Transfer of Property in Trust

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Trusts
  5. Creation and Validity of Express Trusts
  6. Transfer of Property in Trust

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  1. Transfer of property in trust shall require a transfer of legal title to the trustee. In any transfer of property or any interest in property, if a trust is named as a grantee, whether such trust is held under the laws of this state or of any other jurisdiction, then such transfer is deemed to have been made to the trustee of such trust as though the trustee of such trust had been named as grantee instead of the trust.
  2. For any interest in real property to become trust property in a trust of which any transferor is a trustee, the instrument of conveyance shall additionally be recorded in the appropriate real property records.

(Code 1981, §53-12-25, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2018, p. 262, § 6/HB 121.)

The 2018 amendment, effective July 1, 2018, in subsection (a), substituted "property in trust" for "property to a trust" in the first sentence, and added the second sentence.

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 65 Mercer L. Rev. 295 (2013). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018).

JUDICIAL DECISIONS

Wrongful death claim did not comprise the res of a technical trust.

- Creditors' 11 U.S.C. § 523(a)(4) claim against a Chapter 13 debtor, their attorney, was dismissed because although the attorney failed to file a wrongful death complaint on the creditors' behalf and represented to the creditors that the attorney had, the creditors failed to allege a contract or other agreement establishing a technical trust. The creditors' wrongful death cause of action did not comprise the res of a technical trust because under O.C.G.A. § 53-12-25 only property subject to transfer by the settler could become the subject matter of a trust, and under O.C.G.A. § 44-12-24 the creditors' wrongful death action was non-transferable. Crisler v. Farr (In re Farr), Bankr. (Bankr. M.D. Ga. May 18, 2011).

Retroactive application of statute prohibited.

- Rights of the decedent's surviving spouse were already vested when the Revised Georgia Trust Code of 2010 (Revised Code), O.C.G.A. § 53-12-1 et seq., was enacted because under the terms of the amended trust agreement, the surviving spouse's rights to the trust assets took effect upon the decedent's death before the Revised Code took effect. Accordingly, any new obligation imposed by the Revised Code that would have impaired the surviving spouse's right to possession could not be applied retroactively, and O.C.G.A. § 53-12-25 would have had no application to the trust if it, in fact, created such a new obligation. Rose v. Waldrip, 316 Ga. App. 812, 730 S.E.2d 529 (2012), cert. denied, No. S12C1888, 2012 Ga. LEXIS 981 (Ga. 2012).

Trial court improperly found that O.C.G.A. § 53-12-25(a) applied retroactively to the conveyance of a parcel of property because retroactive application of the statute could have impermissibly affected the beneficiary's vested rights. Callaway v. Willard, 351 Ga. App. 1, 830 S.E.2d 464 (2019), denied, 2020 Ga. LEXIS 165 (Ga. 2020).


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