 I, JEROME J. GARCIA, also known as JERRY GARCIA, a resident of Marin
County, California, hereby make, publish and declare this to be my
Last Will and Testament.
FIRST
REVOCATION OF PRIOR WILLS
I revoke all Wills and Codicils heretofore made by me.
SECOND
DECLARATIONS
I declare that I am married; my wife's name is DEBORAH KOONS. We have
no children by our marriage. I have four children now living from prior
relationships, namely HEATHER GARCIA KATZ, born December 8, 1963, ANNABELLE
WLAKER GARCIA, born February 2, 1970, THERESA ADAMS GARCIA, born September
21, 1974, and KEELIN GARCIA, born December 20, 1987. I have no deceased
children leaving issue, and I have not adopted any children. The terms
``child'' or ``children'' as used in this Will shall refer only to
my children and if any person shall claim and establish any right to
participate in my estate other than as provided in this Will, whether
as heir or in any other capacity whatsoever, I give and bequeath to
each such person the sum of One Dollar ($1.00).
THIRD
COMMUNITY PROPERTY
I declare my intention to dispose of all property, real and personal,
of which I have the right to dispose by Will, including any and all
property as to which I may have at the time of my death a power of
appointment by Will. I confirm to my wife her interest in our community
property. It is my intention by this Will to dispose of all my separate
Property and of my one-half (1/2) interest in our community property.
FOURTH
PERSONAL PROPERTY
Except as specifically provided hereinbelow, I give my jewelry, clothing,
household furniture and furnishings, personal automobiles, books, pictures,
objects of art and other tangible articles of a personal nature, or
my interest in such property, which I may have at the time of my death,
not otherwise specifically disposed of by this Will or in any other
manner, together with any insurance on such property, to my wife, if
she survives me for sixty (60) days, and if she does not, then to such
of my children, by representation, who survive me for sixty (60) days
in equal shares as they shall agree, or as my Executor shall, in my
Executor's discretion, determine if my children do not agree within
one hundred fifty (150) days of my death.
In the absence of a conflict of interest, my Executor shall represent
any child under age eighteen (18) in matter relating to any distribution
under this Article FOURTH, including selection of the assets that shall
constitute that child's share, and my Executor may, in my Executor's
discretion, sell for the child's account any part of that child's share.
Any property or its proceeds distributable to a child under age eighteen
(18) pursuant to this Paragraph may be delivered without bond to the
guardian of such child or to any suitable person with whom he or she
resides or who has the care or control of him or her.
If neither my wife nor any of my children shall survive me, then this
gift shall lapse and such property, and any insurance thereon, shall
become part of the residue of my estate.
FIFTH
GUITARS
I give all my guitars made by DOUGLAS ERWIN, to DOUGLAS ERWIN, or
to his estate if he predeceases me.
SIXTH
DISTRIBUTION OF RESIDUE OF ESTATE
After payment of all my debts, my last illness and funeral expenses,
and provision for my child support obligations for KEELIN GARCIA, my
marital settlement agreement with CAROLYN ADAMS GARCIA which is being
drafted at the time of signing this will, and my agreement with MANASHA
MATHESON regarding the house to be owned one-half by her and one-half
by the trust established for KEELIN GARCIA which is being drafted at
the time of signing this will, my Executor shall divide and distribute
the remainder of my estate for my wife/husband and children as follows:
A. If my wife survives me for sixty (60) days, I give her one-third
(1/3) of my estate outright and free of trust. If my wife fails to
survice me for sixty days this bequest shall lapse and the amount shall
be included with the remainder of my estate under paragraph B.
