(For Effective Date, See note.) Power to Direct Modification or Termination; Petition to Modify or Terminate Irrevocable Trust; Proceeding to Approve Proposed Modification or Termination; Distribution of Trust Property Under Order for Termination; Waiver of Notice

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Trusts
  5. Reformation, Modification, Division, Consolidation, and Termination of Trusts
  6. (For Effective Date, See note.) Power to Direct Modification or Termination; Petition to Modify or Terminate Irrevocable Trust; Proceeding to Approve Proposed Modification or Termination; Distribution of Trust Property Under Order for Termination; Waiver of Notice

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  1. The trust instrument may confer upon a trustee or other person a power to modify or terminate the trust without court approval.
  2. During the settlor's lifetime, the court shall approve a petition to modify or terminate an irrevocable trust, even if the modification or termination is inconsistent with a material purpose of the trust, if the settlor and all qualified beneficiaries consent to such modification or termination and the trustee has received notice of the proposed modification or termination. A settlor's power to consent to such trust's modification or termination may be exercised by:
    1. An agent under a power of attorney only to the extent expressly authorized by the power of attorney and the provisions of the trust;
    2. The settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or
    3. The settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed.
  3. Following the settlor's death the court shall approve a petition to:
    1. Modify an irrevocable trust if all qualified beneficiaries consent, the trustee has received notice of the proposed modification, and the court concludes that modification is not inconsistent with any material purpose of such trust; and
    2. Terminate an irrevocable trust if all qualified beneficiaries consent, the trustee has received notice of the proposed termination, and the court concludes that continuance of such trust is not necessary to achieve any material purpose of such trust.
  4. The court may, upon petition:
    1. Modify the trust if, owing to circumstances not anticipated by the settlor, modification would further the purposes of such trust;
    2. Modify the administrative provisions of a trust if continuation of such trust under its existing provisions would impair such trust's administration;
    3. Modify the trust by the appointment of an additional trustee or special fiduciary if such appointment is necessary or helpful to the administration of such trust;
    4. Modify the trust to achieve the settlor's tax objectives, with such modification to have either prospective or retroactive effect;
    5. Order the division of a single trust into two or more trusts or the consolidation of two or more trusts, whether created by the same or different trust instruments or by the same or different persons, into a single trust if the division or consolidation would be helpful to the administration of such trust or trusts; or
    6. Terminate a trust and order distribution of the trust property if the:
      1. Costs of administration are such that the continuance of such trust, the establishment of such trust if it is to be established, or the distribution from a probate estate would defeat or substantially impair the purposes of such trust;
      2. Purpose of such trust has been fulfilled or become illegal or impossible to fulfill; or
      3. Continuance of such trust would impair the accomplishment of the purposes of such trust.
  5. A proceeding to approve a proposed modification or termination under this Code section may be commenced by a trustee, trust director, or beneficiary. A proceeding to approve a proposed modification or termination under subsection (b) of this Code section may be commenced by a trustee, trust director, beneficiary, or settlor. In the case of an unfunded testamentary trust, a petition for modification or termination under this Code section may be filed by the personal representative of the settlor's estate.
  6. Notice of a petition to modify or terminate a trust under subsection (d) of this Code section shall be given to the settlor, if living, the trustee, any trust director, all qualified beneficiaries, any holder of a power of appointment over the trust property, and such other persons as the court may direct.
  7. The court may modify or terminate a trust as provided in this Code section regardless of whether it contains spendthrift provisions or other similar protective provisions.
  8. An order under subsection (d) of this Code section shall conform as nearly as practicable to the intention of the settlor.
  9. Distribution of the trust property under an order for termination shall be made to or among the current beneficiaries and the vested remainder beneficiaries, or, if there are no vested remainder beneficiaries, among the current beneficiaries and the contingent remainder beneficiaries. The order shall specify the appropriate share, if any, of each current and remainder beneficiary who is to share in the proceeds of the trust so as to conform as nearly as practicable to the intention of the settlor. The order may direct that the interest of a minor beneficiary, or any portion thereof, be converted into qualifying property and distributed to a custodian pursuant to Article 5 of Chapter 5 of Title 44, "The Georgia Transfers to Minors Act."
  10. For purposes of this chapter, modification of a trust includes the consolidation or division of a trust.
  11. Subsections (b) and (c) of this Code section shall not apply to charitable trusts.
