TCA § 35-50-109 — Incorporation of § 35-50-110 in will or trust instrument
AI-assisted research summary: A testator or settlor may incorporate certain § 35-50-110 language into a will or written trust instrument by clear reference, but the executor-only language in subdivisions (1)–(4) can be used only in a will.
By a clearly expressed intention of the testator or settlor so to do contained in a will, or in an instrument in writing by which a trust estate is created inter vivos, the language contained in the introductory paragraph of § 35-50-110, and in any one (1) or more of subdivisions (1)-(33) of that section, may be, by appropriate reference made to that language, incorporated in the will or other written instrument, to be applicable either to the fiduciary authorized to administer the estate of the testator, or to the fiduciary authorized to administer a trust estate established or to be established pursuant to the terms of the will or other written instrument, or to both types of fiduciaries, with the same effect and subject to the same judicial interpretation and control in appropriate cases as though the language were set forth verbatim in the instrument; provided, that the language contained in § 35-50-110(1)-(4) is appropriate only with respect to powers to be vested in the one (1) or more executors of the estate of a decedent, and is available only for incorporation by reference in a will, as powers of the executor or executors of the will. “Estate,” as used in any subdivision of § 35-50-110, is construed to mean the estate of the decedent if by reference to the subdivision it has been made applicable to the executor or executors of a will, and is construed to mean the trust estate if by reference to the subdivision it has been made applicable to the trustee or trustees of such an estate. As used in this section and § 35-50-110, “fiduciary,” and the masculine singular form of the pronoun referring to the fiduciary, are construed to mean the one (1) or more executors, whether male, female or corporate, of the estate of a decedent, or the one (1) or more trustees, whether male, female or corporate, of a testamentary or inter vivos trust estate, whichever in a particular case is appropriate. Nothing contained in this section and § 35-50-110 shall be construed to limit the power of a court of competent jurisdiction to prohibit a fiduciary from taking any action, or to restrain a fiduciary in the taking of any action, notwithstanding the authorizations or powers vested in the fiduciary by any written instrument in which all or any part of § 35-50-110 is incorporated by reference.