Trust Incentives & Disincentives

Trust Incentives & Disincentives 2016-12-13T20:33:20+00:00

by Richard Keyt, Arizona estate planning lawyer

This article contains optional trust provisions that I offer to my clients for whom I am preparing a trust.  If you are my client and you want to include any of the optional provisions listed below in your trust, do one of two things:

1.  Send me an email message and tell me the number of each optional trust provision you want in your trust, and/or

2.  Copy the text of a provision you want to in your trust, paste it into your word processor, edit the provision then copy the edited text and email it to me.

Sample Incentive Trust Provisions

Section 1.01      
Incentive Trust Provisions

(a)  Provisions for Additional Distributions

By establishing trusts for my beneficiaries, it is my intent to provide them with substantial and valuable benefits and afford them great pleasure in their inheritance.  However, I am mindful of the fact that my beneficiaries will live in a particularly litigious society, and that negative circumstances often occur in individuals’ lives that can result in loss of inherited wealth, however great or small.  For this reason I have chosen to create my trust in such a way as to try and maximize the enjoyment my beneficiaries will receive under my trust, while maintaining the greatest degree of protection for my beneficiaries’ inheritance.

My Trustee is therefore directed to provide additional distributions to a beneficiary from the beneficiary’s trust in accordance with this section.  In exercising discretion to render a distribution to any beneficiary under my trust, and in determining the appropriate timing of distributions, my Trustee is directed to balance my overall estate planning objectives with the interests of the beneficiaries and make distributions to my beneficiaries in such a way as to provide them with much enjoyment, while providing reasonable protections from third parties as much as possible.

To the extent made, the following additional distributions shall be satisfied first from income, and then from principal to the extent such distributions would require an invasion of principal.

(1)  Monthly Stipend to age 25

As soon as practicable following the death of the last to die of my spouse and me, and until the beneficiary attains age 25, my Trustee shall distribute to the beneficiary a monthly stipend in a reasonable amount as agreed upon by the beneficiary and my Trustee.  The primary objective of this monthly stipend is to provide my beneficiary with adequate spending money so as to enable the beneficiary to complete high school and undergraduate studies without the necessity of maintaining employment to provide the beneficiary with spending money.  It is my expectation that so long as the beneficiary has proven to be responsible with money, my Trustee shall be reasonably generous in rendering the beneficiary’s monthly stipend.

(2)  Christian Missions, Ministry Activities

To the greatest degree possible, I wish to encourage my beneficiaries to be actively involved in Christian Missions.  Moreover, I believe that mission experiences are greatest when shared with a spouse or close friend.  Therefore, my Trustee is directed to provide for distributions to or as directed by the beneficiary to enable the beneficiary to attend periodic mission trips.  If the beneficiary wishes to enable a companion to attend such mission trips with the beneficiary, then my Trustee is expressly authorized to make scholarship money available to the beneficiary’s companion, if needed, and as requested by the beneficiary.

If a beneficiary decides to pursue full-time Christian missions, my Trustee is authorized to distribute to or for the benefit of the beneficiary additional amounts from the beneficiary’s trust as may be reasonably necessary to support the beneficiary’s mission activities, up to and including full sponsorship.  If a beneficiary decides to pursue vocational Christian ministry (but not full-time Christian missions), my Trustee is authorized to distribute to or for the benefit of the beneficiary additional amounts from the beneficiary’s trust as may be reasonably necessary or desirable to augment the beneficiary’s earned income.

(3)  Charitable Gifts

I believe in the life-changing power of the Gospel of Jesus Christ, and I believe that every believer has a duty to financially support the work of God and the furtherance of the Gospel, and I want to empower my beneficiaries to work together and make charitable contributions to Christian charities.  Therefore, my Trustee shall coordinate with my beneficiaries for the purpose of facilitating charitable gifts to any Christian charitable organization that my beneficiaries shall agree upon, and shall make distributions to such Christian charities as reasonably directed by the beneficiaries.  My beneficiaries shall agree upon the amount of any such charitable gifts from the beneficiaries’ trusts, and must agree upon the charitable recipients of any such distribution.