B. I give the remaining two-thirds (2/3) of my estate, or if my wife
fails to survive me, my entire remaining estate, to my daughters, my
friends, and my brother as follows:
1. The following shares shall be distributed outright and free of
trust, by right of representation, to the persons indicated:
HEATHER GARCIA KATZ ONE-FIFTH (1/5)
ANNABELLE WALKER GARCIA ONE-FIFTH (1/5)
SUNSHINE MAY WALKER KESEY ONE-TENTH (1/10)
CLIFFORD GARCIA ONE-TENTH (1/10)
2. I give to the Trustee hereinafter named, IN TRUST, for the benefit
of my younger daughters, THERESA ADAMS GARCIA and KEELIN GARCIA, one-fifth
(1/5) of my estate for each, to be held, administered and distributed
as a separate trust for each child as follows:
a. So long as my child is living and is under age twenty-one (21),
the Trustee shall pay to or apply for her benefit, as much of the net
income and principal of the Trust as the Trustee, in the Trustee's
absolute discretion, shall deem necessary for her proper support, health,
maintenance and education, after taking into consideration, to the
extent the Trustee shall deem advisable, any other income or resources
of my child, known to the Trustee. Any net income not distributed shall
be accumulated and added to principal.
b. When the child attains the age of twenty-one (21), the trust share
allocated on account of such child shall thereupon be distributed free
of trust to that child.
c. If my child dies prior to receipt of her entire share of principal
and income provided herein, and that child is survived by issue, then
the remaining principal and income shall be held in trust for those
issue under the terms of this subparagraph 2. If my child is not survived
by issue, then the remaining principal and income shall be distributed
free of trust to the other residual beneficiaries receiving fractional
interests in my estate under this paragraph B in proporation to those
fractional interests, by right of representation; provided, however,
if a part of that balance would otherwise be distributed to aperson
for whose benefit a trust is then being administered under this Will,
that part shall instead be added to that trust and shall thereafter
be administered according to its terms.
d. Whenever provision is made in this Article SIXTH for payment for
the ``education'' of a beneficiary, the term ``education'' shall be
construed to include college and postgraduate study, so long as pursued
to advantage by the beneficiary at an institution of the beneficiary's
choice; and in determining payments to be made for such college of
post-graduate education, the Trustee shall take into consideration
the beneficary's related living expenses to the extent that they are
reasonable.
e. Notwithstanding the directions given as to the distribution of
income and principal in this Article SIXTH, any trusts established
by this Article shall terminate, if they have not previously terminated,
twenty-one (21) years after the death of the survivor of the class
composed of my wife/husband and all my issue living at my death, and
the then remaining principal and undistributed income of such trusts
shall be paid to my issue or other beneficiaries then living to whom
income payments could be made under such trusts immediately prior to
its termination under this clause, such issue to take by right of representation.
SEVENTH
ULTIMATE DISTRIBUTION
If at the time of my death, or at any later time before full distribution
of any Trust established under Article SIXTH, all my issue are deceased,
and no other disposition of the property is directed by this Will,
the estate or the portion of it then remaining shall there upon be
distributed to those persons who would then by my heirs, their identities
and respective shares to be determined as though my death had then
occurred and according to the laws of the State of California then
in effect relating to the succession of separate property not acquired
from a predeceased spous.
EIGHTH
TRUSTEE'S POWERS
I give to the Trustee of all of the Trusts established under this
Will the following powers, in addition to and not in limitation of
the common-law and statutory powers, and without application or permission
of any court.
A. To retain any property, real or personal, which the Trustee may
receive, even though such property (by reason of its character, amount,
proportion to the total Trust Estate or otherwise) would not be considered
appropriate for a Trustee apart from this provision.
B. To sell, exchange, give options upon, partition, or otherwise dispose
of any property which the Trustee may hold from time to time at public
or private sale or otherwise, for cash or other consideration or on
credit, and upon such terms and for such consideration as the Trustee
shall think fit, and to transfer and convey the same free of all trust.
C. To invest and reinvest the Trust Estate from time to time in any
property, real or personal, including (without limiting the generality
of the foregoing language) securities of domestic and foreign corporations
and investment trusts, common trust funds, including those established
by any successor corporate fiduciary which acts as Executor and Trustee
hereunder, bonds, preferred stocks, common stocks, mortgages, mortgage
participation, even though such investment (by reason of its character,
amount, proportion to the total Trust Estate or otherwise) would not
be considered appropriate for a Trustee apart from this provision,
and even though such investment causes a greater proportion of the
principal to be invested in investment of one type or of one company
than would be considered appropriate for a Trustee apart from this
provision; to lend money to any and all persons, including any or all
of the beneficiaries hereof, upon such terms and conditions as the
Trustee in the Trustee's sole discretion deems proper; in connection
with such loans the Trustee may or may not demand security therefor
or interest thereon as the Trustee in the Trustee's sole discretion
deems proper.
