South Carolina Code 62-7-402. Requirements for creation; merger of title
(1) the settlor has capacity to create a trust;
Terms Used In South Carolina Code 62-7-402
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Fiduciary: A trustee, executor, or administrator.
- Trustee: A person or institution holding and administering property in 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 § 62-7-408; or
(C) a trust for a noncharitable purpose, as provided in § 62-7-409;
(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole current and future beneficiary.
(b) If the trust agreement is in writing, the trust instrument may be signed by the settlor or in the settlor’s name by some other person in the settlor’s presence and by the settlor’s direction.
(c) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.
(d) 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.
(e) For purposes of § 62-7-402(a)(5), if a person holds legal title to property in a fiduciary capacity and also has an equitable or beneficial title in the same property, either by transfer, by declaration, or by operation of law, no merger of the legal and equitable titles shall occur unless:
(1) the fiduciary is the sole fiduciary and is also the sole current and future beneficiary; and
(2) the legal title and the equitable title are of the same quality and duration.
If either one of these conditions is not met, no merger may occur and the fiduciary relationship does not terminate.