(4)  Educational Provisions

We believe that increasing one’s knowledge is a vital key to success and happiness.  We recognize that not all of our heirs have the same aspirations or abilities, but we want to encourage each to be the best that they can in whatever their chosen course of life.  Therefore, we instruct our Trustees to be liberal in advancing funds to those heirs that have a genuine desire to improve their lot in life through education.  The Trustees are empowered to use their best judgment with respect to fund requests for education or training.

(a)  Primary and Secondary Education

If the guardian of a beneficiary determines that it is in the best interest of the beneficiary to enroll in a private elementary, junior or senior high school, then my Trustee is authorized – to the extent determined to be reasonable as agreed upon by my Trustee and the guardian of the beneficiary – to make distributions on behalf of the beneficiary for books, tuition and enrollment fees at the private school or schools as agreed upon by my Trustee and the guardian of the beneficiary.

(b)  Provisions for First Bachelor’s Degree

My Trustee shall pay the cost of books, tuition and fees, and room and board at any nationally-accredited public or private college or university a beneficiary chooses to attend, so long as the beneficiary remains enrolled as a full time student and remains in good academic and disciplinary standing, as defined by the educational institution the beneficiary is attending.

At any time after a beneficiary has commenced a course of study at an accredited college or university with the objective of obtaining a bachelor’s degree in a subject which the trustees, in their discretion, deem reasonably likely to prepare the beneficiary for financial self-sufficiency, the trustees may make a single, lump-sum distribution to the beneficiary from his or her trust of an amount not to exceed $

[** Option 1]. The trustee may also make this one time distribution to a beneficiary who does not satisfy the foregoing requirements, but who has commenced a course of study or training which the trustees, in the trustee’s discretion, determine to be reasonably equivalent to the pursuit of a bachelor’s degree in light of all of the facts and circumstances, including the beneficiary’s abilities or disabilities and the beneficiary’s career goals. The distribution described in this paragraph may be made to the beneficiary no more than once during his or her lifetime.

If at any time the beneficiary ceases to be enrolled as a full time student or fails to be in good academic or disciplinary standing, distributions to the beneficiary under this provision shall

[**Option 1] cease.  If the beneficiary returns to full time enrollment and good academic and disciplinary standing within one year, my Trustee is directed to resume the distributions under this provision.

[**Option 2] continue for a one-semester “grace period.”  During the grace period, my Trustee may require the beneficiary to receive tutoring and/or academic or other counseling as provided or recommended by the educational institution or by one or more of the beneficiary’s professors prior to making any education-related distributions to or for the beneficiary.

If after the one-semester grace period the beneficiary returns to returns to full time enrollment and good academic and disciplinary standing, my Trustee shall resume the education-related distributions under this provision.

If after the one-semester grace period the beneficiary does not return to good academic and disciplinary standing, my Trustee is authorized to suspend education-related distributions to or for the beneficiary; however, my Trustee shall continue to pay the reasonable expenses of any tutoring or counseling as requested by the beneficiary.

[**End of Option 2]

In exercising discretion as to the amount and method of any distribution under this provision, my Trustee may either make distributions to the beneficiary, or directly to the educational institution or other party providing the service to the beneficiary.

Except in cases of extreme hardship, nothing in this provision shall be construed to permit the payment of education-related expenses to or for a beneficiary for a period of time longer than that period estimated by the educational institution for the time in which the beneficiary’s selected course of study can be completed by a full-time student.  Furthermore, nothing in this provision shall be construed in such a way as would encourage any beneficiary to seek multiple bachelor’s degrees.

At the end of each academic year that a beneficiary is engaged in a course of study at an accredited college or university with the objective of obtaining a bachelor’s degree in a subject which the trustee, in the trustee’s discretion, deems reasonably likely to prepare the beneficiary for financial self-sufficiency, if the beneficiary has maintained a grade point average of at least [** Option 1] on a grading scale that provides a 4.0 for an “A” average (or the equivalent on a different grading system), and if such beneficiary is pursuing his or her education on a full time or substantially full time basis, the trustee may make a lump-sum distribution to the beneficiary of an amount not to exceed $[** Option 1]. In determining the amount distributed under this paragraph, the trustees may take into consideration, for example, the quality of the educational institution, the difficulty of the beneficiary’s curriculum, and any special challenges the beneficiary may have faced during the academic year.