D. To improve any real estate held in the Trust Estate, including
the power to demolish any buildings in whole or in part and to erect
buildings; to lease real estate on such terms as the Trustee thinks
fit, including leases for periods that my extend beyond the duration
of the Trusts, and to grant renewals thereof; and to foreclose, extend,
assign, partially release and discharge mortgages.
E. To borrow money from any lender even though a successor fiduciary
hereunder, execute promissory notes therefor, and to secure said obligations
by mortgage or pledge of any of the Trust property.
F. To compromise or arbitrate any claim in favor of or against the
Trust Estate; to commence or defend any litigation concerning
the Trust Estate which the Trustee in the Trustee's absolutie discretion
considers
prudent, and costs and expenses of such, including reasonable
attorney's fees, to be borne by the Trust Estate; to give or receive
consideration
in any settlement to reduce the rate of return on any investment,
with or without consideration; to prepay or accept prepayment of any
debt;
to enforce, abstain from enforcing, release or modify, with or
without consideration, any right, obligation, or claim; to extend and
renew
any obligation or hold the same after maturity without extension
or renewal; to accept deeds in lieu of foreclosure and pay consideration
for the same; to determine that any property
is worthless or of insufficient value to warrant keeping or protecting,
and to abandon any such property or convey the same with or without
consideration; and to use any portion of the Trust Estate to
protect
any other portion of the Trust Estate.
G. To vote all securities held as a part of the Trust Estate, or to
join in a voting trust or other lawful form of stockholders'
agreements respecting the voting of shares for such period as the Trustee
deems
proper; to pay all assessments on such securities, to exercise
options, subscriptions and conversion rights on such securities, with
respect
thereto; to employ such brokers, banks, counsel, custodians,
attorneys or other agents, and to delegate to them such powers (including,
among
others, the right to vote shares of stock held in trust) or join
in a voting trust or other lawful form of stockholders' agreements
respecting
the voting of shares for such periods as the Trustee deems proper;
and to cause securities held from time to time to be registered
in the name of the Trustee, or in the name of the Trustee's nominee
with
or without mention of the Trust in any instrument of ownership,
and to keep the same unregistered or to retain them in condition that
they
will pass by delivery.
H. To incur and pay all taxes, assessments, costs, charges, fees and
other expenses of every kind which the Trustee deems necessary or advisable
in connection with the administration of the Trust created hereby,
including reasonable Trustee's fees.
I. To join in or oppose any reorganization, recapitalization, consolidation
ormerger, liquidation or foreclosure, or any plan therefor; to deposit
property with, and delegate discretionary power to any committee or
depository; to pay assessments, expenses and compensation; and to retain
any property issued therein; to exercise or sell conversion or subscription
rights, and to retain the property received.
J. To hold, manage, invest and account for the several shares which
may be held in trust, either as separate funds or as a single fund,
as the Trustee deems proper; if as a single fund, making the division
thereof only upon the Trustee's books of account and allocating to
each share its proportionate part of the principal and income of the
common fund and charging against each share its proportionate part
of the common expenses.
K. To keep any or all of the Trust property at any place or places
in California or elsewhere in the United States or abroad, or with
a depository or custodian at such place or places.
L. In dividing the Trust Estate into shares or in distributing the
same, to divide or distribute in cash or in kind as the Trustee thinks
fit. For purposes of division or distribution, to value the Trust Estate
reasonably and in good faith, and such valuation shall be conclusive
on all parties. Where distribution or division is made in kind, the
Trustee shall, so far as the Trustee finds practicable, allocate to
the beneficiaries proportionate amounts of each kind or security; or
other property of the Trust Estate.
M. The Trustee is authorized in the Trustee's discretion to retain
from income distributable to any beneficiary an amount equal to the
income tax (Federal and State) the Trustee estimates will be imposed
upon such income; any sums so withheld shall be applied to the tax
liability of such beneficiary. Nothing herein shall be construed as
imposing an obligation upon the Trustee to retain any sums for the
purpose mentioned, nor that said tax shall be assumed or borne by the
assets held for such beneficiary. No liability shall attach to the
Trustee if the Trustee acts or fails to act as authorized in Subparagraph
M.
