Request By:
Mr. Harold F. Gardner
Executive Director
The Kentucky United Methodist
Higher Education Foundation, Inc.
Suite 2, 106 Court Street
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Patrick B. Kimberlin, III, Assistant Attorney General
This is in response to your recent letter requesting an opinion of our office as to whether the Kentucky United Methodist Higher Education Foundation, Inc. may serve as a trustee of a charitable trust created under a will probated in this state. You are particularly concerned with KRS 395.005 which fails to list a charitable corporation among those entities which may be appointed a "fiduciary" although that term is defined by KRS 395.001 to include "testamentary trustees."
Since KRS 395.005 specifically lists those entities or persons which may be appointed as fiduciary, and since charitable corporations such as your foundation are not included in this statute, it is our opinion that they are not eligible to be appointed as a testamentary trustee under Chapter 395 of the Kentucky Revised Statutes. The specific enumeration in KRS 395.005 of those entities which may qualify for appointment as a fiduciary excludes the possibility of such a qualification and appointment for entities, such as charitable organizations incorporated pursuant to Chapter 273 of the Kentucky Revised Statutes, which are not so mentioned. Compare
Smith v. Wedding, Ky., 303 S.W.2d 322 (1957).
In passing, we would point out that although a charitable corporation would not be eligible to qualify as a testamentary trustee, it can be a bonafide recipient under the trust. KRS 381.260, KRS 273.171. However, an entity or person eligible pursuant to KRS 395.005 would have to be appointed as the testamentary trustee.