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HomeMy WebLinkAbout976963 976963 6/9/2014 2:15 PM LINCOLN COUNTY FEES: $54.00 PAGE 1 OF 15 BOOK: 833 PAGE: 723 AFFIDAVIT JEANNE WAGNER, LINCOLN COUNTY CLERK 111111111111 1111 111111 11111 II Hi 1111111 I 11111111 1111111111111111111111 TRUSTEE SUCCESSION AFFIDAVIT STATE OF WYOMING ss. COUNTY OF TETON The undersigned, Dan Marvin Bess, being first duly sworn, upon his oath, deposes and says as follows: 1. Thomas M. Bess, also known as T.M. Bess, also known as Dick Bess, established the Thomas M. Bess Living Trust under agreement dated April 17, 1998, as amended July 29, 2013 (the "Trust 2. Dian Bess was the sole serving Trustee of the Trust at her death on February 13, 2014, in Jackson, Teton County, Wyoming, having all power and authority afforded to the trustee pursuant to said Trust and the laws of the State of Wyoming. 3. By reason of the death of Dian Bess, the undersigned, Dan Marvin Bess whose address is P.O. Box 631, Jackson, Wyoming 83001, became the acting successor trustee of the Trust on February 13, 2014, having all power and authority afforded to the trustee pursuant to said trust agreement and the laws of the State of Wyoming. 4. Attached hereto are true and correct copies of pages 1, 11 through 19, and 23 of the Trust, showing the due execution of said Trust, the designation of the undersigned as sole trustee of the Trust upon Dian Bess no longer serving as trustee, and the powers held by the trustee and successor trustee(s). 5. This affidavit is given pursuant to Wyoming Statutes 4 -10 -1014 and 34 -2 -123 with respect to any real estate which may be described on Exhibit A, which may be attached hereto and in which case is incorporated herein by this reference. 6. Thomas M. Bess died on April 10, 2014, in Jackson, Teton County, Wyoming. Attached hereto is a copy of his official death certificate certified by the Vital Statistics Services, Wyoming Department of Health, the public authority with which the original death certificate is of record according to law. 7. The terms of the Trust provide that Dan Marvin Bess is to act as successor trustee and the Trust is to become irrevocable upon the death of Thomas M. Bess. The terms of the Trust further provide that no party other than Thomas M. Bess shall have any power to amend or revoke the Trust, such power exercisable only while Thomas M. Bess is living and has legal capacity. 8. The Trust has not been revoked, modified or amended in any manner that would cause the representations contained in this affidavit to be incorrect. DATED: May 29, 2014 Dan Marvin Bess Subscribed and sworn to before me by Dan Marvin Bess, this 29th day of May, 2014. Witness my hand and official seal. My commission e pires: Li 2 2v Amy Staehr Notary Public Count"' stated SEAL Teton s,4' Wyoming NO AR TLIC My Commission Expires April 2. 2016 TRUSTEE SUCCESSION AFFIDAVIT PAGE 2 4 IIN R 1411 1.R IKC /Y1/ O L120$ �rvw�19 0928396 err "a" RUTPARTOPTHIN BI1NB!{OPMICIION22, 77SN,R11fW,LINCOLNODORM WTOlo%BEKOPARTOFTEAT MC7071 0= DiUNWIICBOFTIMMI K01,LWOW nr�BOOR333OPPN1TOf1'ATICRBOMS OHM=SNONCIA NNOALLOTTNBLWBBBTAT%Damao roUANII: BBO T WT 0,L�LC, AIUDD IVI1flON(WRBCORDAiT1N0I1gCB d.BRK N OPLINOOLN B COUNTY AIPLAT710.'Hi TAAlCBB0U1Ng6411VTBAIT,7 2,12118117 'TOANANOLBPOINTalTNBBAfLBAfa TB8BARBRDtTaR 7110!11 ALONG SAID BAIT BAIOCAB PO12,QW11 NOR1 WBR; ISIA1 ParrTOAPOR �>Cr+1rateBAST, 211A1 PWTTOA PIMONTAB WBfTVONT.OP.VAYU IOarU.L=MAY IN �lCEODDRI RMOSAIDRB]RToNwAYweABPOLLOWR EOUfl1p apor M I i 21< f/ PBII TTOAMARRBIATITATION17�100all 1 LT; NOVIf00 .www o. �tATBTATION17d2110S0,A'LTi taalamDR10NTOrmay OOl1 ��r�RTffiRO/1gT111yB( y{�BIIBDIVIagIIiANO T1W(I2ttant1lV/1 aWBIP,SawPRBT,Malo RBNORTHLINorSAIDLOTITDI(S)TOTHE IOl mD 1 ABTCOM=Cialumtarram (fk MINCI ALONG TR' llaTaRLYBOUNOARY OP BA1D L07'POUa (1) AN FOLLOWS: NOR=2lWtitrnor,41 PUTTOACOIN� NDR7R/1V1 ormor� PE RMA PUT, umOR LB11,T0 T1@CORNBR W 8BDW1= 1 i i i i ti THOMAS M. BESS LIVING TRUST THIS Declaration (hereinafter referred to as the "Declaration is made by Dian Bess (the "Trustee WITNESSETH: WHEREAS, the Trustee has received property to be held in trust pursuant to Wyoming Statute 4 -10 -401 by and through that Memorandum of Trust Distribution dated July 29, 2013, pursuant to such intention, the Trustee wishes to make such declaration with respect to the property described in Schedule A, annexed hereto and made a part hereof; and NOW, THEREFORE, in consideration of the premises and of the covenants herein contained, the Trustee declares that the Trustee shall hold all of the property transferred to her during the lifetime of Thomas M. Bess, IN TRUST (said trust to be known as the Thomas M. Bess Living Trust u/a/d April 17, 1998, as amended July 29, 2013), manage, administer, invest, and reinvest the principal of the trust, collect the income therefrom, and pay over and distribute such income