At any time after a beneficiary has received a bachelor’s degree from an accredited college or university, or such other degree or certification as the trustees, in their discretion, shall deem reasonably equivalent to the attainment of a bachelor’s degree in light of all of the facts and circumstances, including such beneficiary’s abilities or disabilities, or the beneficiary’s career goals, and if the beneficiary has completed his or her education with a final grade point average of at least [** Option1] on a grading scale that provides a 4.0 for an “A” average (or the equivalent on a different grading system) the trustee may make a single, lump-sum distribution to the beneficiary from his or her trust of an amount not to exceed $. In determining the amount to be distributed under this paragraph, the trustees may take into account, for example, the degree of difficulty of the beneficiary’s curriculum, the beneficiary’s grade point average, any academic honors received by the beneficiary, and any special challenges faced by the beneficiary. The distribution described in this paragraph may be made to the beneficiary no more than once during his or her lifetime.

(c)  Distribution Upon Receiving an Advanced Degree

At any time after a beneficiary has received an advanced degree (such as a master’s degree, a PhD, an MBA or a professional degree) from an accredited university, or such other educational achievement as the trustees, in their discretion, shall deem reasonably equivalent thereto in light of all of the facts and circumstances, including such beneficiary’s abilities or disabilities, the trustees may make a single, lump-sum distribution to the beneficiary from his or her trust of an amount not to exceed THIRTY-FIVE THOUSAND DOLLARS ($35,000). The distribution described in this paragraph may be made to the beneficiary no more than once during his or her lifetime.

If the beneficiary obtains a bachelor’s degree from a nationally accredited 4-year university within 5 years from the date of first enrollment, I direct that my Trustee distribute $[**Option 3] to the beneficiary, free of trust.  If the beneficiary graduates with honors, I direct that my Trustee distribute an additional $<?> to the beneficiary, free of trust.  If the beneficiary graduates among the top five students in the beneficiary’s graduating class, I direct that my Trustee distribute an additional $[**Option 4] to the beneficiary, free of trust.

Notwithstanding any provision herein to the contrary, nothing in this provision shall be construed in such a way as would encourage any beneficiary to seek multiple bachelor’s degrees.

(d)  Provision for First Graduate Degree

If the beneficiary decides to pursue a graduate degree at any nationally accredited college or university, I direct that my Trustee pay the cost of books and tuition and make reasonable rent or mortgage payments for the beneficiary so long as the beneficiary remains enrolled as a full time student and remains in good academic and disciplinary standing.  If the beneficiary ceases to be enrolled as a full time student and or fails to be in good academic and/or disciplinary standing, distribution to the beneficiary under this provision shall cease.  If the beneficiary returns to full time enrollment and good academic and disciplinary standing within one year, my Trustee is directed to resume the distributions under this provision.

If the beneficiary graduates in the top [** Option 5] % of the beneficiary’s graduating class, I direct that my Trustee distribute $[** Option 6] to the beneficiary, free of trust.  If the beneficiary graduates among the top [** Option 7] students in the beneficiary’s graduating class, I direct that my Trustee distribute an additional $[** Option 8]  to the beneficiary free of trust.

Notwithstanding any provision herein to the contrary, nothing in this provision shall be construed in such a way as would encourage any beneficiary to seek multiple graduate degrees.

(5)   Additional Distributions to Offset Educational Expenses for Children of a Beneficiary

If at any time a beneficiary entitled to receive distributions under this provision has one or more dependent children enrolled in and attending college on a full-time basis, my Trustee may, upon proof of payment issued by the institution, reimburse actual costs and expenses of books, tuition and enrollment fees incurred by the beneficiary on behalf of the beneficiary’s dependent child up to a 3.5% unitrust amount from the beneficiary’s share.

(6)  Marriage Gifts

In keeping with the tradition that the family of the bride bears such expenses, my Trustee is directed to pay for reasonable and customary expenses associated with the first wedding of a female beneficiary.  As has been our family custom, I encourage the beneficiary to use modesty and discretion in coordinating her wedding plans; however, my Trustee shall not unreasonably withhold or limit the amount made available to the beneficiary under this provision.

At the first marriage of a beneficiary, I direct that my Trustee distribute to the beneficiary $[** Option 9] adjusted for inflation using 2011 as the base year according to a commonly accepted cost of living index, free of trust.

