uniform trust code - Kansas Judicial Branch

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The requirements for a trust’s creation, such as the necessary level of capacity and the
requirement that a trust have a legal purpose, are controlled by statute and common law, not by the
settlor. See Section 105(b)(1). Nor may the settlor negate the court’s ability to modify or terminate
a trust as provided in Sections 410 through 416. See Section 105(b)(4). However, a settlor is free
to restrict or modify the trustee’s power to terminate an uneconomic trust as provided in Sections
414, and the trustee’s power to combine and divide trusts as provided in Section 417.
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SECTION 401. METHODS OF CREATING TRUST. A trust may be created by:
(1) transfer of property to another person as trustee during the settlor’s lifetime or by will or
other disposition taking effect upon the settlor’s death;
(2) declaration by the owner of property that the owner holds identifiable property as trustee;
or
(3) exercise of a power of appointment in favor of a trustee.
Kansas Comment
Paragraph (1) conforms to Kansas law. A trust may be created by transfer inter vivos by the
owner of property to another person as trustee. Taliaferro v. Taliaferro, 260 Kan. 573, 921 P.2d 803
(1996). Creation of a trust by will is well-established in Kansas law. See e.g. Godfrey v. Chandley,
248 Kan. 975, 811 P.2d 1248 (1991) (court construes testamentary trust); K.S.A. 59-103(a)(7)
(provision for administration of trusts created by wills); K.S.A. 58-1201 (Uniform Trustees’ Powers
Act includes trusts created by trust instrument or will).
Paragraph (2) conforms to Kansas law. See Taliaferro, 260 Kan. 573 (trust may be created
by declaration by owner of property that he holds property as trustee).
Paragraph (3) conforms to Kansas law. See In re Will of Daniels, 247 Kan. 349, 799 P.2d
479 (1990) (power of appointment exercised in favor of bank as trustee).
UTC Comment
This section is based on Restatement (Third) of Trusts § 10 (Tentative Draft No. 1, approved
1996), and Restatement (Second) of Trusts § 17 (1959). Under the methods specified for creating
a trust in this section, a trust is not created until it receives property. For what constitutes an
adequate property interest, see Restatement (Third) of Trusts §§ 40-41 (Tentative Draft No. 2,
approved 1999); Restatement (Second) of Trusts §§ 74-86 (1959). The property interest necessary
to fund and create a trust need not be substantial. A revocable designation of the trustee as
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