and principal as follows: ARTICLE 1 Family Information Thomas M. Bess (also known as T.M. Bess and as Dick Bess) is married to Dian Bess and any reference to Thomas M. Bess's Wife shall be to her. Thomas M. Bess's children born before the date of this Declaration are Deborah Gabriel and Dan Marvin Bess. ARTICLE 2 Trust Provisions During Lifetime During Thomas M. Bess's life, any property held under this Declaration shall be referred to as "the Trust Estate" and shall be disposed of as follows: 2.1. Distributions. The Trustee shall distribute to Thomas M. Bess as much of the net income and principal of the Trust Estate as Thomas M. Bess may from time to time direct, and such additional amounts of net income or principal thereof as the Trustee may at any time and from time to time determine. 2.2. Undistributed Income. Any net income of the Trust Estate not so distributed shall be accumulated and annually added to principal. ARTICLE 3 Payments After Death Upon Thomas M. Bess's death, the Trustee shall dispose of the Trust Estate which shall include all property distributable to the Trustee as a result of Thomas M. Bess's death, whether under Thomas M. Bess's Will or otherwise (such property shall be referred to as the "Trust Fund as follows: THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 1 E y f 3 13.3. Specific Reference to Code Sections. Thomas M. Bess hereby makes specific reference to Code Secs. 2207A (concerning tax on QTIP property), 2207B (concerning tax on property included under Code Sec. 2036) and 2603(b) (concerning the generation- skipping transfer tax under Chapter 13 of the Code) and to corresponding provisions of state law, and Thomas M. Bess directs that they shall apply to the extent they are consistent with the above and shall not apply to the extent they are inconsistent with the above. 13.4. Apportionment Prevails Over Abatement. If payment of taxes from Thomas M. Bess's Residuary Trust Fund in accordance with the foregoing exhausts the share or shares of Thomas M. Bess's Residuary Trust Fund that generate the tax, the balance of tax due shall first be charged to the Formula Gift, and any balance due after that shall be apportioned in accordance with the rules of tax apportionment rather than the rules of abatement. ARTICLE 14 Trustees 14.1. Appointment of Successor Trustee. Dan Marvin Bess shall serve as Trustee hereunder when all other Trustees previously appointed or acting have failed to qualify or ceased to serve as Trustee. 14.2. Co- Trustees. A Co- Trustee may be appointed by a then serving Trustee (the "appointing Trustee at any time when only one trustee is serving. 14.3. Successor Trustees. If a specific successor Trustee is named to succeed a particular Trustee named in this Article, such specific successor Trustee shall serve as successor as appointed above. In all other cases, a Trustee (the "appointing Trustee may appoint successor Trustees in accordance with this paragraph: 14.3.1. Any trustee serving at any time may appoint a successor trustee to serve when the appointing trustee fails or ceases to serve as trustee. 14.3.2. If an appointing Trustee names a successor Trustee, and if Thomas M. Bess has also named or provided for the appointment of one or more successor Trustees herein, the appointments Thomas M. Bess has made herein shall take priority. 14.3.3. Any appointment of a successor Trustee shall be made by an acknowledged instrument delivered to any and all other Trustees who may then be serving. ARTICLE 15 Fiduciary Provisions 15.1. General Provisions Regarding Changes in Fiduciaries. 15.1.1. In the event that the sole Trustee of a trust is a beneficiary of the trust, the Trustee may appoint, but shall not be required to appoint, a Co- Trustee as provided herein. A beneficiary's interest shall not be merged or converted into a legal life estate or estate for years because the beneficiary is the sole Trustee. If this would still happen under applicable law, then a Co- Trustee shall be appointed in preference to such merger or conversion. 15.1.2. Separate trusts hereunder may have different Trustees. THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 11 15.1.3. To the extent not prohibited by applicable law, any Trustee may resign at any time without court approval, whether or not a successor has been appointed, provided the resigning Trustee complies with any applicable state law governing the resignation of the Trustee that may not be waived by a governing instrument. Such resignation shall be by acknowledged instrument executed by the resigning Trustee and delivered to any other fiduciary (and any Trust Protector) acting hereunder, or if none, to Thomas M. Bess's eldest living descendant (who, if a trustee is resigning, is a beneficiary of the trust of which such trustee is resigning), or if none, then to the guardian of Thomas M. Bess's eldest living descendant (who, if a trustee is resigning, is a beneficiary of the trust of which such trustee is resigning), or, if such descendant is a minor and no guardian for such minor has been appointed and is acting, then to the parent of such descendant or other individual with whom such minor resides. 