You asked us to provide the State law related to trusts established with no funds
(i.e., dry or empty trusts), for the States in Region IV to assist field offices in
addressing questions regarding how such purported trusts should be considered under
the Social Security Administration’s (agency) Supplemental Security Income (SSI) resource
SSI is a general public assistance program for aged, blind, or disabled individuals
who meet certain income and resource restrictions and other eligibility requirements.
See Social Security Act (Act) §§ 1602, 1611(a); 20 C.F.R. §§ 416.110, 416.202 (2015).* “Resources” include cash or other liquid assets or any real or personal property
that an individual owns and could convert to cash to use for his or her support and
maintenance. See Act § 1613; 20 C.F.R. § 416.1201(a). “If the individual has the right, authority
or power to liquidate the property or his or her share of the property, it is considered
a resource. If a property right cannot be liquidated, the property will not be considered
a resource of the individual . . . .” 20 C.F.R. § 416.1201(a)(1); see Program Operations Manual System (POMS) SI 01120.010.B. Even if property has no current market value, it may still be considered a resource
if it is property that an individual owns and has the right to convert to cash, and
the individual is not legally restricted from using the property for his or her support
and maintenance. See POMS SI 01110.100.B.2, B.3.
Property held in a trust may or may not be considered a resource for SSI purposes.
See POMS SI 01120.200.A.1. Generally, the agency must consider the principal or corpus of a trust established
with the assets of an individual to be a resource of the individual. See Act § 1613(e)(1)-(3); POMS SI 01120.201.A.1. Trust principal is a countable resource if the individual (claimant, recipient,
deemer) has legal authority to revoke or terminate the trust and use the funds to
meet his or her food or shelter needs, or if the individual can direct the use of
the trust principal for his or her support and maintenance under the terms of the
trust. See POMS SI 01120.200.D.1.a. Also, if an individual can sell his or her beneficial interest in the trust,
that interest is a resource. See POMS SI 01120.200.D.1.a. Conversely, if an individual does not have legal authority to revoke or terminate
the trust or to direct the use of the trust assets for his own her own support and
maintenance, the trust principal is not a resource for SSI purposes. See POMS SI 01120.200.D.2. The revocability of a trust and the ability to direct the use of trust principal
depends on the terms in the trust agreement and on State law. See POMS SI 01120.200.D.2.
Alabama statutory law indicates a trust may be established through the conveyance
of property but does not otherwise explain the property requirements to establish
a trust. See Ala. Code § 19-3B-401, comment (2016). Alabama case law, however, has clarified that
the existence of property held by a trustee for the benefit of a trust as an essential
element of a trust. See Corretti v. First Nat’l Bank of Birmingham, 276 So. 2d 141, 147 (Ala. 1973); Gordon v. Central Park Little Boys League, 119 So. 2d 23, 27 (Ala. 1960). Thus, Alabama law does not appear to recognize a
trust that is established with no funds.
Florida statutory law indicates a trust may be created when property or a property
interest is transferred to a trustee, but does not further explain the property requirements
to establish a trust. See Fla. Stat. Ann. § 736.0401 (West 2016). Florida case law, however, indicates an express
trust is not created until property is conveyed for the purpose of the trust. See McLemore v. McLemore, 675 So. 2d 202, 205 (Fla. Dist. Ct. App. 1996); In re Herskowitz’s Estate, 338 So. 2d 210, 212 (Fla. Dist. Ct. App. 1976). Thus, Florida law does not appear
to recognize a trust that is established with no funds.
Georgia statutory law requires express trusts to include trust property. See Ga. Code Ann. § 53-12-20 (West 2016). Georgia case law also holds that an essential
element of an express trust is the existence of trust property. See Hayes v. Clark, 530 S.E.2d 38, 39 (Ga. Ct. App. 2000); Lummus Supply Co. v. Fidelity Fed. Sav. & Loan Ass’n, 234 S.E.2d 671, 672 (Ga. Ct. App. 1977). Thus, Georgia law does not appear to recognize
a trust that is established with no funds.
Kentucky statutory law indicates a trust may be created through the transfer of property
to a trustee or by a declaration that an owner of property has made that the owner
holds identifiable property as trustee, but does not further explain the property
requirements to establish a trust. See Ky. Rev. Stat. Ann. § 386B.4-010 (West 2016). Kentucky case law clarifies that a
fundamental element of a trust is the devotion of trust property to the benefit of
the trust beneficiaries. See Siter v. Hall, 294 S.W. 767, 770 (Ky. Ct. App. 1927). Such property must be in existence and identified
to establish the trust. See DeLeuil’s Ex’rs v. DeLeuil, 74 S.W.2d 474, 477 (Ky. Ct. App. 1934). Thus, Kentucky law does not appear to recognize
a trust that is established with no funds.
