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title-53•Title 53 — Wills, Trusts, and Administration of Estates
title-53Ga. Code Ann. tit. 53CodeJan 1, 1900
Official Code of Georgia Annotated — Title 53. Wills, Trusts, and Administration of Estates
Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.
(a) This chapter and Chapters 2 through 11 of this title, as such chapters were enacted by an Act approved April 2, 1996 (Ga. L. 1996, p. 504), and as amended by an Act approved April 29, 1997 (Ga. L. 1997, p. 1352), and as such chapters may be amended in the future, shall be known and may be cited as the “Revised Probate Code of 1998.”
(b) Except as otherwise provided by law, the provisions contained in this chapter and Chapters 2 through 11 of this title shall be effective on January 1, 1998; provided, however, that no vested rights of title, year's support, succession, or inheritance shall be impaired.
As used in this chapter and Chapters 2 through 11 of this title, the term:
(1) “Administrator” means any person appointed and qualified to administer an intestate estate, including an intestate estate already partially administered by an administrator and from any cause unrepresented.
(2) “Administrator with the will annexed” means any person, other than an executor, appointed and qualified to administer a testate estate, including a testate estate already partially administered and from any cause unrepresented.
(3) “Beneficiary” means a person, including a trust, who is designated in a will to take an interest in real or personal property.
(4) “Codicil” means an amendment to or republication of a will.
(5) “County administrator” means any individual or individuals appointed by the probate court of the county and qualified to represent an estate that is unrepresented and unlikely to be represented.
(6) “Descendants” means the lineal descendants of an individual including those individuals who are treated as lineal descendants by virtue of adoption.
(7) “Executor” means any person nominated in a will who has qualified to administer a testate estate, including a person nominated as alternative or successor executor.
(8) “Guardian” means the guardian ad litem or representative described in Code Section 53-11-2 who represents one or more parties to a probate court proceeding who are not sui juris, are unborn, or are unknown.
(9) “Heirs” means those one or more individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent that is not disposed of by will.
(10) “Nominated executor” means any person nominated in the will to serve as executor who has not yet qualified to serve as executor.
(11) “Person” means an individual, corporation, partnership, association, joint-stock company, business trust, unincorporated organization, limited liability company, or two or more persons having a joint or common interest, including an individual or a business entity acting as a personal representative or in any other fiduciary capacity.
(12) “Personal representative” means any administrator, administrator with the will annexed, county administrator, or executor.
(13) “Qualified” means that a personal representative has taken the oath, posted any required bond, and been issued letters of administration or letters testamentary, as provided in this title.
(14) “Sui juris” means an individual is age 18 or over and not suffering from any legal disability.
(15) “Temporary administrator” means any person granted temporary letters of administration upon an unrepresented estate.
(16) “Testamentary gift” means the interest in real or personal property which a beneficiary is designated to take in a will.
(17) “Will” means the legal declaration of an individual's testamentary intention regarding that individual's property or other matters. Will includes the will and all codicils to the will.
There is no right of dower or tenancy by curtesy in this state.
Whenever income from an estate or trust is available for the benefit of an individual whose support is the legal obligation of another and the income is actually used for such individual's support, the legal obligation of the other to support the individual is reduced to the extent the income is actually used for such individual's support.
(a) An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent's estate, including, but not limited to, the right to recover under Code Sections 19-7-1, 51-4-2, or 51-4-4, and to serve as a personal representative or trustee of the decedent's estate or any trust created by the decedent. For purposes of this Code section, the killing or conspiring to kill or procuring another to kill is felonious and intentional if the killing would constitute murder or felony murder or voluntary manslaughter under the laws of this state.
(b) An individual who forfeits the right to take an interest from a decedent's estate by virtue of this Code section forfeits the right to take any interest such individual would otherwise take at the decedent's death by intestacy, year's support, will, deed, power of appointment, the right to recover under Code Sections 19-7-1, 51-4-2, or 51-4-4, or by any other conveyance duly executed during life by the decedent and is treated as having predeceased the decedent for purposes of determining the distribution of the decedent's property and of appointing personal representatives or trustees.