15.1.4. No successor Trustee shall be personally liable for any act or failure to act of any predecessor Trustee or shall have any duty to examine the records of any predecessor Trustee. A successor Trustee may accept the account rendered and the property delivered to the successor Trustee by or on behalf of the predecessor Trustee as a full and complete discharge of the predecessor Trustee without incurring any liability or responsibility for so doing. The successor Trustee shall be indemnified out of trust property for any and all claims, demands, losses, liabilities, damages and expenses arising from any act or omission of a prior Trustee occurring before the date the trust property was received by the successor Trustee. 15.1.5. If any Trustee is removed, resigns or otherwise ceases to act as Trustee of any trust hereunder, the Trustee shall immediately surrender all records maintained by the Trustee with respect to such trust to the then acting Trustees or, if no other Trustee is then acting with respect to such trust, to the successor Trustee upon receipt of written notice of the designation of the successor Trustee from the person appointing such successor Trustee. 15.2. Accountings and Other Proceedings. 15.2.1. Thomas M. Bess directs that a trust hereunder be subject to independent administration with as little court supervision as the applicable state law allows. The Trustee shall not be required to render to any court annual or other periodic accounts, or any inventory, appraisal, or other returns or reports, except as required by applicable state law. The Trustee shall take such action for the settlement or approval of accounts at such times and before such courts or without court proceedings as the Trustee shall determine. The Trustee shall pay the costs and expenses of any such action or proceeding, including (but not limited to) the compensation and expenses of attorneys and guardians, out of the property of the trust. The Trustee shall not be required to register any trust hereunder except as required by law. 15.2.2. Thomas M. Bess directs that in any proceeding relating to a trust hereunder, service upon any person under a legal disability need not be made when another person not under a disability is a party to the proceeding and has the same interest as the person under the disability. The person under the disability shall nevertheless be bound by the results of the proceeding. The same rule shall apply to non judicial settlements, releases, exonerations and indemnities. 15.3. Fiduciary to Fiduciary Self Dealing. Except to the extent a restraint on self dealing may not be waived under applicable local law by a governing instrument, Thomas M. Bess authorizes any Trustee acting hereunder, without court approval or notice, (i) to purchase or otherwise acquire assets from and (ii) to sell, transfer, exchange or loan any assets to any trust of THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 12 which such Trustee is acting as a trustee and /or any estate of which such Trustee is acting as a Personal Representative in any manner, at any time or times, and upon such terms, credits and conditions as the Trustee may deem advisable notwithstanding that such participation otherwise may be an act of self dealing under applicable state law. 15.4. Continuation of Trustee's Powers. Powers granted to the Trustee hereunder or by applicable law shall continue with respect to all property held hereunder to be exercisable by the Trustee until property is actually distributed to a beneficiary. By way of illustration and not by way of limitation, the Trustee may invest and reinvest and take all investment action with respect to property that has been directed to be distributed and notwithstanding any direction that the property be distributed "as it is then constituted" until such property is actually distributed. 15.5. Additional General Provisions Regarding Fiduciaries. 15.5.1. "Interested Trustee" means, for any trust, a Trustee who is (i) a transferor of property to the trust, including a person whose qualified disclaimer resulted in property passing to the trust; or (ii) a person who is, or in the future may be, eligible to receive income or principal pursuant to the terms of the trust. A Trustee described in (i) is an Interested Trustee only with respect to the transferred property (including income and gain on, and reinvestment of, such property). A person is described in (ii) even if he or she has a remote contingent remainder interest, but is not described in (ii) if the person's only interest is as a potential appointee under a non fiduciary power of appointment held by another person, the exercise of which will take effect only in the future, such as a testamentary power held by a living person. A Trustee who is not an Interested Trustee is a "Disinterested Trustee." 