(7)  Purchase and Maintenance of Residence

My Trustee is authorized to purchase and maintain residential real property for a beneficiary.  Any residential property purchased for the use of the beneficiary shall remain trust property, and no beneficiary shall be required to pay rent or otherwise financially contribute financially to the use or maintenance of such residential property.  This provision shall not be limited to a beneficiary’s primary residence; my Trustee’s discretion extends to vacation or recreational real property for my beneficiaries as well.

(8)  Assisting with Adoption Expenses

If a beneficiary has a strong interest in the adoption of children, it is my desire to promote the value of adoption among the beneficiaries of my trust.  In furtherance of this objective, if a beneficiary wishes to adopt any child (or children), from the United States or any foreign country, my Trustee is authorized to distribute to or as directed by a beneficiary such amounts from the beneficiary’s trust as are reasonably necessary to facilitate the adoption, up to and including the full payment of legal and administrative fees and travel expenses associated with the adoption.  If the beneficiary is married at the time, my Trustee is also authorized to pay adoption-related legal, administrative, and travel expenses for the beneficiary’s spouse.

(9)  Income Matching

My Trustee is authorized to pay to or apply for the benefit of a beneficiary named under this Article, an amount from the net income or up to a [**Option 10 5% would be a common maximum amount]% unitrust amount of such beneficiary’s trust share equal to wages, salaries and tips earned by the beneficiary as indicated on such beneficiary’s form W-2 and/or schedule C in annual or other convenient installments as agreed upon by the beneficiary and my Trustee.

If a beneficiary has children of a marriage and decides that it is in the best interests of such beneficiary’s family that either the beneficiary or such beneficiary’s spouse stays home to care for such beneficiary’s children and not work outside the home, my Trustee is specifically authorized to pay to or apply for the benefit of the beneficiary, an amount of the net income or up to a [**Option 11 5% would be a common maximum amount]% of such beneficiary’s trust share equal to wages, salaries and tips earned by the beneficiary or such beneficiary’s spouse (whichever is greater) as evidenced by the working spouse’s form W-2 and/or schedule C in annual or other convenient installments as agreed upon by the beneficiary and my Trustee.

(10)  Distributions to Assist in Starting a Business

At any time after a beneficiary has attained at least [** Option1] years of age, upon the request of the beneficiary, the trustee may contribute to the beneficiary’s maintenance and support, but are not required to do so, by assisting the beneficiary to commence a business or profession in which the beneficiary will be employed on a full-time or a substantially full-time basis, alone or with others.  Such assistance may be in the form of a loan (with or without interest or security), an outright distribution, an investment by the trustees in the proposed endeavor, or any combination thereof.  Before making a distribution to or for the benefit of the beneficiary, the trustees, or persons selected by the trustees, shall meet or otherwise confer with the beneficiary to establish a realistic business plan in order to determine the likelihood that the beneficiary will become financially self-supporting through the proposed endeavor, the timing and amounts of distributions from the beneficiary’s trust that would be required to insure the success of the proposed endeavor, and whether such amounts would be reasonable in light of the risk of failure of the proposed endeavor, the remaining assets of the trust, and any other factors which the trustees deem reasonable under the circumstances. The trustee is discouraged from making a distribution under this Section to or for the benefit of any beneficiary who fails to cooperate with the trustee in establishing a realistic business plan for the proposed endeavor.

(11)  Vehicle Provisions

When a beneficiary named under this section attains the age of sixteen, I direct that my Trustee purchase a late model used vehicle for the beneficiary’s use and enjoyment.  When selecting a model, my Trustee should be particularly mindful to make safety and economy of primary importance.

When a beneficiary under this section graduates from High School, I direct that my Trustee purchase a new vehicle for the use and enjoyment of the beneficiary.  When selecting a model, my Trustee is to be particularly mindful to make safety of primary importance.

I direct that my Trustee be responsive to the beneficiary’s needs and desires concerning provision for an automobile and for necessary insurance, maintenance and repairs as needed and as requested by the beneficiary from time to time

The vehicle shall be titled in the name of the beneficiary, the beneficiary’s parent(s) or guardian and shall not be trust property..

(12)  Matching Charitable Gifts

My Trustee shall pay to or apply for the benefit of the charitable organization of such beneficiary’s choice, an amount of the net income or up to a [** Option 12] % unitrust amount of such beneficiary’s trust share equal to the greater of $500 or the amount reported as gifts to charity on such beneficiary’s income tax return.  If the beneficiary does not itemize deductions on her income tax return, I direct that my Trustee contribute $500 on behalf of the beneficiary to the charitable organization of the beneficiary’s choice.

