Granting of Powers by Qualified Beneficiaries

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Trusts
  5. Trustees' Duties and Powers
  6. Trustees' Powers
  7. Granting of Powers by Qualified Beneficiaries

Checkout our iOS App for a better way to browser and research.

The qualified beneficiaries of a trust that omits any of the powers in Code Section 53-12-261 may by unanimous consent authorize but not require the court to grant to the trustee those powers.

(Code 1981, §53-12-264, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2018, p. 262, § 22/HB 121.)

The 2018 amendment, effective July 1, 2018, deleted the former second sentence, which read: "With respect to any qualified beneficiary who is not sui juris, such consent may be given by the duly appointed conservator, if any, or if none, by the duly appointed guardian, if any, or if none, by either parent in the case of a minor, or if none, by a guardian ad litem appointed to represent the qualified beneficiary who is not sui juris."

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018).

PART 3 TRUSTEE AS BENEFICIARY

53-12-270. Exercise of power by trustee who is also a beneficiary.

  1. Subject to subsection (c) of this Code section, and unless the trust provisions expressly indicate that a rule in this subsection shall not apply:
    1. A person other than a settlor who is a beneficiary and trustee of a trust that confers on such trustee a power to make discretionary distributions to or for such trustee's personal benefit may exercise such power only in accordance with an ascertainable standard; and
    2. A trustee shall not exercise a power to make discretionary distributions to satisfy a legal obligation of support that such trustee personally owes another person.
  2. A power whose exercise is limited or prohibited by subsection (a) of this Code section may be exercised by a majority of the remaining trustees whose exercise of such power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power.
  3. Subsection (a) of this Code section shall not apply to:
    1. A power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as defined in Section 2056(b)(5) or 2523(e) of the federal Internal Revenue Code of 1986, was previously allowed;
    2. Any trust during any period that the trust may be revoked or amended by its settlor; or
    3. A trust if contributions to such trust qualify for the annual exclusion under Section 2503(c) of the federal Internal Revenue Code of 1986.

(Code 1981, §53-12-270, enacted by Ga. L. 2010, p. 579, § 1/SB 131.)

PART 4 CERTIFICATION OF TRUSTS

53-12-280. Certification of trust by trustee.

  1. The trustee may present a certification of trust to any person other than a beneficiary in lieu of providing a copy of the trust instrument to establish the existence of the trust provisions.
  2. The certification of trust provided for in subsection (a) of this Code section shall contain some or all of the following information:
    1. That the trust exists and the date of the trust and any amendments;
    2. The identity of each settlor;
    3. The identity and address of each current trustee and, if more than one, the number and identity of those required to exercise the powers of the trustee;
    4. The relevant powers of the trustee and any restrictions or limitations on those powers;
    5. The revocability or irrevocability of the trust;
    6. How trust property should be titled;
    7. Except as specifically disclosed in the certification, that the transaction at issue requires no consent or action by any person other than the certifying trustee; and
    8. Such other information as the trustee deems appropriate.
  3. A certification of trust:
    1. Shall be signed by each trustee;
    2. Shall state that the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification to be incorrect; and
    3. Need not contain the dispositive provisions of the trust.
  4. The recipient of a certification of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and any amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction.
  5. A person who acts in reliance upon the certification of trust without knowledge that any information therein is incorrect shall not be liable to any person for so acting and may assume without inquiry that the information is correct.
  6. A person who in good faith enters into a transaction in reliance upon the certification of trust may enforce the transaction as if the information in the certification were correct.
  7. A person making a demand for the trust instrument in addition to a certification of trust or excerpts shall be liable for damages, including court costs and attorney's fees, if the court determines that such demand was not made in good faith.
  8. This Code section shall not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust.
  9. A certification of trust in recordable form may be recorded in the office of the clerk of superior court.

(Code 1981, §53-12-280, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2011, p. 752, § 53/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, substituted "trust provided" for "trust as provided" in the introductory language of subsection (b).

PART 5 REGISTRATION AND DEPOSIT OF SECURITIES

COMMENT

This article was carried forward. It formerly was codified at OCGA §§ 53-13-79 through53-13-81.


Download our app to see the most-to-date content.