15.5.2. Under this Declaration, if two or more separate trusts with the same beneficiaries and same terms are created, either by direction or pursuant to the exercise of discretion, Thomas M. Bess intends that the separate trusts may but need not have the same investments and may, but need not, follow the same pattern of distributions. The Trustee's powers shall be exercisable separately with respect to each trust. 15.5.3. Except to the extent, if any, specifically provided otherwise in this Declaration, references to the Trustee shall, in their application to a trust hereunder, refer to all those from time to time acting as Trustee and, if two Trustees are eligible to act on any given matter, they shall act unanimously, and if more than two Trustees are eligible to act on a given matter, they shall act by majority. In the exercise of discretion over distributions, if this Declaration provides that certain Trustees may participate in distributions limited by an ascertainable standard while a different set of Trustees may participate in distributions for any purpose, if the two sets of Trustees (each acting by its own majority) want to distribute the same item of income or principal to different recipients, the distribution desired by the set of Trustees participating in distributions for any purpose shall prevail. 15.5.4. No Trustee shall be liable to anyone for anything done or not done by any other Trustee or any beneficiary. 15.5.5. The fact that a Trustee is active in the investment business shall not be deemed a conflict of interest, and purchases and sales of investments may be made through a corporate Trustee or through any firm of which a corporate or individual Trustee is a partner, member, shareholder, proprietor, associate, employee, owner, subsidiary, affiliate or the like. Property of a trust hereunder may be invested in individual securities, mutual funds, partnerships, THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 13 LLCs, private placements or other forms of investment promoted, underwritten, managed or advised by a Trustee or such a firm. 15.5.6. The Trustee may employ and rely upon advice given by investment counsel, delegate discretionary investment authority over investments to investment counsel and pay investment counsel reasonable compensation in addition to fees otherwise payable to the Trustee, notwithstanding any rule of law otherwise prohibiting such dual compensation. The Trustee may, but need not, favor retention of assets originally owned by Thomas M. Bess. The Trustee shall not be under any duty to diversify investments, regardless of any rule of law requiring diversification, and any such duty is hereby waived. The Trustee may retain and acquire property that does not produce income, subject to any restrictions or qualifications of this power set forth elsewhere in this Declaration. 15.5.7. The fact that a Trustee (or a firm of which a Trustee is a member or with which a Trustee is otherwise affiliated) renders legal or other professional services to a trust hereunder shall not be deemed a conflict of interest, and the Trustee may pay fees for such services to such Trustee or firm without prior approval of any court or any beneficiary, whether or not there is a Trustee to approve such payment. An attorney or other Trustee who also renders professional services shall receive full compensation for both services as a Trustee and the professional services rendered, except as specifically limited by law. 15.5.8. No state law restraint on acts of self dealing by a fiduciary shall apply to a Trustee who is Thomas M. Bess's Wife or a descendant of Thomas M. Bess, except to the extent (but only to the extent) such restraint may not be waived under applicable local law by a governing instrument. Except when prohibited by another provision of this Declaration, such Trustee may enter into transactions on behalf of a trust hereunder in which that Trustee is personally interested so long as the terms of such transaction are fair to the trust. For example, such Trustee may purchase property from the trust at its then fair market value without court approval. 15.5.9. If Thomas M. Bess has given the Trustee 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 Declaration. If Thomas M. Bess has 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 Thomas M. Bess's strong belief that the Trustee will be in the best position to interpret and carry out the intentions expressed herein under changing circumstances. This paragraph 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 Code Sec. 2041(b), 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 Interested Trustee. THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, I998, AS AMENDED JULY 29, 2013 PAGE 14 15.5.10. Notwithstanding any other provision of this Declaration, 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 Declaration, 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 Code Sec. 2041(b), 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. 