(Code 1981, §53-12-201, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2011, p. 551, § 10/SB 134; Ga. L. 2018, p. 262, § 14/HB 121.)
The 2011 amendment, effective May 12, 2011, deleted the last sentence in subsection (d), which read: "For purposes of this paragraph a parent may represent and bind such parent's minor child or unborn child if a conservator or guardian for the child has not been appointed and there is no conflict of interest between the parent and the child with respect to the appointment of a trustee."
The 2018 amendment, effective July 1, 2018, substituted the present provisions of subsection (d) for the former provisions, which read: "If all the qualified beneficiaries are sui juris, or if some of the qualified beneficiaries are not sui juris but all have a guardian or conservator, the qualified beneficiaries may appoint a trustee by unanimous consent."; and substituted the present provisions of subsection (f) for the former provisions, which read: "The petition provided for in subsection (e) of this Code section shall be served upon all qualified beneficiaries or their guardians or conservators. The court shall appoint a guardian ad litem for each beneficiary who is not sui juris and who has no guardian or conservator, and service of notice of the petition shall be made on such guardian ad litem."
Law reviews.- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1895, §§ 3197, 4008, and 4009, former Civil Code 1910, § 3746, former Code 1933, §§ 3-710, 108-118, 108-302, and 108-315, former O.C.G.A. §§ 51-12-5.1,53-12-33,53-13-2, and53-13-8, and former O.C.G.A. §§ 53-12-6 and53-12-170 of the 1991 Trust Act are included in the annotations for this Code section.
Lack of trustee will not invalidate trust.
- Resignation of the assignee of a trust arising under general assignments for the benefit of creditors was not a revocation of the deed of assignment. The title having passed into the trustee, the trust should not be allowed to fail for the want of a trustee. A successor will be appointed. McFerran, Shallcross & Co. v. Davis, 70 Ga. 661 (1883) (decided under former law).
Trust for the maintenance of a school will not fail because of the failure of trustees; and when the office is vacant with no provision for appointments the superior court sitting in equity upon petition by the beneficiaries will make the appointment. Thompson v. Hale, 123 Ga. 305, 51 S.E. 383 (1905) (decided under former Code 1895, §§ 4008 and 4009).
When a deed creating a religious and educational trust provides that successive trustees shall be appointed by proper authorities, when the office becomes vacant, the trust will not fail because of there being no trustee but a court of equity will appoint one. Harris v. Brown, 124 Ga. 310, 52 S.E. 610, 2 L.R.A. (n.s.) 828 (1905) (decided under former Code 1895, § 3197).
When it was apparent from entire will and codicil that bequest to the governing authorities of a named association, "same being an Orphan's Home located at Macon, Georgia," was intended as a charitable trust for the benefit of orphans as a class, and that the designated "governing authorities" were merely to perform the office of trustee, the bequest was sufficiently definite and specific to be capable of execution, and since a trust will not fail for the want of a trustee, the legacy would not lapse merely because there may have been no such orphan's home and "governing authorities" as were mentioned in the will; in such case a court of equity could, by approximation, effectuate the general charitable purpose of the testator in a manner most similar to that indicated by the testator. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, § 113-815).
When the manifest intention was to create a charitable trust for tubercular children, even though the charitable institution named never existed, the purpose and object for which the trust was created still exists and the legacy does not lapse, and the cy pres doctrine applies. Creech v. Scottish Rite Hosp. for Crippled Children, 211 Ga. 195, 84 S.E.2d 563 (1954) (decided under former Code 1933, § 108-102).
If a gift is made for a public charitable purpose, it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of the charity are uncertain and indefinite. It will, nevertheless, be sustained. Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536 (1969) (decided under former Code 1933, § 108-118).
Court of equity will not allow the trust to be destroyed by the refusal of the person nominated as trustee to accept the trust, or the person's declination or failure to execute the trust, if by any possibility the trust is capable of execution by the court. Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536 (1969) (decided under former Code 1933, § 108-118).
Refusal to create trust for support of children.
- When the defendant declined to agree upon a trustee and refused to create a trust for defendant's minor children in compliance with a contempt order from an alimony decree, the court had the jurisdiction and power to appoint a trustee. Wallace v. Graves, 229 Ga. 82, 189 S.E.2d 447 (1972) (decided under former Code 1933, § 108-302).
Petitioners seeking summary removal of trustees must reveal essential facts.
- Petitioners coming into a court of equity seeking the summary removal of trustees and the appointment of a new trustee are not relieved by the language of the statute from revealing the essential facts which entitle the petitioners to this relief. Devitt v. Close, 221 Ga. 555, 146 S.E.2d 286 (1965) (decided under former Code 1933, § 108-315).
Cited in Boardman v. Taylor, 66 Ga. 638 (1881); Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931); Caldwell v. Hill, 179 Ga. 417, 176 S.E. 381 (1934); Regents of Univ. Sys. v. Trust Co., 186 Ga. 498, 198 S.E. 345 (1938); Mason v. Young, 203 Ga. 121, 45 S.E.2d 643 (1947); Williams v. J.M. High Co., 200 Ga. 230, 36 S.E.2d 667 (1946); Bethel Farm Bureau v. Anderson, 217 Ga. 529, 123 S.E.2d 754 (1962); Scott v. Scott, 218 Ga. 732, 130 S.E.2d 499 (1963); Simpson v. Anderson, 220 Ga. 155, 137 S.E.2d 638 (1964).
Appointment Generally
Nonresident trustee.