N. To partition, without sale, any real or personal property held
jointly or in common with others or distributable to one or more persons
hereunder; to pay or receive consideration to effect equality of partition;
to unite with any other owner in the management, leasing, use of improvement
of any property.
O. To determine, as to all property received, whether and to what
extent the same shall be deemed to be principal or income and as to
all charges or expenses paid, whether and to what extent the same shall
be charged against principal or against income, including, without
limiting the generality of the foregoing language, power to apportion
any receipt or expense between principal and income and to determine
what part, if any, of the actual income received upon any wasting investment
or upon any security purchased or acquired at a premium shall be retained
and added to principal to prevent diminution of principal upon exhaustion
or maturity thereof. In this regard, the Trustee in the Trustee's absolute
discretion, may, but shall not be required to, if the Trustees deems
it proper, allocate receipts or charges and expenses to income or principal
according to the Principal and Income Law of the State of California
as it may from time to time exist. All allocation of receipts or charges
and expenses shall be conclusive on all persons interested in any trusts
created hereby.
P. In all matters to administer and invest the Trust Estate as fully
and freely as an individual owner might do, without any restrictions
to which fiduciaries are ordinarily subject, except the duty to act
in good faith and with reasonable care.
Q. The Trustee shall also have the power to do all things necessary
to continue any business enterprise, in whatever form, owned or controlled
by me upon my death for such period as the Trustee shall deem to be
in the best interests of the Trust Estate.
R. The Trustee is authorized to employ attorneys, accountants, investment
advisors, specialists and such other agents as he shall deeme necessary
or desirable. The Trustee shall have the authority to appoint an investment
manager or managers to manage all or any part of the assets of the
Trust Estate, appointments shall include the power to acquire and dispose
of such assets. The Trustee may charge the compensation of such attorneys,
accountants, investment advisors, specialists and other agents and
any other expenses against the Trust Estate.
NINTH
PAYMENT OF TAXES AND EXPENSES
I direct that all estate, succession or other death taxes, duties,
charges or assessments that may by reaso of my death be attributable
to my probate estate or any portion of it, or to any property or transfers
of property outside my probate estate, including but not limited to
burial expenses, expenses of last illness, attorney's fees, executor's
fees, appraiser's fees, accountant's fees and other expenses of administering
my estate shall be paid by the Executor from the estate in the same
manner as if said taxes were a debt of my estate, without apportionment,
deduction, or reimbursement thereof and without adjustment thereof
among my beneficiaries. Provided, however, if there is inadequate cash
in my estate to pay such taxes and expenses, then my executor may borrow
such funds as I have given authority in Article TWELFTH below.
TENTH
NO CONTEST CLAUSE
If any beneficiary of my Will or any Codicil hereto or of the Trusts
created hereunder before or after the admission of this Will to probate,
directly or indirectly, contests or aids in the contest of the same
or any provision thereof, or contests the distribution of my estate
in accordance with my Will or any Codicil, the provisions herein made
to or for the benefit of such contestant or contestants are hereby
revoked and for the purpose of my Will and any Codicil, said contestant
or contestants shall be deemed to have predeceases me.
ELEVENTH
SPENDTHRIFT PROVISION
Each and every beneficiary under the Trust or Trusts created by this
Will is hereby restrained from and is and shall be without right, power,
or authority to sell, transfer, pledge, hypothecate, mortgage, alienate,
anticipate, or in any other manner affect or impair his, her or their
beneficial and legal rights, titles, interests, claims and estates
in and to the income and/or principal of said trusts, and the rights,
titles, interests and estate of any beneficiary thereunder shall not
be subject nor liable to any process of law or court, and all of the
income and/or principal under said trusts shall be paid over to the
beneficiary in person, or, in the event of the minority or incompetency
of any beneficiary, to the guardian of that beneficiary in such manner
as in the Trustee's discretion seems most advisable at the time and
in the manner provided by the terms of the Trust.