15.5.11. A Trustee may irrevocably release one or more powers held by the Trustee while retaining other powers. 15.5.12. Any Trustee may delegate to a Co- Trustee any power held by the delegating Trustee, but only if the Co- Trustee is authorized to exercise the power delegated. A delegation may be revocable, but while it is in effect the delegating Trustee shall have no responsibility concerning the exercise of the delegated power. 15.5.13. Unless Thomas M. Bess has specifically provided otherwise, and subject to any ascertainable standard governing its exercise for Federal tax purposes under Code Sec. 2041(b), the Trustee's discretionary power to distribute income or principal includes the power to distribute all of such income and/or principal to one or more members of a class to the exclusion of others, whether or not the terms of the trust specifically mention that possibility. 15.6. Waiver of Bond. No Trustee shall be required to give bond or other security in any jurisdiction and, if despite this exoneration, a bond is nevertheless required, no sureties shall be required. ARTICLE 16 Governing Law and Trustee Powers The interpretation and operation of the trust shall be governed by the laws of the State of Wyoming. The Trustee may, without prior authority from any court, exercise all powers conferred by this Declaration or by common law or by any fiduciary powers act or other statute of the State of Wyoming or any other jurisdiction whose law applies to the trust. The Trustee shall have sole and absolute discretion in exercising these powers. Except as specifically limited by this Declaration, these powers shall extend to all property held by the Trustee until actual distribution of the property. The powers of the Trustee shall include the following: 16.1. Allocate Receipts and Disbursements. The Trustee (excluding, however, any Interested Trustee) may allocate receipts and disbursements, to income or principal in such manner as the Trustee (excluding, however, any Interested Trustee) shall determine, even though a particular allocation may be inconsistent with otherwise applicable state law. 16.2. Security Interests. The Trustee may grant security interests and execute all instruments creating such interests upon such terms as the Trustee may deem advisable. 16.3. Tax Elections and Allocations. The Trustee may make all tax elections and allocations the Trustee may consider appropriate, including any election to treat this revocable THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 15 trust as part of Thomas M. Bess's estate for income tax purposes, even though a Trustee may have an interest affected by the election, except where a Trustee is prohibited from participating in the election by another provision of this Declaration; provided, however, this authority is exercisable only in a fiduciary capacity and may not be used to enlarge or shift any beneficial interest except as an incidental consequence of the discharge of fiduciary duties. Tax elections and allocations made in: good faith shall not require equitable adjustments. 16.4. Division and Distribution of The Trust Fund. The Trustee may divide and distribute the assets of the Trust Fund in kind, in money, or partly in each, without regard to the income tax basis of any asset and without the consent of any beneficiary. The decision of the Trustee in dividing any portion of the Trust Fund between or among multiple beneficiaries shall be binding on all persons. 16.5. Determinations About Property. The Trustee may determine what property is covered by general descriptions contained in this Declaration. 16.6. Investment Responsibility. The Trustee may retain any property originally owned by Thomas M. Bess and invest and reinvest in all forms of real and personal property, whether inside or outside the United States, including, without limitation, common trust funds of a corporate Trustee, mutual funds, partnerships (including a partnership in which a Trustee is a partner) and other forms of joint investment (which may but need not be managed by, advised by or affiliated with a Trustee), without regard to any principle of law limiting delegation of investment responsibility by the Trustee. 16.7. Compromise Claims or Debts. The Trustee may compromise claims or debts and abandon or demolish any property which the Trustee shall determine to be of little or no value. 