Tennessee Code Annotated

Tenn. Code Ann. § 35-15-402 (2026)

Requirements for creation

✓ current as of May 2026

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(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.

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.

Notes of Decisions

Cited in 6 cases (2 in the last 5 years), 2005–2026 · leading case: Tennessee Div. of United Daughters of Confederacy v. Vanderbilt Univ., 174 S.W.3d 98 (Tenn. Ct. App. 2005).

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Tennessee Div. of United Daughters of Confederacy v. Vanderbilt Univ., 174 S.W.3d 98 (Tenn. Ct. App. 2005). · cites it 4× “The courts must look to the intent of the donating party to determine whether a particular transaction involves the creation of a revocable charitable trust or simply the giving of a charitable gift subject to conditions. 4A SCOTT ON TRUSTS § 351, at 52-53; 15 Am.”

Welch v. Crow, 2009 OK 20 (Okla. 2009). “An example of a trust to which the doctrine of merger would apply is a trust of which the settlor is sole trustee, sole beneficiary for life, and with the remainder payable to the settlor's probate estate.”

Atkins v. Marks, 288 S.W.3d 356 (Tenn. Ct. App. 2008). · cites it 2× “The comment to this section further explains the doctrine: Subdivision (a)(5) addresses the doctrine of merger, which, as traditionally stated, provides that a trust is not created if the settlor is the sole trustee and sole beneficiary of all beneficial interests.”

In the Matter of George W. Walls, Jr. (Tenn. Ct. App. 2026). · cites it 4× “See Tenn. Code Ann. § 35-15-402 (a)(3), (5). Additionally, it is undisputed that the handwritten notes found by Executor, which mention a trust, were inadequate to establish a trust.”

Ajit C. Desai v. B. G. Naik Trust (Tenn. Ct. App. 2026). · cites it 2× “The trial court based its conclusion primarily on Tennessee Code Annotated section 35-15-402(d), providing that “Assets capable of registration, such as real estate .”

John Mark Atkins, surviving spouse & next of kin of Victoria H. Atkins, & as parent of Lauren Atkins v. Robert Clive Marks (Tenn. Ct. App. 2008). · cites it 2× “Tenn. Code Ann. § 35-15-402 (a)(5) (2007).”

— Tenn. Code Ann. § 35-15-402(a) — 1 case

In the Matter of George W. Walls, Jr. (Tenn. Ct. App. 2026). “See Tenn. Code Ann. § 35-15-402 (a)(3), (5). Additionally, it is undisputed that the handwritten notes found by Executor, which mention a trust, were inadequate to establish a trust.”

— Tenn. Code Ann. § 35-15-402(a)(2) — 1 case

Tennessee Div. of United Daughters of Confederacy v. Vanderbilt Univ., 174 S.W.3d 98 (Tenn. Ct. App. 2005). “The courts must look to the intent of the donating party to determine whether a particular transaction involves the creation of a revocable charitable trust or simply the giving of a charitable gift subject to conditions. 4A SCOTT ON TRUSTS § 351, at 52-53; 15 Am.”

— Tenn. Code Ann. § 35-15-402(a)(5) — 1 case

Atkins v. Marks, 288 S.W.3d 356 (Tenn. Ct. App. 2008). “The comment to this section further explains the doctrine: Subdivision (a)(5) addresses the doctrine of merger, which, as traditionally stated, provides that a trust is not created if the settlor is the sole trustee and sole beneficiary of all beneficial interests.”

— Tenn. Code Ann. § 35-15-402(d) — 1 case

Ajit C. Desai v. B. G. Naik Trust (Tenn. Ct. App. 2026). “The trial court based its conclusion primarily on Tennessee Code Annotated section 35-15-402(d), providing that “Assets capable of registration, such as real estate .”

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