REVOCABLE LIVING TRUST AGREEMENT
(Created under the Mississippi Uniform Trust Code)
Effective Date: [ EFFECTIVE DATE ]
Settlor/Grantor: [ SETTLOR FULL LEGAL NAME ], residing at [ SETTLOR ADDRESS ]
Initial Trustee: [ INITIAL TRUSTEE FULL LEGAL NAME ], residing at [ TRUSTEE ADDRESS ]
Settlor and Trustee are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Settlor desires to create a revocable inter vivos trust pursuant to the Mississippi Uniform Trust Code, Miss. Code Ann. § 91-8-101 et seq., for the benefit of the persons named herein.
B. Settlor, contemporaneously herewith, transfers to Trustee the property listed on Schedule A (the “Initial Trust Property”) and intends that all such property, and any future additions, comprise the “Trust Estate.”
C. Trustee is willing to accept the Trust Estate and administer it pursuant to the terms of this Trust Agreement.
NOW, THEREFORE, for good and valuable consideration, the Parties agree as follows:
[// GUIDANCE: Tailor Recitals to add family history, tax objectives, or other background that may aid later construction.]
TABLE OF CONTENTS
- Definitions
- Creation of Trust; Trust Estate
- Revocation and Amendment
- Beneficiaries and Beneficial Interests
- Distributions During Settlor’s Lifetime
- Distributions Upon Settlor’s Incapacity
- Distributions Upon Settlor’s Death
- Trustee Powers and Duties
- Successor Trustee; Vacancy in Trusteeship
- Trustee Compensation and Reimbursement
- Trustee Indemnification; Limitation of Liability
- Administrative Provisions
- Default and Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution
Schedules & Exhibits
• Schedule A – Initial Trust Property
• Schedule B – Trustee Fee Schedule (optional)
• Exhibit 1 – Form of Assignment (optional)
1. DEFINITIONS
Capitalized terms used herein have the meanings set forth below:
“Arbitration Rules” – the Commercial Arbitration Rules of the American Arbitration Association then in effect.
“Beneficiary(ies)” – each person or entity entitled to present or future distributions under this Trust.
“Code” – the Internal Revenue Code of 1986, as amended.
“Effective Date” – the date first written above.
“Incapacity/Incapacitated” – Settlor’s inability to manage property or financial affairs as evidenced by (i) written certification of two licensed physicians, or (ii) a court order.
“MUTC” – the Mississippi Uniform Trust Code, Miss. Code Ann. § 91-8-101 et seq.
“Probate Court” – the Chancery Court of the State of Mississippi having jurisdiction over this Trust.
“Qualified Beneficiary” – as defined in Miss. Code Ann. § 91-8-103(o).
“Trust” – the “[ SETTLOR NAME ] Revocable Living Trust.”
“Trust Estate” – all property, real or personal, tangible or intangible, held from time to time by Trustee under this Agreement.
[// GUIDANCE: Insert additional defined terms if custom drafting requires them.]
2. CREATION OF TRUST; TRUST ESTATE
2.1 Establishment. Settlor hereby establishes the Trust and transfers the Initial Trust Property to Trustee, who accepts it upon the terms herein.
2.2 Trust Estate. The Trust Estate includes:
(a) the Initial Trust Property;
(b) all subsequent additions accepted by Trustee;
(c) all income and proceeds therefrom; and
(d) all substitutions and accretions.
2.3 Title. Assets shall be titled: “[TRUSTEE NAME], Trustee, [SETTLOR NAME] Revocable Living Trust dated [EFFECTIVE DATE].”
2.4 Spendthrift. A Beneficiary’s interest is not subject to anticipation, assignment, or attachment prior to actual receipt, to the maximum extent permitted by law.
3. REVOCATION AND AMENDMENT (Miss. Code Ann. § 91-8-602)
3.1 Settlor’s Power. During Settlor’s lifetime, Settlor may revoke or amend this Trust, in whole or part, by written instrument delivered to Trustee.
3.2 Effect of Revocation. Upon revocation, Trustee shall promptly transfer the Trust Estate to Settlor (net of reasonable reserves for expenses), whereupon the Trust terminates.
3.3 No Other Person’s Authority. Except as stated herein, no person other than Settlor may amend or revoke this Trust.
4. BENEFICIARIES AND BENEFICIAL INTERESTS
4.1 Primary Beneficiary. Settlor is the sole Beneficiary during Settlor’s lifetime.
4.2 Discretionary Beneficiaries. Trustee may distribute income or principal to Settlor’s spouse, [ SPOUSE NAME ], and/or Settlor’s issue as Trustee deems advisable.