16.8. Borrowings. The Trustee may borrow from anyone, even if the lender is a Trustee under this Declaration, and may pledge property as security for repayment of the funds borrowed, including the establishment of a margin account. No Trustee shall be personally liable for any such loan, and such loan shall be payable only out of assets of the trust. 16.9. Sale or Exchange of Property. The Trustee may sell property at public or private sale, for cash or upon credit, exchange property for other property, lease property for any period of time and give options of any duration for sales, exchanges or leases. The Trustee may give such warranties or indemnifications as the Trustee may deem advisable. 16.10. Distributions as Paid from Capital Gains. The Trustee (other than any Interested Trustee and other than Thomas M. Bess) may deem, within the meaning of Reg. §1.643(a) -3(e), any discretionary distribution of principal as being paid from capital gains realized during the year. The Trustee (other than any Interested Trustee and other than Thomas M. Bess) may take any action that may be necessary in order for such deeming to be respected for tax purposes. 16.11. Distributions in Cash or Kind. The Trustee may, without the consent of any beneficiary, distribute in cash or in kind, and allocate specific assets in satisfaction of fractional shares or pecuniary sums among the beneficiaries (including any trust) in such proportions, not necessarily pro rata, as the Trustee may determine, even though a Trustee has an interest affected by the distribution and even though different beneficiaries entitled to the same sum or share may thereby receive different mixes of assets, possibly with different income tax bases, as long as the THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 16 fair market value of property on the date of distribution is used in determining the extent to which any distribution satisfies a sum or share. 16.12. Application of Property. The Trustee may apply to the use of any individual, any property whether principal or income, that otherwise would or could be distributed directly to such individual. 16.13. Improvements to Property. The Trustee may, with respect to any real property: (i) partition, subdivide or improve such property and enter into Declarations concerning the partition, subdivision, improvement, zoning or management of any real estate in which a trust hereunder has an interest and impose or extinguish restrictions on any such real estate; (ii) sell, exchange, lease for any period, mortgage, alter or otherwise dispose of such property and execute any instrument necessary to do that; and (iii) charge to principal the net loss incurred in operating or carrying non income producing real property. 16.14. Acquisition and Maintenance of Real Property. The Trustee may acquire, hold and maintain any residence (whether held as real property, condominium or cooperative apartment) for the use and benefit of any one or more of the beneficiaries of any trust whenever that action is consistent with the terms of that trust, and, if the Trustee shall determine that it would be in the best interests of the beneficiaries of that trust (and consistent with the terms of that trust) to maintain a residence for their use but that the residence owned by that trust should not be used for such purposes, the Trustee may sell said residence and apply the net proceeds of sale to the purchase of such other residence or make such other arrangements as the Trustee shall deem suitable for the purpose. Any proceeds of sale not needed for reinvestment in a residence as provided above shall be added to the principal of that trust and thereafter held, administered and disposed of as a part thereof. The Trustee may pay all carrying charges of such residence, including, but not limited to, any taxes, assessments and maintenance thereon, and all expenses of the repair and operation thereof, including the employment of household employees (including independent contractors) and other expenses incident to the running of a household for the benefit of the beneficiaries of that trust. Without limiting the foregoing, the Trustee may permit any income beneficiary of any trust created hereunder to occupy any real property or use any personal property forming a part of that trust on such terms as the Trustee may determine, whether rent free or in consideration of payment of taxes, insurance, maintenance and ordinary repairs or otherwise. In the case of any trust created under this Declaration that qualifies for the marital deduction, such occupancy shall be rent free and any other condition shall be consistent with the intention that Thomas M. Bess's Wife have that degree of beneficial enjoyment of the trust property during life which the principles of the law of trusts accord to a person who is unqualifiedly designated as the life beneficiary of a trust, so that Thomas M. Bess's Wife's interest is a qualifying income interest for life for purposes of the marital deduction. 