Probate & Trust Law Section Conference Manual ... - Minnesota CLE

the independent special trustee. An independent special trustee may resign at any time by delivering
written notice of resignation to my trustee. Notice of resignation shall be effective in accordance
with the terms of the notice.
Rights and Obligations of Successor Trustees
Each successor trustee serving under this agreement, whether corporate or individual, shall have all
of the title, rights, powers and privileges granted to the initial trustees named under this agreement.
In addition, each successor trustee shall be subject to all of the restrictions imposed upon, as well as
all obligations and duties, given to the initial trustees named under this agreement.
Additional General Provisions Regarding Trustees
If the trustee is given discretion concerning distributions of income or principal, that discretion shall
be absolute and uncontrolled and subject to correction by a court only if the trustee should act utterly
without reason, in bad faith, or in violation of specific provisions of this Agreement. If the I have set
forth general guidelines (as opposed to directions or dollar limits) for the trustee in making
distributions, those guidelines shall be merely suggestive and shall not create an enforceable standard
whereby a distribution could be criticized or compelled. It is my strong belief that the trustee will be
in the best position to interpret and carry out the intentions expressed herein under changing
circumstances. This Section shall not, however, apply to any standards framed in terms of health,
education, maintenance or support (including support in an accustomed manner of living), as those
words shall create an ascertainable standard for Federal tax purposes under Section 2041(b) of the
Internal Revenue Code, when applied to a trustee’s power or a power held individually, although
even in those cases the holder of the power shall have as much discretion as is consistent therewith.
An interested trustee who is otherwise authorized to make distributions to himself or herself subject
to an ascertainable standard may exercise such discretion, notwithstanding any contrary rule of law,
unless such authorization would cause the trust property to be subject to the claims of the creditors of
such tnterested trustee.
Option 1 [Notwithstanding any other provision of this Agreement, each trustee is prohibited from
making, voting on or otherwise participating in any discretionary distribution of income or principal
from a trust that would discharge or substitute for a legal obligation of that trustee, including the
obligation to support a beneficiary of the trust. Further, notwithstanding any other provision of this
Agreement, any trustee authorized to distribute income or principal for his or her own health,
education, maintenance or support in his or her accustomed manner of living, as those words shall
create an ascertainable standard for Federal tax purposes under Section 2041(b) of the Internal
Revenue Code, shall consider all resources reasonably available to himself or herself. Subject to
that, in exercising discretion over distributions, the trustee may consider or disregard other resources
available to any beneficiary.]
Option 2 [Notwithstanding any other provision of this Agreement (including, but without limitation,
any power specifically conferred upon a trustee hereunder), no trustee who is a beneficiary of any
trust created hereunder shall ever participate as trustee of that trust in (i) the exercise, or decision not
to exercise, any discretion over payments, distributions, applications, uses or accumulations of
income or principal to or for the benefit of a beneficiary by the trustee, (ii) the exercise or decision
not to exercise any power conferred on the trustees under subparagraphs (15) through (29) of Article
FIFTH hereof, (iii) the exercise or decision not to exercise any powers, (iv) any decision about
whether or not to change the situs of the trust, (v) the exercise or decision not to exercise any power
as trustee to disclaim any property or power, or (vi) the exercise of any general power of appointment
described in Section 2041 or 2514 of the Internal Revenue Code. If any trustee is under a duty to
support a beneficiary or is acting as a guardian, conservator or committee of any person who is a
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