TWELFTH
EXECUTOR'S APPOINTMENT AND POWERS
I hereby nominate and appoint my wife DEBORAH KOONS, and my attorney
DAVID M. HELLMAN, as Executor of this Will. If either of them shall
be, or become unable or unwilling to act, then the survivor shall act
with JEFFREY E. EHLENBACH. No bond or other security shall be required
of any person who acts as Executor hereunder.
A. I hereby expressly authorize and empower my Executor to sell and
dispose of the whole or any portion of my estate, real or personal,
and wherever situate, as and when and upon such terms as my Executor
deems proper, at public or private sale, with or without notice, and
without first securing any order or court therefor. I further grant
to my Executor all the powers granted to the Trustee under Article
EIGHTH hereof, insofar as such powers are appropriate for the administration
of my estate and the probate of my Will;
B. If my Executor in good faith decides that there is uncertainty
as to the inclusion of particular property in my gross estate for federal
estate tax purposes, my Executor shall exclude such property from my
gross estate in the estate tax return. My Executor shall not be liable
for any loss to my estate or to any beneficary, which loss results
from the decision made in good faith that there is uncertainty as to
the inclusion of particular property in my gross estate.
C. The decision of my Executor as to the date which should be selected
for the valuation of property in my gross estate for federal estate
tax purposes shal be conclusive on al concerned;
D. When a choice is available as to whether certain deductions shall
be taken as income tax deductions or estate tax deductions, the decision
of my Executor in this regard shall be conclusive on all concerned
and no adjustment of income and principal account shall be made as
a result of such decision;
E. Beginning as of the date of my death and until the establishment
of the trusts provided for herein, my Executor shall make such payments
of estate income, which is allocable to trust assets, as would be required
if the trusts had actually been established at the date of my death.
F. My Executor is authorized to execute and deliver disclaimers under
Internal Revenue Code Section 2518 and California Probate Code Sections
260 through 295 or any successor statute.
THIRTEENTH
TRUSTEE'S APPOINTMENT AND COMPENSATION
I hereby nominate and appoint my wife DEBORAH KOONS, and my attorney
DAVID M. HELLMAN, as Trustee of this Will. If either of them shall
be, or become unable or unwilling to act, then the survivor shall act
with JEFFREY E. EHLENBACH. No bond or other security shall be required
of any person who acts as Trustee hereunder.
The individual Trustees shall be entitled to receive reasonable commissions
similar to those charged by corporate Trustees in the San Francisco
Bay Area. Any successor Trustee shall be entitled to reasonable compensation
for its services.
FOURTEENTH
GUARDIAN
If MANASHA MATHESON does not survive me, I hereby nominate and appoint
SUNSHINE MAY WALKER KESEY, as the guardian of KEELIN GARCIA, if she
is then a minor. No bond shall be required of any person who acts as
guardian hereunder.
FIFTEENTH
DELAYED DISTRIBUTION
I direct that no interest shall be payable on account of any delary
in distributing any devise, bequest, or legacy under my Will or any
Codicial thereto.
SIXTEENTH
DEFINITIONS
The words ``Executor,'' ``Trustee,'' ``child,'' ``children,'' and
``beneficiary,'' as used herein, shall comprehend both the singular
and the plural, and the masculine or feminine shall be deemed to include
the other wherever the context of this Will requires. This Will and
any Codicil shall be interpreted under the California law as in effect
at the date of signature of such document.
IN WITNESS WHEREOF, I have hereunto set my hand this May 12, 1994.
Jerome J. Garcia
On the date indicated below, JEROME J. GARCIA, declared to us, the
undersigned, that this instrument, consisting of sixteen (16) pages,
including the page signed by us as witnesses, was the testator's Will
and requested us to act as witnesses to it. The testator thereupon
signed this Will in our presence, all of us being present at the same
time. We now, at the testator's request, in the testator's presence
and in the presence of each other, subscribe our names as witnesses.
It is our belief that the testator is of sound mind and memory and
is under no constraint or undue influence whatsoever.
We declare under penalty of perjury that the foregoing is true and
correct and that this declaration was executed on May 12, 1994, at
San Rafael, California.
David M. Hellman residing at -------------, San Rafael, CA 94901
Tanna Burcher** residing at -----------, San Rafael, CA 94901
|
4th JD
