73-3

73-3

December 28, 1973

Re: Burial Trust

Dear Mr. _________ :

This is in reply to your letter of October 11, 1973.

In the above mentioned letter, you requested our opinion as to whether a California state bank without trust powers could legally act as trustee under a burial trust.

After having reviewed the document attached to your above mentioned letter, it is our conclusion that such document is a trust instrument. Section 1500 of the Financial Code states that no corporation shall engage in the trust business unless it has complied with certain requirements. The term ‘trust business” is defined in Section 106 of the Financial Code as meaning,

“the business of acting as executor, administrator, guardian or conservator of estates, assignee, receiver, depositary or trustee under the appointment of any court, or any authority of any law of this or any other state or of the United States, or as trustee for any purpose permitted by law. ”

Since the Bank would be acting as trustee for a purpose permitted by law and the Bank has not complied with the required provisions of obtaining a trust department, it is our opinion that the Bank could not lawfully act as trustee under a burial trust agreement.

Moreover, the instrument attached with your above mentioned letter was apparently drafted to fall within the provisions of Section 7735 of the Business and Professions Code. The term “trustee” as used in Section 7735 is defined in Section 7736 as meaning,

“any banking institution or trust company legally authorized and empowered by the State of California to act as trustee in the handling of trust funds.…”

Therefore, the Bank could not act as trustee even within the definition contained in the Business and Professions Code.

If you have any further questions in regard to this matter, please do not hesitate to contact us.

Very truly yours,

DONALD E. PEARSON
Superintendent of Banks

By

JOHN F. STUART
Counsel

JFS:ap