16.15. Acquisition and Maintenance of Personal Property. The Trustee may acquire, hold and maintain as a part of each trust hereunder any and all articles of tangible personal property or any other property whether productive, underproductive or unproductive of income, and without any duty to convert such property to productive property, subject, however, to any right of Thomas M. Bess's Wife to demand that any property held in a trust for her be made productive and pay the expenses of the repair and maintenance of such property, and sell such property and apply the net proceeds of sale to the purchase of such other property as the Trustee deems suitable for the purpose. THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 17 16.16. Hold Trusts as Combined Fund. The Trustee may hold two or more trusts hereunder as a combined fund (allocating ratably to such trusts all receipts from, and expenses of, the combined fund) for convenience in investment and administration, but no combination of' trusts for this purpose may alter their status as separate trusts. 16.17. Consolidation of Trusts. The Trustee may merge, combine or consolidate any trust with another trust having the same beneficiaries (excluding contingent beneficiaries), the same Trustee, and substantially similar terms (whether or not under this Declaration) and administer the two as one trust under the terms of one of the trusts, provided that each portion of the merged, combined or consolidated trust shall terminate and vest in possession no later than the date required for the separate trust from which it came. Without in any way limiting the discretion of the Trustee granted by this paragraph, Thomas M. Bess envisions that the Trustee will not elect to merge, .combine, or consolidate two or more trusts with different inclusion ratios for generation skipping transfer tax purposes. 16.18. Loans. The Trustee may make loans to, may buy property from, and generally shall have the power to make contracts with Thomas M. Bess's estate or Thomas M. Bess's Wife's estate or the trustee of any trust subject to any wealth transfer tax upon either of their deaths, regardless of the fact that one or more or all of the persons serving as Trustee hereunder are also serving as a selling or borrowing or otherwise contracting Personal Representative or Trustee; provided that such loans shall be for adequate interest and shall be adequately secured, and such purchases shall be for the property's then fair market value. 16.19. Reliance Upon Advice. The Trustee may employ and rely upon advice given by accountants, attorneys, investment bankers, and other expert advisors and employ agents, clerks and other employees and pay reasonable compensation to such advisors or employees in addition to fees otherwise payable to the Trustee, notwithstanding any rule of law otherwise prohibiting such dual compensation. 16.20. Trustee as Agent. Trustees serving in any jurisdiction in which a corporate trustee is unable to serve as Trustee may use such corporate trustee as an agent to perform any task that may lawfully be performed by such an agent in that jurisdiction, and may pay to such corporate trustee such compensation for its services as an agent as shall be agreed upon by all Trustees. 16.21. Additions to Trust. The Trustee may accept or decline to accept additions from any source; provided, however, that the Trustee may not accept additions of property in which any beneficiary or Trustee, other than Thomas M. Bess, has an ownership interest (e.g., property in which the beneficiary or Trustee has an interest). Any such property other than cash shall be returned upon demand to the transferor, together with any income earned on that property. If any such cash is deposited into the account of any trust or otherwise used for trust purposes, that amount shall be repaid to the transferor by the Trustee on demand, together with interest thereon at the Applicable Federal Rate, as determined and defined in accordance with Code Sec. 7872(e)(1)(A). 16.22. Division of QTIP Property. If the Personal Representative makes the so- called QTIP Election under Code Sec. 2056(b)(7) over a portion (but less than all) of any property passing to a trust hereunder, the Trustee is authorized to divide such property as to which the election was made and the portion as to which it was not made in the manner prescribed by Reg. §20.2056(b) -7(b) or any successor Regulation. Those shares shall be held and administered by THOMAS M. BESS LIVING TRUST U /A/D APRIL I7, 1998, AS AMENDED JULY 29, 2013 PAGE 18 the Trustee as separate trusts with identical terms, so that one of said trusts is entirely subject to said election and the other is not subject to it. However, the Trustee may manage and invest such separate trusts in solido. One of the purposes in authorizing such division is to enable the separate allocation of GST Exemption to one or both of said trusts. 