Under the Family Trust Preservation Act of 1998, Mississippi statutory law defines
trusts to mean an express trust, private or charitable, or a trust created or determined
by a judgment or decree under which the trust is to be administered in the manner
of an express trust. See Miss. Code Ann. § 91-9-501(a) (West 2016). Mississippi excludes from this definition
of a trust the following: constructive trusts, other than those created by a judgment
or decree under which the trust is to be administered in the manner of an express
trust, and resulting trusts; guardianships and conservatorships; executors and administrators
of decedent's estates; totten trust accounts; custodial arrangements pursuant to the
Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state; business
trusts that are taxed as partnerships or corporations; investment trusts subject to
regulation under the laws of this state or any other jurisdiction; common trust funds;
voting trusts; security arrangements; transfers in trust for purpose of suit or enforcement
of a claim of right; liquidation trusts; or any arrangement under which a person is
nominee or escrowee for another. See Miss. Code Ann. § 91-9-501(b). Mississippi statutory law does not appear to contain
any additional definition of a trust or further explanation regarding any property
requirements to establish a trust.
Mississippi case law also does not appear to address whether there are property requirements
to establish a trust. Cases that describe the essentials of an express trust do not
address this question. See, e.g., Smiley v. Yllander, 105 So. 3d 1171, 1175 (Miss. Ct. App. 2012) (identifying two types of trusts, express
and implied, and noting express trusts or any trust holding real property must be
written, while implied may either be constructive or resulting, without addressing
whether property is a prerequisite to establishing any type of trust); Sligh v. First Nat’l Bank of Holmes Cty., 735 So. 2d 963, 974 (Miss. 1999) (describing a trustee’s duties and noting guarantorships
and conservatorships are not trusts); Ogle v. Durley, 77 So. 2d 688, 691-92 (Miss. 1955) (explaining that real property that was devised
to a survivor in a will with condition of splitting the income of said property with
another survivor did not create trust, but instead created an equitable charge). Thus,
we found no Mississippi statute or case law authorizing the establishment of a trust
with no funds.
North Carolina statutory law indicates a trust may be established when property is
transferred to or held by a trustee, but does not further describe the property requirements
to establish a trust. See N.C. Gen Stat. Ann. § 36C-4-401 (West 2016). North Carolina case law, however, requires
the conveyance of property in order for a trust to be created. See Bissette v. Harrod, 738 S.E.2d 792, 799 (N.C. Ct. App. 2013). Thus, North Carolina law does not appear
to recognize a trust that is established with no funds.
South Carolina statutory law indicates a trust may be established when property is
transferred to a trustee or through a written, signed declaration from an owner of
property that the owner is holding the property as a trustee, but does not further
explain the property requirements to establish a trust. See S.C. Code Ann. § 62-7-401 (2016). South Carolina case law, however, indicates that
a trust generally can exist only if it is funded. See Foster v. Foster, 682 S.E.2d 312, 314 (S.C. Ct. App. 2009) (listing trust res as a necessary element
to establish a trust); Mayer v. M.S. Bailey & Son, 555 S.E.2d 406, 410 (S.C. Ct. App. 2001) (noting a trust generally can exist only
if it is funded). Thus, South Carolina law does not appear to recognize a trust that
is established with no funds.
Tennessee’s Uniform Trust Code includes a provision identifying the requirements for
creating a trust particularly with respect to identifying a settlor with the requisite
capacity and intention, a trustee with duties to perform, and a definite beneficiary.
See Tenn. Code Ann. § 35-15-402 (West 2016). However, neither this provision nor other
provisions of Tennessee statutory law appear to discuss whether the trust must contain
property. Under Tennessee case law, however, for an express trust to exist, the trust
must contain a corpus, or property. See Myers v. Myers, 891 S.W.2d 216, 218 (Tenn. Ct. App. 1994). Thus, Tennessee law does not appear to
recognize a trust that is established with no funds.
If you have any questions regarding this memorandum, please contact the undersigned
at (404) 562-1094.
Mary Ann Sloan
Regional Chief Counsel
By: Natalie Liem
Assistant Regional Counsel