§ 35-15-402 — Requirements for creation

(a) A trust is created only if: (1) The settlor has capacity to create a trust; (2) The settlor indicates an intention to create the trust; (3) The trust has a definite beneficiary or is: (A) A charitable trust; (B) A trust for the care of an animal, as provided in § 35-15-408 ; or (C) A trust for a noncharitable purpose, as provided in § 35-15-409 ; (4) The trustee has duties to perform; and (5) The same person is not the sole trustee and sole beneficiary. (b) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities. (c) A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred. (d) A lifetime trust is valid as to any assets held by the trust to the extent the assets have been transferred to the trust. For purposes of this subsection (d): (1) Assets capable of registration, such as real estate, stocks, bonds, bank and brokerage accounts, and the like, are transferred to the trust through the recording of the deed or the completion of registration of the asset in the name of the trust or trustee. Assets that are capable of registration are not transferred to the trust through only a recital of assignment, holding, or receipt in the trust instrument; and (2) Assets not capable of registration, are transferred to the trust through a recital of assignment describing the asset with particularity in the trust instrument. (e) Notwithstanding subdivision (a)(4), a passive trust is not terminable because it is passive.

Legislative History

Amended by 2021 Tenn. Acts, ch. 420, s 22, eff. 7/1/2021. Amended by 2017 Tenn. Acts, ch. 290, s 13, eff. 7/1/2017. Acts 2004, ch. 537, § 24.