(c) This Code section shall have no effect on the rights of the descendants of the individual who forfeits the right to take from the decedent's estate; provided, however, that if the descendants are taking by intestacy in place of the individual who forfeits, the descendants may take only that share of the decedent's estate to which the individual who forfeits would have been entitled. The provisions of Code Section 53-4-64 shall not apply with respect to the descendants of the individual who forfeits the right to take from the decedent's estate unless those descendants are also descendants of the decedent.
(d) A final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive in civil proceedings under this Code section. In the absence of such a conviction or plea, the felonious and intentional killing must be established by clear and convincing evidence.
(a) In any case in which the United States Department of the Treasury or the Department of Revenue of this state determines that there exists an overpayment of federal or state income tax and the person in whose favor the overpayment is determined to exist is deceased at the time the overpayment is to be refunded, the amount of the overpayment, if not in excess of $2,500.00, shall be the sole and separate property of the decedent's surviving spouse, if any, irrespective of whether the decedent had filed a joint or separate income tax return.
(b) The refund of the overpayment directly to the surviving spouse as provided in subsection (a) of this Code section shall operate as a complete acquittal and discharge to the payor, whether the United States or this state, of liability from any action, claim, or demand of whatever nature by any heir, beneficiary, creditor of the decedent, or other person.
(c) Refunds are authorized to be made as provided in this Code section without the necessity of administration of the estate of the decedent, without the necessity of obtaining an order that no administration is necessary, and without the necessity of appointing a personal representative for the surviving spouse, notwithstanding any other law to the contrary.
A surviving spouse who is under the age of 18 years is entitled to apply for, take, and hold any share in the deceased spouse's estate to which the surviving spouse is entitled by virtue of being an heir or a beneficiary or being eligible for year's support without the intervention of a guardian or other trustee.
A decree of adoption, whether issued by a court of this state or by a court of any other jurisdiction, shall have the effect described in Code Section 19-8-19, and the adoptive parents and relatives of the adoptive parents shall likewise be entitled to inherit from and through the adopted individual under the laws of intestacy in the absence of a will and to take as parents or relatives of the parents of the adopted individual under the provisions of any instrument of testamentary gift, unless expressly excluded therefrom.
Except to the extent that the principles of common law and equity governing wills, trusts, and the administration of estates are modified by this title or another provision of law, those principles remain the law of this state.
(a) A lifetime transfer to a beneficiary of property that is the subject of a specific testamentary gift is treated as a satisfaction if it is shown pursuant to the provisions of subsection (c) of this Code section that the transfer is intended to satisfy the testamentary gift.
(b) A lifetime transfer of money or other property to a prospective heir or to the beneficiary of a demonstrative, general, or residuary testamentary gift is treated as an advancement if it is shown pursuant to the provisions of subsection (c) of this Code section that the transfer is intended to be a part of the share that the heir would inherit by intestacy or the beneficiary would take under the transferor's will.
(c) The intent to treat a lifetime transfer as a satisfaction or an advancement is shown only if the will provides for the deduction of the lifetime transfer or its value or if the satisfaction or advancement is declared in a writing signed by the transferor within 30 days of making the transfer or acknowledged in a writing signed by the recipient at any time.
Every advancement shall be valued without interest at its value at the time of the transfer unless a value or an interest rate is specified in writing at the time of acceptance or in the transferor's will.
(a) If a beneficiary has received a satisfaction, the beneficiary shall not receive any other property in replacement of the specific testamentary gift which is the subject of the satisfaction.
(b) If a beneficiary has received an advancement of all or a portion of a demonstrative or general testamentary gift, the value of the demonstrative or general testamentary gift shall be reduced by the value of the advancement.