(13)  Family Vacations

I believe that the relationships among my family have been greatly enhanced by time we spent vacationing together.  To extend the relationship-building benefits of family vacations, my Trustee is authorized to distribute to or as directed by a beneficiary such amounts from the beneficiary’s trust as are reasonably necessary to enable the beneficiary to take annual family vacations.

(14)  Business Opportunities

In the event a beneficiary wishes to start a business, either alone or in conjunction with one or more partners, my Trustee is authorized to distribute to or as directed by a beneficiary reasonable amounts necessary to assist the beneficiary with start up and initial operating expenses.  However, my Trustee may require the beneficiary to prepare and present a formal business plan and may require the beneficiary to obtain a written opinion of a Certified Public Accountant or other licensed business advisor (as selected by agreement among the beneficiary and my Trustee) certifying that the beneficiary’s proposed enterprise is economically advisable prior to making such distributions to the beneficiary.

(15)  Long Term Saving

In order to encourage our beneficiary to consciously set aside money periodically for the purpose of providing for the beneficiary’s own financial security and for the financial security of those dependent upon the beneficiary, our Trustee is specifically authorized to match up to [** Option 13]% of the beneficiary’s voluntary contributions to any savings or investment device structured for long-term savings.  In determining whether to make such matching contribution, our Trustee shall consider the probability of such beneficiary’s withdrawal of such contributed amount, the regularity with which such beneficiary tends to contribute to long-term savings and such other factors as our Trustee deems reasonable or appropriate.

(16)  Gainful Employment

My Trustee is directed to be conservative in exercise of trustee discretion and may retain net income, principal or both, in whole or in part, if, in its sole and absolute discretion, a beneficiary is able to work, but is not gainfully employed and cannot provide independent support.  “Independent support” shall be satisfied at such time as the beneficiary has been gainfully employed for twenty-one months of a twenty-four-month period immediately preceding the decision to exercise liberal discretion.  The terms “gainful employment” and “gainfully employed” shall be construed to mean full-time or part-time employment that produces sufficient net income to enable the beneficiary to contribute not less than 100 percent of the funds (exclusive of other sources of revenue) needed by the beneficiary to provide for the beneficiary’s basic independent care, support and maintenance, but not education.

My Trustee, in trustee’s sole discretion, shall be the sole judge as to whether or not a beneficiary has satisfied the condition of gainful employment, and my Trustee may waive the fulfillment of said condition of gainful employment if my Trustee, in its discretion, determines that beneficiary has been unable to satisfy said condition because of physical illness, injury, or economic recession or depression, or he has reached an age of customary retirement.

(17)  Christian Missions, Ministry Activities

To the greatest degree possible, I wish to encourage my beneficiaries to be actively involved in Christian Missions.  Moreover, I believe that mission experiences are greatest when shared with a spouse or close friend.  Therefore, my Trustee is directed to provide for distributions to or as directed by the beneficiary to enable the beneficiary to attend periodic mission trips.  If the beneficiary wishes to enable a companion to attend such mission trips with the beneficiary, then my Trustee is expressly authorized to make scholarship money available to the beneficiary’s companion, if needed, and as requested by the beneficiary.

If a beneficiary decides to pursue full-time Christian missions, my Trustee is authorized to distribute to or for the benefit of the beneficiary additional amounts from the beneficiary’s trust as may be reasonably necessary to support the beneficiary’s mission activities, up to and including full sponsorship.  If a beneficiary decides to pursue vocational Christian ministry (but not full-time Christian missions), my Trustee is authorized to distribute to or for the benefit of the beneficiary additional amounts from the beneficiary’s trust as may be reasonably necessary or desirable to augment the beneficiary’s earned income.

(18)       Indexing for Inflation

Wherever a specified dollar amount is referred in the foregoing provisions of this Article, such amount shall be increased by the same percentage as the percentage of increase, if any, shown by the All Items Consumer Price Index for Urban Wage Earners and Clerical Workers published by the U.S. Department of Labor, Bureau of Labor Statistics, for the Phoenix, Arizona, area for the month in which this Trust Agreement is signed, as compared with the most recently published Index on the first date that such gift takes effect or such distribution becomes permissible. If such index is no longer published, the Trustee in the trustee’s sole and absolute discretion shall select an appropriate index for the purpose of adjusting such amounts for the effect of inflation since the date this Trust Agreement was signed.