4.3 Remainder Disposition. Upon Settlor’s death, the Trust Estate shall be distributed as provided in Section 7.
4.4 Modification of Beneficiaries. Settlor may add or remove Beneficiaries by written instrument delivered to Trustee.
[// GUIDANCE: Replace discretionary standards and remainder provisions to fit the client’s dispositive plan.]
5. DISTRIBUTIONS DURING SETTLOR’S LIFETIME
5.1 Income. Trustee shall distribute all net income to Settlor at least annually unless Settlor directs otherwise.
5.2 Principal. Trustee shall distribute principal to Settlor upon written request; absent request, Trustee may distribute principal for Settlor’s health, education, maintenance, and support (“HEMS”).
5.3 Tax Reimbursements. Trustee may pay taxes attributable to Trust income directly or reimburse Settlor for such taxes.
6. DISTRIBUTIONS UPON SETTLOR’S INCAPACITY
6.1 Determination. Incapacity is determined under Section 1.
6.2 Settlor’s Needs. During Incapacity, Trustee shall apply Trust income and principal for Settlor’s HEMS, considering other resources.
6.3 Family Support. Trustee may, in Trustee’s discretion, make HEMS distributions to Settlor’s spouse and issue during such period.
7. DISTRIBUTIONS UPON SETTLOR’S DEATH
7.1 Payment of Obligations. Trustee shall pay (i) Settlor’s enforceable debts, (ii) estate administration expenses, and (iii) taxes allocable to Trust assets.
7.2 Specific Bequests. The following gifts shall be distributed free of trust:
• [DESCRIPTION OR “None.”]
7.3 Residue. The remaining Trust Estate (“Residue”) shall be distributed:
(a) __ % to [BENEFICIARY A];
(b) __ % to [BENEFICIARY B];
(c) balance to Settlor’s issue, per stirpes.
7.4 Testamentary Sub-Trusts. Any share exceeding $[THRESHOLD] may, at Trustee’s discretion, be held in further trust per Schedule C (if attached).
7.5 Disclaimers. Disclaimed or lapsed interests pass pro rata to remaining Remainder Beneficiaries unless otherwise provided.
8. TRUSTEE POWERS AND DUTIES
8.1 General Powers. Trustee has all powers granted by the MUTC and Miss. Code Ann. § 91-9-101 et seq., exercisable in a fiduciary capacity.
8.2 Specific Powers. Trustee may, inter alia:
(a) retain or dispose of assets;
(b) employ professionals and pay their fees;
(c) borrow and encumber Trust assets;
(d) make tax elections; and
(e) hold property in nominee form.
8.3 Loyalty & Conflicts. Transactions involving Trustee personally require informed written consent of all Qualified Beneficiaries or court approval (§ 91-8-802).
8.4 Prudent Investor. Investments must comply with the Uniform Prudent Investor Act, Miss. Code Ann. § 91-9-601 et seq.
8.5 Reports. Trustee shall furnish annual accounts to each Qualified Beneficiary (§ 91-8-813).
9. SUCCESSOR TRUSTEE; VACANCY IN TRUSTEESHIP
9.1 Designated Successors. Upon the first vacancy, [ FIRST SUCCESSOR TRUSTEE ] shall serve. If unable or unwilling, then [ SECOND SUCCESSOR TRUSTEE ].
9.2 Further Vacancies. Thereafter, a majority of adult Qualified Beneficiaries may appoint a Successor; absent agreement, the Probate Court may fill the vacancy (§ 91-8-704).
9.3 Resignation. Trustee may resign on 30 days’ written notice to Settlor (if living) and all Qualified Beneficiaries or with court approval (§ 91-8-705).
9.4 Removal. Trustee may be removed pursuant to § 91-8-706 by the Probate Court or by unanimous written direction of Settlor or all Qualified Beneficiaries if consistent with the Trust’s purposes.
9.5 Transfer of Assets. A departing Trustee shall promptly transfer Trust property and records to the Successor (§ 91-8-707).
10. TRUSTEE COMPENSATION AND REIMBURSEMENT
10.1 Compensation. Trustee is entitled to reasonable compensation, per Schedule B or, absent a schedule, per Trustee’s published fee schedule or § 91-8-708.
10.2 Reimbursement. Trustee shall be reimbursed for properly incurred expenses.
11. TRUSTEE INDEMNIFICATION; LIMITATION OF LIABILITY
11.1 Indemnity. The Trust Estate shall indemnify Trustee and its agents against all claims and expenses, except those resulting from willful misconduct or gross negligence.
11.2 Liability Cap. Consistent with the “trust_assets” directive, any liability of Trustee is limited to the Trust Estate; Trustee’s personal assets are not reachable.