(c) For purposes of this subsection, the term “distributable share” means the share an heir would receive under the laws of intestacy or a beneficiary would receive under the residuary clause of the transferor's will if the value of all advancements made by the transferor during life, except satisfaction of specific testamentary gifts and advancements of demonstrative or general testamentary gifts, were added to the actual value of the transferor's intestate or residuary estate at death. If a beneficiary has received an advancement of a residuary gift or an heir has received an advancement of an intestate share, the advancement shall be taken into account in the following manner:
(1) If a beneficiary or heir has received an advancement that is less than the value of that person's distributable share under the residuary clause of the transferor's will or the laws of intestacy, the share actually distributed to the beneficiary or heir shall be charged with the advancement so that the beneficiary or heir will receive only the balance remaining of the distributable share; or
(2) If a beneficiary or an heir has received an advancement that is equal to or in excess of the value of that beneficiary's or heir's distributable share, the beneficiary or heir shall receive no further share from the estate.
Unless the writing described in subsection (c) of Code Section 53-1-10 or the testator's will expressly provides otherwise, a satisfaction or an advancement is considered when computing the division and distribution of the transferor's estate even if the recipient of the satisfaction or advancement fails to survive the transferor.
(a) For purposes of this Code section, the term “property” includes any interest in property and any power over or right with respect to the property.
(b) Any person to whom an interest in property is transferred or who succeeds to property by contract or by operation of law may renounce the property in whole or in part as provided in this Code section. A person may renounce even if a spendthrift or similar restriction applies to the property renounced. Persons who may renounce include fiduciaries acting on behalf of an individual, such as personal representatives, trustees, conservators, or guardians, as well as duly authorized attorneys in fact, whether acting on behalf of an individual or fiduciary.
(c) A renunciation must be made by a written instrument that describes the renounced property, declares the renunciation and the extent of it, and is signed by the person making the renunciation.
(d) The written instrument must be received by the transferor of the property, the transferor's legal representative, or other holder of title to the property not later than the date which is nine months after the later of:
(1) The date of the transfer; or
(2) The day on which the person making the renunciation reaches the age of 21.
The instrument may also be filed in the probate court of the county in which proceedings concerning the transferor's estate are pending or in which they could be commenced and, in the case of real property, in the real property records of the county in which the real property is located. An instrument so filed in the probate court shall be conclusively presumed to have been received by the personal representative of the transferor's estate not later than the date of such filing, but earlier receipt may be shown.
(e) A person who has accepted property or any of its benefits may not renounce the property.
(f)(1)(A) Except as otherwise provided by the will or other governing instrument, a renunciation shall cause the renounced property to pass as if the person renouncing had predeceased the decedent or, in the case of property passing upon exercise of a power of appointment, as if the person renouncing had predeceased the holder of the power, even if the acceleration of a contingent remainder or other interest results. A will or other governing instrument may otherwise provide expressly or by implication, but the fact that a remainder or other future interest following a renounced interest is conditioned upon surviving the holder of such renounced interest shall not, without more, be sufficient to indicate that such conditioned interest should not accelerate by reason of such renunciation.
(B) Notwithstanding subparagraph (A) of this paragraph, solely for the purposes of the proviso of paragraph (5) and the proviso of paragraph (7) of subsection (c) of Code Section 53-2-1, any individual renouncing who is the only sibling or the only aunt or uncle surviving the decedent shall not be deemed to have predeceased the decedent.
(2) Renounced property that is the subject of an attempted outright gift shall be treated as an incomplete gift.
(3) A renounced power over property shall be treated as if such power had not been created with respect to the person renouncing such power.
(4) The expression in a renunciation of an intent or desire that the property pass to certain persons shall be considered merely precatory and shall have no legal effect unless specifically declared to be a condition of the renunciation.
(g) In every case a renunciation relates back for all purposes to the applicable date among the following:
(1) The date of death of the decedent;
(2) The date of the death of the holder of the power of appointment;
(3) The date the gift was attempted; or
(4) The date the power was created.
(h) This Code section does not abridge the right of any person to transfer or renounce any property under any other statute or common law. Any renunciation that is otherwise valid but fails to meet the requirements of subsections (c) and (d) of this Code section shall operate as a transfer of the property to those persons who would have received it had the renunciation met those requirements.