Section 1.02      
Disincentive Trust Provisions

(a)   Provisions that Limit Distributions

The provisions contained in this Section are intended to reduce or eliminate distributions in certain circumstances.  My Trustee is directed to reduce or eliminate distributions to a beneficiary from the beneficiary’s trust in accordance with this section.  In exercising discretion to reduce or eliminate a distribution to any beneficiary under my trust, and in determining the appropriate timing of distributions, my Trustee is directed to follow the guidelines and instructions that follow in my Trustee’s sole discretion.

(1)  Alcohol, Drug Abuse and Sobriety

Our children know that we do not approve of drug and alcohol abuse an dare aware of the heartache that we and other family members have endured because of such abuse.  We have chosen not to be enabling in our lifetime and do not want to be enabling after out death.

We believe one is an abuser when drinking or drug use causes, or has caused problems relating to family life, relationships, marriage, employment or the ability to manage money.

We have given this subject much thought, and want our family to know that we will not support such behavior.  We would prefer our money to support one of the charities that we have supported in our lifetime rather than be wasted by an abuser.

Therefore, we instruct our Trustees to demand that a history and pattern of sobriety be exhibited by anyone entitled to a distribution under this trust.  Distributions shall not be made to anyone not living a clean, sober, drug free life.  Our Trustees may take whatever steps necessary to make this determination, including but not restricted to the appropriate tests presently used for such determination.  We want our Trustees to understand that the simple passage of such a test is not grounds to make distributions, but they should search for convincing evidence that an abuser has altered his or her lifestyle, and has demonstrated a history and pattern of freedom from alcohol and substance abuse.

The Trustees shall tell an abuser what is expected of them to qualify for a distribution under this trust, and shall withhold funds until such time in the future as the Trustees are convinced that the lifestyle has been changed.

While the Trustees shall not make discretionary distributions to abusers, they may make distributions to enroll a beneficiary in a legitimate treatment program, provide lifesaving medical treatment, or assist those that have been affected by the alcohol and/or substance abuse of one of our heirs.

An heir that has not had a history of addictive problems should not construe this provision to prohibit an occasional social drink.  However, it clearly does prohibit any form of drinking or recreational substance abuse by any heir that has previously had or received treatment for alcohol or substance abuse.  Further, it prohibits recreational drug use by any heir.

(a)  Drug and Alcohol Free Requirement

No beneficiary of this trust may receive any distribution from the trust until the beneficiary is drug and alcohol free as defined below.  Only if this condition is met can any distributions be made from a trust, except for emergency medical treatment and then the distribution is to made on behalf of the beneficiary, paid directly to the service provider, and such service provider has to be a fully licensed medical facility or doctor.

The following procedure is to be used to determine that a beneficiary of this trust is sober and drug free.  A beneficiary shall have the right to be tested up to four times during the calendar year, however, never more often than once a quarter.  The testing date for each quarter shall be randomly determined by the Trustee.  A beneficiary must complete the test within 48 hours of notice or be considered not sober and not free from drugs and other substances.

a.      Each test shall be administered at a testing facility of Trustee’s choice.  Said facility shall be a certified drug and alcohol testing facility.

b.      Test results will be reported to Trustee directly by the testing facility.

c.      Trustee may request a hair follicle test to determine long term use of drugs.

d.      Trustee and testing facility will determine an appropriate Alcohol test.  Said test must be an industry standard test.

e.      The Trustee shall pay from the beneficiary’s trust, the costs of any testing, including the cost of travel to and from the testing facility, if any, that may be incurred by the beneficiary in compliance with the testing requirements of this trust.

f.       A sober and free from drugs and other substances period, for trust distribution purposes, is defined as a twelve calendar months starting from the 30th day of the month testing was performed in.  A sober and free from drugs and other substances test is required to establish the start of sober and free from drugs and other substances period.