- Nonresident of Georgia may serve as trustee of a trust created in and to be administered in Georgia, even if the entire corpus of the trust property is located in the state. Munford v. Maclellan, 258 Ga. 679, 373 S.E.2d 368 (1988) (decided under former O.C.G.A. § 53-13-8).
Appointment of new trustee by superior court.
- When a will creates a trust estate, imposing upon the executor the additional duty to hold the legal title until the death of the daughter, the trust continues until the trust is fully executed by a sale of the property and distribution of the proceeds according to the terms of the will. In such case the superior court is empowered, after the death of the executor trustee, to appoint a new trustee in the place of such deceased. Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931) (decided under former Civil Code 1910, § 3746).
When it appears without dispute that the trustee had moved the trustee's residence to the state of New York, the court did not err in directing a verdict removing the trustee as trustee and entering the court's judgment on the verdict. King v. King, 228 Ga. 818, 188 S.E.2d 502 (1972) (decided under former Code 1933, § 108-315).
Probate court did not err by appointing a successor trustee pursuant to O.C.G.A. § 15-9-127 and former O.C.G.A. § 53-12-170 (see O.C.G.A. § 53-12-201) as even if a corporation had not rejected the trust property, the corporation did not have the power to act as a trustee in Georgia since the corporation had not received approval from the Georgia Department of Banking and Finance to act as a trust company; a county board of commissioners was properly appointed as the successor trustee in spite of the corporation's speculation over a possible future event that might result in a conflict of interest. Chattowah Open Land Trust, Inc. v. Jones, 281 Ga. 97, 636 S.E.2d 523 (2006) (decided under former O.C.G.A. § 53-12-170).
Petition by beneficiaries.
- It matters not how large the number of beneficiaries may be; the petition of two of the beneficiaries is sufficient in this respect to bring the petition within the jurisdiction of the superior court. Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931) (decided under former Civil Code 1910, § 3746).
All of the beneficiaries stand alike and have equal rights not only in the division of the proceeds arising from a sale of the property, but as to the forum in which the application for the appointment of a trustee should be made. The proceeding may be had as well in the county of the residence of the testator, and where the trust property is located, as in the county of the residence of the nonpetitioning beneficiaries. Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931) (decided under former Civil Code 1910, § 3746).
Power and authority of superior courts to appoint new trustees when the sole or surviving trustee has become disqualified in some manner cannot be exercised when the trust instrument provides the method of appointment of successors unless some reason appears that the method provided by the trust instrument cannot be followed. Devitt v. Close, 221 Ga. 853, 148 S.E.2d 316 (1966) (decided under former Code 1933, § 108-315).
Filling vacancies by looking at trust instrument.
- Trial court had to look to trust instrument to determine how a vacancy in position of trustee was to be filled as the law directed the trial court to start there in determining how to fill that position after the settlor and a trustee died, and the two successor co-trustees resigned before the trustee died, leaving the trust unrepresented. Thus, a trial court was authorized to allow the trust's beneficiaries to be appointed as successor trustees as the law allowed interested parties to petition and be appointed as trustees, especially since the law did not limit the number of successor trustees it could appoint and appointment of the successor trustees was neither inconsistent with the settlor's intentions nor the interests of the beneficiaries. Turner v. Bynum, 255 Ga. App. 173, 564 S.E.2d 784 (2002) (decided under former O.C.G.A. § 53-12-170).
Authority and Liability of Newly Appointed Trustee
New trustee has authority subject to same liabilities as predecessor trustee.
- When plaintiffs are suing as successor trustees, plaintiffs are barred by the statute of limitations if the original trustee is barred. Skinner v. DeKalb Fed. Sav. & Loan Ass'n, 246 Ga. 561, 272 S.E.2d 260 (1980) (decided under former Code 1933, § 3-710).
Change of trustees will not defeat claims against trust.
- In a quantum meruit claim against a trust, as well as in a breach of contract claim, the mere fact alone that the trustees have changed during the time of any agreement or receipt of services will not operate to defeat the claims against the trust. Trust Co. Bank v. Citizens & S. Trust Co., 260 Ga. 124, 390 S.E.2d 589 (1990) (decided under former O.C.G.A. § 51-12-5.1)
Effect of appointment when no trust estate.
- There being no trust at the time of the grant of the order appointing the trustee, one's appointment as such was inoperative and afforded the trustee no authority to institute actions in such representative capacity. Smith v. Frost, 144 Ga. 115, 86 S.E. 235 (1915) (decided under former law).
RESEARCH REFERENCES
Am. Jur. 2d.
- 76 Am. Jur. 2d, Trusts, §§ 214, 217, 224, 308.
24 Am. Jur. Pleading and Practice Forms, Trusts, § 84 et seq.
C.J.S.- 90 C.J.S., Trusts, §§ 215, 216, 219.
ALR.
- Right of surviving or remaining trustee or trustees to act without substitution of another trustee in place of one who has died or resigned or been removed, where the will or other trust instrument provides for substitution or replacement, 142 A.L.R. 1099.
Appointment and qualification of one of several trustees named in will as affecting power or duty of court to appoint a co-trustee, 151 A.L.R. 1308.
Court's power to appoint trustee to preserve, manage, and control personal property of nontrust life estate or other particular estate notwithstanding terms of will, 46 A.L.R.2d 502.
Hostility between trustee and beneficiary as ground for removal, 63 A.L.R.2d 523.
Court's power to appoint additional trustees over number specified in trust instrument, 59 A.L.R.3d 1129.
Propriety of sale of trust assets without consent despite trust provision requiring consent, 39 A.L.R.4th 158.
Liability of trustee for payments or conveyances under a trust subsequently held to be invalid, 77 A.L.R.4th 1177.