, a listing of the trust assets and, if feasible, their respective market values. C. Exceptions to Duties to Inform and Report. Notwithstanding the provisions of paragraph B or any other provision of the law: (1) So long as I am living, the Trustee shall not be required to provide accountings or reports to any beneficiary except me. (2) Upon my death,the Trustee shall not be required to provide accountings, information about the trust, or other reports to any beneficiary who is not a qualified beneficiary. Furthermore,the Trustee shall not be required to provide accountings,information about the trust, or reports to any more remote descendant of mine, so long as there is a living child of mine who is also a qualified beneficiary. (3) The Trustee shall not be required to provide accountings, information about the trust, or reports to any beneficiary under age twenty-one (21) or to any beneficiary who is under a legal disability of any kind or who, in the opinion of the Trustee, is impaired or otherwise incapable, due to any infirmity, of managing his or her own financial affairs. Article IX. Trust Advisor. A. Appointment. The Trustee shall have the right at any time to designate any individual who is a licensed attorney and is not a Trustee or beneficiary of any trust under this Trust Agreement as the Trust Advisor. The designation shall be made by a written instrument delivered to the individual being appointed. The appointment shall be effective when the individual being appointed delivers written acceptance of the appointment to the Trustee. -9- p T W necessary, in the opinion of the Trust Advisor, to carry out the purposes of this Trust Agreement or any trust under this Trust Agreement, such as technical or conforming amendments in or to the powers,discretions or provisions of this Trust Agreement as the Trust Advisor may consider necessary or desirable to complement my overall estate plan. These amendments may include but are not limited to (i) trust provisions to correct a drafting error that defeats my intent,(ii)trust administrative provisions relating to the identity,qualifications, succession, removal, and appointment of the Trustee and Trust Advisor, (iii) the financial powers of the Trustee, and (iv) trust provisions that address changes in the tax laws as they existed on the date this document was executed. However, no such amendment shall enlarge, reduce or shift any beneficial interests under this Trust Agreement except as an incidental consequence of such amendment, and no such amendment shall deprive me, my estate, any trust under this Trust Agreement, or any beneficiary of any deduction, exclusion or other tax benefit which would otherwise be applicable without the written consent of the parties adversely affected. Any amendment made by the Trust Advisor shall be in writing, signed by the Trust Advisor and delivered to the Trustee. D. Personal Rights. The powers to revoke or amend this Trust Agreement are personal to me and shall not be exercisable on my behalf by any guardian, attorney-in-fact or other person (other than the Trust Advisor as provided above). Article XI. Miscellaneous Provisions. A. Competency. The written statement of the attending physician that, in his or her opinion, an individual (including myself) is not able to handle business or financial affairs shall be conclusive evidence that such individual is incompetent for purposes of this Trust Agreement, including incompetent to receive notice or otherwise participate in the removal or appointment of any Trustee. If any individual serving as a Trustee or Trust Advisor is determined to be incompetent, such individual shall be deemed to have ceased to serve in that capacity. B. Spendthrift Provisions. To the extent permitted by law,the principal and income of any trust shall not be liable for the debts of any beneficiary or subject to alienation or anticipation by a beneficiary, except as otherwise provided. C. Adoption. A person related by or through adoption shall take under this Trust Agreement as if related by or through birth. 7 -11- U / w