Abuse of Trustee's Discretion

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Trusts
  5. Trust Investments
  6. Power of Adjustment and Unitrusts
  7. Abuse of Trustee's Discretion

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  1. A court shall not change a trustee's decision to exercise or not to exercise a discretionary power conferred by Code Section 53-12-361 or 53-12-362 unless it determines that the decision was an abuse of the trustee's discretion.
  2. The decisions to which subsection (a) of this Code section applies include:
    1. A determination of whether and to what extent an amount should be transferred from principal to income or from income to principal; and
    2. A determination of the factors that are relevant to the trust and its beneficiaries, the extent to which they are relevant, and the weight, if any, to be given to the relevant factors in deciding whether and to what extent to exercise the power conferred by Code Section 53-12-361 or 53-12-362.
  3. If a court determines that a trustee has abused its discretion regarding a discretionary power conferred by Code Section 53-12-361 or 53-12-362, the remedy shall be to restore the income and remainder beneficiaries to the positions they would have occupied if the trustee had not abused its discretion according to the following rules:
    1. To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or a distribution which is too small, the court shall require the trustee to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to the beneficiary's appropriate position;
    2. To the extent that the abuse of discretion has resulted in a distribution to a beneficiary which is too large, the court shall restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the trustee to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or requiring that beneficiary or that beneficiary's estate to return some or all of the distribution to the trust, notwithstanding a spendthrift provision or similar provision;
    3. If the abuse of discretion concerns the power to convert a trust into a unitrust, the court shall require the trustee either to convert into a unitrust or to reconvert from a unitrust; and
    4. To the extent that the court is unable, after applying paragraphs (1), (2), and (3) of this subsection, to restore the beneficiaries, the trust, or both to the positions they would have occupied if the trustee had not abused its discretion, the court may require the trustee to pay an appropriate amount from its own funds to one or more of the beneficiaries, the trust, or both.
  4. No provision of this Code section or Code Section 53-12-361 or 53-12-362 is intended to require a trustee to make an adjustment under Code Section 53-12-361 or a conversion under Code Section 53-12-362.

(Code 1981, §53-12-363, 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 "applies" for "apply" in the introductory language of subsection (b).


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