(i) Nothing in this Code section alters the duties of any fiduciary to act in the best interests of the person the fiduciary represents. This subsection shall not, however, limit the power granted by this Code section to a fiduciary to renounce property.
(a) As used in this Code section, the term:
(1) “Abandon” means that a parent of a minor child, without justifiable cause, fails to communicate with the minor child, care for the minor child, and provide for the minor child's support as required by law or judicial decree for a period of at least one year immediately prior to the date of the death of the minor.
(2) “Abandonment” means the act of abandoning.
(3) “Minor child” means a person who is less than 18 years of age.
(b) For purposes of this Code section:
(1) Children of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth; and
(2) The half-blood, whether on the maternal or paternal side, are considered equally with the whole-blood, so that the children of any common parent are treated as brothers and sisters to each other.
(c) Except as provided in subsection (d) of this Code section, when a decedent died without a will, the following rules shall determine such decedent's heirs:
(1) Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share;
(2) If the decedent is not survived by a spouse, the heirs shall be those relatives, as provided in this Code section, who are in the nearest degree to the decedent in which there is any survivor;
(3) Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
(4) Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;
(5) Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;
(6) Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;
(7) Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and
(8) The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent. The sum of the steps in the two chains shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.
(d) Except as provided in Code Sections 19-7-1 and 51-4-4 for the right of recovery for the wrongful death of a child, when a minor child dies without a will, a parent who willfully abandoned his or her minor child and has maintained such abandonment shall lose all right to intestate succession to the minor child's estate and shall not have the right to administer the minor child's estate. A parent who has been deprived of the custody of his or her minor child under an order of a court of competent jurisdiction and who has substantially complied with the support requirements of the order shall not be barred from inheriting from the minor child's estate.
(e) For cases in which abandonment is alleged, the moving party shall file a motion with the probate court requesting the judge to determine the issue of abandonment and shall serve all parties as set forth in subsection (f) of this Code section. A hearing shall be conducted and all parties shall have the opportunity to present evidence regarding the party's relationship with the decedent. The burden of proof to show an abandonment is on the person asserting the abandonment by clear and convincing evidence.
(f) All parties to a motion filed pursuant to subsection (e) of this Code section shall be served in accordance with Chapter 11 of this title. If a party cannot be personally served and the party's interest in an estate is subject to forfeiture pursuant to subsection (d) of this Code section, the judge shall appoint a guardian ad litem for the party. If a party cannot be personally served, the citation shall also be published in the newspaper in which sheriff's advertisements are published in the county where the party was last known to reside.
(g) In the event that a parent is disqualified from taking a distributive share in the estate of a decedent under subsection (d) of this Code section, the estate of such decedent shall be distributed in accordance with subsection (c) of this Code section as though the parent had predeceased the decedent.
The rights of inheritance of a child born out of wedlock shall be as follows:
(1) A child born out of wedlock may inherit in the same manner as though legitimate from or through the child's mother, the other children of the mother, and any other maternal kin;
(2)(A) A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless:
(i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
(ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity;
(iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship;
(iv) The father has signed the birth certificate of the child; or
(v) There is other clear and convincing evidence that the child is the child of the father.
(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may inherit from or through the father, other children of the father, or any paternal kin by reason of the paternal kinship if evidence of the rebuttable presumption of paternity described in this subparagraph is filed with the court before which proceedings on the estate are pending and the presumption is not overcome to the satisfaction of the trier of fact by clear and convincing evidence.
(ii) There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.
(C) If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this paragraph shall have been established and shall not have been rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father, the other children of his or her father, and any other paternal kin;
(3) In distributions under this Code section, the children of a deceased child born out of wedlock shall represent that deceased child.
(a) The mother of a child born out of wedlock, the other children of the mother, and other maternal kin may inherit from and through the child born out of wedlock in the same manner as though the child were legitimate.