16.23. Custodian Employed. The Trustee may employ a custodian, hold property unregistered or in the name of a nominee (including the nominee of any bank, trust company, brokerage house or other institution employed as custodian), and pay reasonable compensation to a custodian in addition to any fees otherwise payable to the Trustee, notwithstanding any rule of law otherwise prohibiting such dual compensation. ARTICLE 17 Definitions and Miscellaneous Provisions The following definitions and miscellaneous provisions shall apply under this Declaration: 17.1. Children and Descendants. References to "children" and "descendants" shall include children and descendants whenever born. 17.2. Surviving Spouse. The "surviving spouse" of an individual, other than with respect to Thomas M. Bess, means the person (if any) who survives that individual and who is married to and living as Wife and wife with that individual at the time of his or her death. 17.3. Survivorship. Any beneficiary hereunder who dies within ninety (90) days following the date of Thomas M. Bess's death or the termination of or distribution from any trust under this Declaration for which entitlement the date of this beneficiary's death shall be relevant, shall be deemed to have predeceased Thomas M. Bess or to have died before the termination of or distribution from that trust, as the case may be, for all purposes of this Declaration. 17.4. Code and Regulations. References to the "Internal Revenue Code" or "Code" or to provisions thereof are to the Internal Revenue Code of 1986, as amended at the time in question. References to the "Regulations" and "Regs." are to the Regulations under the Code. If, by the time in question, a particular provision of the Code has been renumbered, or the Code has been superseded by a subsequent Federal tax law, the reference shall be deemed to be to the renumbered provision or the corresponding provision of the subsequent law, unless to do so would clearly be contrary to Thomas M. Bess's intent as expressed in this Declaration. A similar rule shall apply to references to the Regulations. 17.5. Per Stirpes. Property that is to be divided among an individual's surviving or then living descendants "per stirpes" or in "per stirpital shares" shall be divided into as many equal shares as there are children of the individual who are then living or who have died leaving surviving or then living descendants. A share allocated to a deceased child of the individual shall be divided further among such deceased child's surviving or then living descendants in the same manner. 17.6. Personal Representative. Whenever herein a reference is made to Thomas M. Bess's or another person's Personal Representative, such reference shall be to those serving as the fiduciary of that person's estate, whether or not their title is Personal Representative under applicable state law. THOMAS M. BESS LIVING TRUST U /A/D APRIL 17, 1998, AS AMENDED JULY 29, 2013 PAGE 19 IN WITNESS WHEREOF, the Trustee has hereunto set its hand this July 29, 2013. 4 6-ad../ Dian Bess, Trustee THOMAS M, BESS LIVING TuusT U /A/D Arum. 17, 1998, AS AMENDED JULY 29, 2013 PAGE 23 c a u" v �i'. a r 0,v f g i 'r" D CERTIFICATION OF VITAL RECORD 4 S TATE OF WYOMING ix,/,.x DEPARTMENT OF HEALTH CE RTIFICATE OF DEATH r D ecedent: State File Number: 2014-001144 Name: Thomas Melvin Bess Gender: Male Social Security 555-32-4682 Date of Birth: September 03, 1928 Age at the Time of Death: 85 years I Date and Place of Death: Date of Death: April 10,2014 County of Death: Teton City of Death: Jackson Location: 325 Teton Ave Additional Decedent Information: Place of Birth: Los Angles, California Residence: Jackson, Wyoming Marital Status: Widowed Armed Forces: Yes Name of Father: Thomas Bess 4 1, Name of Mother: Faye Stewart Informant: Dan Bess Relationship: Son Disposition: Method of Disposition: Burial Place of Disposition: Aspen Hill Cemetery, Jackson, Wyoming Funeral Home or Facility: I Facility: Valley Mortuary, Jackson, Wyoming I :I Cause of Death: i 4 The immediate cause is listed on the first line followed by any underlying causes. Interval: (a) Prostate cancer 1 year :I ,I I Other Significant Parkinsons Conditions: Manner of Death: Natural Death Tittle of Death: 02:30 (Actual) :i Certifier: P i Type: Physician Name: Bruce Hayse, MD Address: 269 W. Broadway Ave, Jackson, Wyoming, 83001 i Date Filed: April 22, 2014 I ri t„ fr4 k 764250 yti` This is a true certification of the document on file in the office of Vital M� (J t �f f 2 y Statistics Services, Cheyenne, Wyoming ads f111 4 r i L 7< DATE ISSUED: Wednesday, p James Mc3rWe e N i C Wednesda A ril 23, 2 014 t ii ,f, Y' GG Deputy State Registrar t i� t «�e Y This copy is not valid unless prepared on paper with an engraved border l F,rl ANY AL TERATION �ll s' r I a.0 a ".i ss n. I v m 1 OR ERASURE VOIDS THIS CERTIFICATE T AIL R