11.3 Exculpation. Trustee is not liable for any loss absent willful misconduct or gross negligence.
12. ADMINISTRATIVE PROVISIONS
12.1 Principal vs. Income. Allocations shall follow the Mississippi Uniform Principal and Income Act, Miss. Code Ann. § 91-17-1 et seq.
12.2 Records. Trustee shall maintain complete records for at least seven (7) years.
12.3 Tax Compliance. Trustee shall obtain necessary taxpayer identification and file required returns.
12.4 Funding. Settlor shall execute all deeds, assignments, and beneficiary-designation forms necessary to transfer assets to the Trust.
[// GUIDANCE: Provide clients with deeds and change-of-beneficiary forms; incomplete funding is the most common trust failure.]
13. DEFAULT AND REMEDIES
13.1 Events of Default. Include (i) material breach of fiduciary duty, (ii) violation of this Agreement, (iii) insolvency, or (iv) other grounds under § 91-8-706.
13.2 Notice/Cure. Written notice; 30-day cure period (or longer if diligently pursued).
13.3 Remedies. Removal, surcharge, injunction, accounting, or other equitable relief.
13.4 Attorneys’ Fees. The court may award fees and costs in the interests of justice.
14. RISK ALLOCATION
14.1 Force Majeure. Trustee is excused from delays caused by events beyond reasonable control.
14.2 Insurance. Trustee may acquire fiduciary or property insurance at Trust expense.
14.3 Tax Changes. Trustee may take reasonable steps (e.g., decanting, disclaimers) to mitigate adverse tax effects.
15. DISPUTE RESOLUTION
15.1 Governing Law. Mississippi law governs.
15.2 Forum. Exclusive venue in the Chancery Court of [ COUNTY ], Mississippi.
15.3 Optional Arbitration. If unanimously elected in writing by all Qualified Beneficiaries and Trustee, disputes shall be arbitrated in [ CITY ], Mississippi, under the Arbitration Rules; otherwise, the Probate Court retains jurisdiction.
15.4 Jury Waiver. Each Party waives jury trial to the extent permitted by law.
15.5 Injunctive Relief. Parties may seek injunctive relief to protect Trust assets or enforce fiduciary duties.
16. GENERAL PROVISIONS
16.1 Amendment/Waiver. Only Settlor (if living) or the Probate Court may amend; waivers must be in writing.
16.2 Assignment. No Beneficiary may assign or encumber an interest before distribution.
16.3 Successors and Assigns. Binding on and inure to Parties’ successors.
16.4 Severability. Invalid provisions shall be reformed to effect Settlor’s intent; remaining provisions remain enforceable.
16.5 Entire Agreement. This document, with schedules/exhibits, supersedes all prior agreements.
16.6 Counterparts; Electronic Signatures. Permitted; deemed originals.
16.7 Headings. For convenience only.
17. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties execute this Agreement as of the Effective Date.
| ________ | ________ |
| [ SETTLOR NAME ], Settlor | Date |
| ________ | ________ |
| [ TRUSTEE NAME ], Trustee | Date |
NOTARIZATION (Recommended)
State of Mississippi )
County of [_] ) SS.
On this ___ day of ____ 20__, before me, the undersigned Notary Public, personally appeared [ SETTLOR NAME ] and [ TRUSTEE NAME ], proved to me on the basis of satisfactory evidence to be the individuals whose names are subscribed to this instrument, and acknowledged that they executed the same for the purposes therein contained.
Witness my hand and official seal.
Notary Public
My Commission Expires: ____
[// GUIDANCE: While Mississippi does not require notarization for trust validity, it greatly reduces future evidentiary disputes.]
SCHEDULE A
Initial Trust Property
- Checking Account No. __ at [ BANK NAME ]
- Real property located at [ LEGAL DESCRIPTION ]
- [ADD ADDITIONAL ASSETS]
SCHEDULE B (optional)
Trustee Fee Schedule
[Insert corporate fiduciary fee schedule or negotiated percentage.]
EXHIBIT 1 (optional)
Form of Assignment to Trust
ASSIGNMENT
For value received, the undersigned, [SETTLOR NAME], hereby assigns to [TRUSTEE NAME], as Trustee of the [SETTLOR NAME] Revocable Living Trust dated [EFFECTIVE DATE], all right, title, and interest in the following property:
• [DESCRIPTION]Dated: _____
[SETTLOR NAME]
[// GUIDANCE: Use deeds for real estate; re-title vehicles and brokerage accounts; update life-insurance/retirement-plan beneficiary designations to the Trust or Trustee as appropriate.]
END OF DOCUMENT