(b) The father of a child born out of wedlock, the other children of the father, and other paternal kin may inherit from and through the child born out of wedlock in the same manner as if the child were legitimate if:
(1) A court of competent jurisdiction has entered an order declaring the child to be legitimate under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
(2) A court of competent jurisdiction has otherwise entered a court order establishing paternity;
(3) The father has, during the lifetime of the child, executed a sworn statement signed by the father attesting to the parent-child relationship; provided, however, that when the court determines by clear and convincing evidence that the father caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age, such sworn statement shall be insufficient for purposes of this subsection;
(4) The father has, during the lifetime of the child, signed the birth certificate of the child; or
(5) The presumption of paternity described in division (2)(B)(ii) of Code Section 53-2-3 has been established and has not been rebutted by clear and convincing evidence.
An individual conceived by artificial insemination and presumed legitimate in accordance with Code Section 19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of intestacy from the parents and from relatives of the parents, and the parents and relatives of the parents shall likewise be entitled to inherit as heirs from and through such individual.
An individual who is related to the decedent through two or more lines of relationship is entitled to only a single share based on the relationship entitling that individual to the largest share under the laws of intestacy.
(a) Upon the death of an intestate decedent who is the owner of any interest in real property, the title to any such interest which survives the intestate decedent shall vest immediately in the decedent's heirs at law, subject to divestment by the appointment of an administrator of the estate.
(b) The title to all other property owned by an intestate decedent shall vest in the administrator of the estate for the benefit of the decedent's heirs and creditors.
(c) Upon the appointment of an administrator, the title to any interest in real property which survives the intestate decedent shall vest in the administrator for the benefit of the heirs and creditors of the decedent, and title to such property shall not revest in the heirs until the administrator assents to such revesting. For purposes of this Code section, the assent of the administrator shall be proved in the manner set out in Code Section 53-8-15.
(d) Upon the appointment of an administrator, the right to the possession of the whole estate is in the administrator, and, as long as administration continues, the right to recover possession of the estate from all other persons is solely in the administrator. The administrator may recover possession of any part of the estate from the heirs at law or purchasers from them; but, in order to recover real property, it is necessary for the administrator to show, upon the trial, either that the property which is the subject of the action has been in the administrator's possession and without the administrator's consent is held by the defendant at the time of bringing the action or that it is necessary for the administrator to have possession for the purpose of paying the debts, making a proper distribution, or for other purposes provided for by law. An order for sale or distribution, granted by the judge of the probate court after notice to the defendant, shall be conclusive evidence of either fact.
(e) If an order has been entered under Code Section 53-2-41 that no administration is necessary, or if the administrator has assented to the vesting of title in the heirs, the heirs may take possession of the property or may sue for possession of the property in their own right.
(a) When the spouse of an intestate decedent dies intestate and without ascertainable heirs within six months of the decedent's death, any undistributed property of the decedent to which the spouse had been entitled prior to the spouse's death shall not escheat but shall be distributed to the heirs of the decedent who would have inherited the property under the intestacy laws if the spouse had predeceased the decedent.
(b) The nonexistence of heirs of the spouse may be determined by publication as provided in Code Section 53-2-51. If no heir of the spouse appears, the property, less the expenses of the proceedings to determine the nonexistence of heirs, shall be paid over as provided in subsection (a) of this Code section.
The identity or interest of any heir may be resolved judicially upon application to the probate court that has jurisdiction by virtue of a pending administration or that would have jurisdiction in the event of an administration of the estate of the decedent. Alternatively, the petition may be filed in the superior court of the county where the probate court having jurisdiction, as defined in this Code section, is located; provided, however, that, if the petition is filed in connection with a contested proceeding to determine a purported heir's entitlement to a year's support from the decedent's estate pursuant to Chapter 3 of this title, such petition must be filed in the probate court having jurisdiction. The proceedings for the determination of such questions shall conform to the requirements set forth in this article.
Any personal representative, guardian, conservator, committee, trustee, fiduciary, or other person having a status which by operation of law or written instrument devolves upon such person a duty of distributing property to heirs may file a petition for determination of heirship as provided in Code Section 53-2-20. The petition shall allege the names, addresses, ages, and relationship, so far as known to the petitioner, of all parties at interest other than creditors and the nature and character of such interests. The petition shall further allege whether the petitioner has reason to apprehend that there may be others entitled to participate in the distribution whose names are unknown to the petitioner.