g.      The first sober and free from drugs and other substances period shall be established upon the completion of the first sober and free from drugs and other substances test.  Subsequent sober and free from drugs and other substances periods will commence at the end of the current sober and free from drugs and other substances period and upon the occurrence of either 1) a single sober and free from drugs and other substances test during the 11th or 12th month of a sober and free from drugs and other substances period, or 2) after a not sober and free from drugs and other substances test, two consecutive sober and free from drugs and other substances tests taken more than ninety-days days apart.

h.      Trustee is free to distribute funds, in accordance with the instructions of this trust, during any period the beneficiary is sober and free from drugs and other substances as defined herein.  During any time frame that the beneficiary fails to test sober and free from drugs and other substances, Trustee is not authorized to distribute funds to the beneficiary for any purpose except for a rehabilitation program as defined in the following paragraph.

The Trustee is authorized to pay for a one-time drug and alcohol rehabilitation program should a beneficiary request treatment.  Failure to complete a program, once started, shall be treated as if the beneficiary is not sober and free from drugs and other substances.  Completion of the program requires proof of attendance and proof of completion, such proof is to be provided to the Trustee directly by the program administrator.

(2)          Alternate Clause for Alcohol, Drug Abuse and Sobriety

If my Trustee reasonably believes that a beneficiary routinely or frequently uses or consumes any illegal substance so as to be physically or psychologically dependent upon that substance, or is clinically dependent upon the use or consumption of alcohol or any other legal drug or chemical substance that is not prescribed by a board certified medical doctor or psychiatrist in a current program of treatment supervised by such doctor or psychiatrist, and if the Trustee reasonably believes that as a result the beneficiary is unable to care for himself or herself, or is unable to manage his or her financial affairs, all mandatory and discretionary distributions (including distributions upon termination of the trust) to the beneficiary, all of the beneficiary’s withdrawal rights, and all of the beneficiary’s rights to participate in decisions concerning the removal and appointment of Trustee will be suspended.  In that event, the following provisions will apply:

The Trustee may request the beneficiary to submit to one or more examinations (including laboratory tests of bodily fluids) determined to be appropriate by a board certified medical doctor and to consent to full disclosure to the Trustee of the results of all such examinations.  The Trustee shall maintain strict confidentiality of those results and shall not disclose those results to any person other than the beneficiary without the prior written permission of the beneficiary.  The Trustee may totally or partially suspend all distributions otherwise required or permitted to be made to that beneficiary until the beneficiary consents to the examination and disclosure to the Trustee.

If, in the opinion of the examining doctor, the examination indicates current or recent use of a drug or substance as described above, the examining doctor will determine an appropriate method of treatment for the beneficiary (for example, counseling or treatment on an in-patient basis in a rehabilitation facility) that is acceptable to the Trustee.  If the beneficiary consents to the treatment, the Trustee shall pay the costs of treatment directly to the provider of those services from the distributions suspended under this provision.

The Trustee may resume other distributions to the beneficiary (and the beneficiary’s other suspended rights will be restored) when, in the case of use or consumption of an illegal substance, examinations indicate no such use for twelve months and, in all cases, when the Trustee in his or her discretion determines that the beneficiary is able to care for himself or herself and is able to manage his or her financial affairs.

When other distributions to the beneficiary are resumed, the remaining balance, if any, of distributions that were suspended may be distributed to the beneficiary at that time.  If the beneficiary dies before distribution of those suspended amounts, the Trustee shall distribute the balance of the suspended amounts to the persons who would be the alternate takers of that beneficiary’s share as otherwise provided in this Trust.

No Trustee (nor any doctor retained by the Trustee) will be responsible or liable to anyone for a beneficiary’s actions or welfare.  The Trustee has no duty to inquire whether a beneficiary uses drugs or other substances as described in this article.  The Trustee (and any doctor retained by the Trustee) is to be indemnified from the Trust Estate and held harmless from any liability of any nature in exercising his or her judgment and authority under this article, including any failure to request a beneficiary to submit to medical examination, and including a decision to distribute suspended amounts to a beneficiary.

(3)          Distributions to Substance Abusers

Notwithstanding anything herein to the contrary, in making distributions to or for the benefit of any beneficiary whom the trustee believes may have substance abuse problems, we request that the trustee limit distributions to such beneficiary to those which the trustee deems necessary to insure that such beneficiary’s basic living requirements are met. In making distributions for the basic health and maintenance needs of a beneficiary with substance abuse problems, the Trustees are requested, to the extent practicable, to make payments directly to persons or organizations who are furnishing housing, utilities, health care (including health care insurance), and other basic goods and services to the beneficiary, rather than make distributions directly to the beneficiary.