  12. Petitioning for or consenting to a modification or termination under this Code section shall not constitute a violation of a condition in terrorem under Code Section 53-12-22.
      1. Unless the trustee:
        1. Expressly waives notice in a writing signed by the trustee, notice to the trustee under subsection (b) or (c) of this Code section shall be given by delivery of a copy of the petition by certified or registered mail or statutory overnight delivery with return receipt requested and with delivery restricted to addressee only at least 31 days before the entry of an order granting the petition; and
        2. Expressly waives notice and assents to the petition in a writing signed by the trustee, the trustee shall have standing to intervene as a matter of right pursuant to paragraph (1) of subsection (a) and subsection (c) of Code Section 9-11-24 and to file a caveat or objection to the petition showing that one or more of the applicable requirements of subsection (b) or (c) of this Code section has or have not been satisfied, provided that the trustee must file any such pleadings provided by this division not more than 30 days following the express written waiver of notice by the trustee or delivery of notice to the trustee as provided in division (i) of this subparagraph or by such later date as the court may direct pursuant to subparagraph (B) of paragraph (2) of this subsection.
      2. Unless a person to be given notice under subsection (f) of this Code section:
        1. Expressly waives notice in a writing signed by such person, such notice shall be given by delivery of a copy of the petition by certified or registered mail or statutory overnight delivery with return receipt requested at least 31 days before the entry of an order granting the petition;
        2. Expressly waives notice and assents to the petition in a writing signed by such person, such person shall have standing to intervene as a matter of right pursuant to paragraph (1) of subsection (a) and subsection (c) of Code Section 9-11-24 and to file a caveat or objection to the petition showing that one or more of the applicable requirements of subsection (d) of this Code section has or have not been satisfied, provided that such person must file any such pleadings provided by this division not more than 30 days following the express written waiver of notice by such person or delivery of notice to such person as provided in division (i) of this subparagraph or by such later date as the court may direct pursuant to subparagraph (B) of paragraph (2) of this subsection, and further provided that such person is the settlor, the trustee, a trust director, a qualified beneficiary, or the holder of a power of appointment over the trust property; and
        3. Expressly waives notice and assents to the petition in a writing signed by such person, such person may file a motion for permissive intervention pursuant to paragraph (1) of subsection (b) and subsection (c) of Code Section 9-11-24 and a caveat or objection to the petition showing that one or more of the applicable requirements of subsection (d) of this Code section has or have not been satisfied, provided that such person must file any such pleadings provided by this division not more than 30 days following the express written waiver of notice by such person or delivery of notice to such person as provided in division (i) of this subparagraph or by such later date as the court may direct pursuant to subparagraph (B) of paragraph (2) of this subsection, and further provided that the court shall deny such motion for permissive intervention and dismiss such caveat or objection unless such person satisfactorily demonstrates to the court that he or she is a person whose interests would be affected directly and adversely by the grant of the petition.
      1. The petitioner shall certify to the court that notice has been waived or given in compliance with paragraph (1) of this subsection in a writing signed by the petitioner or by counsel for the petitioner and filed with the clerk to which all applicable executed waivers and return receipts are attached as exhibits.
      2. The court may direct any additional notice or extend the time to respond to a petition under this Code section as the judge may determine to be proper in the interests of due process and reasonable opportunity for any affected person or interest to be heard.
  14. The court may, in its sound discretion, conduct a hearing on a petition under this Code section, but such hearing shall not be required if no caveat or objection is timely filed by a person having standing under division (m)(1)(A)(ii) or (m)(1)(B)(ii) of this Code section or by a person granted permission to intervene by the court pursuant to division (m)(1)(B)(iii) of this Code section.

(Code 1981, §53-12-61, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2018, p. 262, § 7/HB 121; Ga. L. 2020, p. 377, § 1-76/HB 865.)

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018). For article, "To Tax or Not to Tax: State Income Tax on Trusts After North Carolina Department of Revenue v. The Kimberly Rice Kaestner 1992 Family Trust," see 25 Ga. St. B.J 26 (Feb. 2020).

JUDICIAL DECISIONS

Trust properly modified to remove trustees with consent of beneficiaries.

- Trial court did not err in modifying the trust to remove the trustees under O.C.G.A. § 53-12-61(c)(1), which provided that a petition to modify "shall" be granted if certain conditions were met; allowing the beneficiaries to change the trustees by modifying the trust did not conflict with O.C.G.A. § 53-12-221(a), the trustee removal statute. Glass v. Faircloth, 354 Ga. App. 326, 840 S.E.2d 724 (2020). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 70 Mercer L. Rev. 275 (2018).


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