(4)          Withholding Distributions to a Beneficiary Not Engaged in Productive Activities

Notwithstanding any provision of this Trust Agreement to the contrary, the Trustee may withhold any distributions of income or principal to, or for the benefit of, any beneficiary of a trust administered under the provisions of this Article who is engaged in unproductive activities or to whom a distribution would otherwise be unwise. In reaching such a determination, the Trustee may consider, for example:

(a) whether the beneficiary is seriously pursuing an education that will enable the beneficiary to obtain gainful employment commensurate with his or her abilities;

(b) whether the beneficiary is working to support himself or herself in a manner commensurate with his or her abilities (even if such beneficiary’s chosen career does not produce substantial income but makes a productive contribution to the community);

(c) whether the beneficiary is working in the home as a parent in the care of such beneficiary’s children or other family members;

(d) whether the beneficiary is free of substance abuse or other negative addictive behavior;

(e) whether the beneficiary is capable of managing money in a responsible manner as demonstrated by past conduct;

(f) whether distribution to the beneficiary would serve to benefit such beneficiary’s creditors, including former spouses, rather than the beneficiary; and

(g) if the circumstances warrant, whether the beneficiary is involved in activities which promote the welfare of others or of the community as a whole.

The trustee’s determination as to whether distributions should be withheld as to a particular beneficiary pursuant to the provisions of this Section shall be final and binding upon all persons interested in the trust estate. The Trustee shall not be liable to the beneficiary or to anyone else for the Trustee’s decision to make or withhold any distribution to a beneficiary.

(5)          Stewardship

In our lives we have tried not to judge any person by how much money they make or have, or their social position.  We have however tried to evaluate people on how they have used their God given talents; how they have managed, or failed to manage their resources, whether mental, spiritual or material; and what, if anything, they have tried to do to make the world a little better because they have been here.  We call this “stewardship.”  So be it also in our deaths.

Therefore, we ask our Trustees to exercise good judgment in the distribution of our assets.  The Trustees may be more liberal in distributions to those heirs that have demonstrated good “stewardship” and more restrictive to those that have not.  The Trustees are fully within their rights to inquire into past stewardship, request documentation or explanation into the intent and proposed plans for funds received under this trust and in anyway make the necessary determination that funds will be handled wisely and not squandered.  In the event that the Trustees restrict or limit distribution of funds, they should tell the heir why and what must be done to remedy the situation.

(6)          Marriage

We believe in the sanctity and permanence of marriage.  Marriage should be entered thoughtfully, slowly and deliberately, and with a commitment to make it work.  A successful marriage takes much hard work and faces many trials along the way.  For the benefit of the participants and children, we believe that every effort should be made to save a marriage including but not restricted to spiritual and conventional counseling.

We instruct our Trustees to be more liberal in distributions to heirs that are making efforts to strengthen their marriage and to be more restrictive to those that have troubled marriages or who are divorced.

For the purpose of judging the appropriateness of distributions, our Trustees have every right to inquire and form their opinion on the soundness, logic and rationale of a second marriage.  They may require prenuptial agreements as allowed under Arizona law.

(7)          Faith/Religion

We believe that a strong faith in God has been beneficial in all aspects of our lives.  Further, we believe that faith in God does not grow in a vacuum, and must be nurtured by participation in organized church activities.  Hence, we hope that all of our heirs will be active participants in the services and ministries of their Christian Church.  We further hope and expect that our heirs will raise their children in the same manner.

Therefore, we authorize our Trustees to be more liberal in distributions to heirs that have exhibited a history and pattern of Church participation for themselves and their children, and to be more restrictive to heirs that have not demonstrated this pattern.

(8)          Future Behaviors Detrimental to a Productive, Christian Lifestyle

We recognize that as times change, so do fads, habits, addictions and obsessive behaviors.  We therefore urge diligence on the part of our Trustees to be aware of the lifestyle and behaviors of our heirs.  If an heir is participating in activities or behaviors detrimental to a productive, Christian lifestyle, the Trustees may take the same actions as outlined in other value issues such as drug and alcohol abuse.