Any individual claiming to be an heir or any person in any way interested as a distributee in any property under the laws of intestacy may apply to either the probate court or the superior court specified in Code Section 53-2-20 to have the claim of heirship and quantity of interest established. The petition in such a case shall contain the same averments as to all parties at interest required of persons filing under Code Section 53-2-21 with the person charged with the duty of distribution being named as a party.
Upon the filing in a superior court of a petition described in Code Section 53-2-21 or 53-2-22, service on the parties in interest shall be effected in the same manner as prescribed in cases in which equitable relief is sought; and the case shall thereafter proceed to judgment in the manner provided for such cases by the rules of practice in the superior courts.
Upon the filing in a probate court of a petition described in Code Section 53-2-21 or 53-2-22, a citation shall be issued and parties in interest shall be served as provided in Chapter 11 of this title.
Any individual claiming to be an heir or any person in any way interested as a distributee and who is not named as such in any petition filed and pending under this article may file a motion to intervene in the proceeding.
In the absence of fraud, the findings of the superior court or the probate court shall be binding and conclusive as to every person and as to every issue decided.
(a) When the kinship of any party in interest to a decedent is in controversy in any proceeding under this article, a probate court or superior court may order the removal and testing of deoxyribonucleic acid (DNA) samples from the remains of the decedent and from any party in interest whose kinship to the decedent is in controversy for purposes of comparison and determination of the statistical likelihood of such kinship. The court may order the disinterment of the decedent's remains if reasonably necessary to obtain such samples.
(b) The order may be made only on motion for good cause shown and upon notice to all parties in interest and shall specify the time, place, manner, conditions, and scope of the removal and testing of samples, and the person or persons by whom it is to be made. Such motion, when made by a party in interest, shall be supported by affidavit setting forth:
(1) The factual basis for a reasonable belief that the party in interest whose kinship to the decedent is in controversy is or is not so related; and
(2) If disinterment of the decedent's remains is sought, the factual basis for a reasonable belief that reliable DNA samples from the decedent are not otherwise reasonably available from any other source.
(c) Upon request, the movant shall deliver to all parties in interest a copy of a detailed written report of the tester and of any other expert involved in the determination of such statistical likelihood setting out his or her findings, including the results of all tests made and conclusions or opinions based thereon.
(d) The costs of obtaining and testing of such samples, including the costs of disinterment and reinterment of the remains of the decedent, if necessary, as well as the costs of providing the report, shall be assessed against and paid by the moving party.
(a) An administrator may distribute all or a portion of an intestate estate in kind in a distribution that is pro rata as to each asset.
(b) An administrator may distribute all or a portion of an intestate estate in kind in a distribution that is not pro rata as to each asset only upon the written consent of all the heirs or upon an order of the probate court made pursuant to a petition filed by an heir or the administrator.
(c) Nothing in this Code section shall be construed as limiting or restricting the method of distribution provided for in a will or as requiring the approval of the probate court for a distribution or division in kind made pursuant to the directions in a will. In all cases where the will directs or authorizes a distribution or division in kind but fails to direct specifically how or by whom the distribution or division in kind is to be made, it shall be the duty and authority of the executor or administrator with the will annexed to make the distribution or division in kind.
An heir or the administrator may petition the probate court for an order allowing a distribution in kind that is not pro rata as to each asset. The petition shall set forth the names and addresses of all the heirs and the requested distribution of the assets. Upon the filing of the petition, a citation shall be issued and parties in interest shall be served as provided in Chapter 11 of this title.
If no objection is made to the petition, the probate court shall order the administrator to distribute the assets in the manner requested in the petition. If objection is made, upon the evidence submitted, the probate court shall divide the assets in kind in shares that are pro rata or are not pro rata as to each asset and order the administrator to distribute the shares accordingly.
(a) When an individual has died intestate and there has been no personal representative appointed in this state, any heir of the decedent may file a petition praying for an order that no administration is necessary. The petition shall be filed in the probate court of the county of the domicile of the decedent, if the decedent was domiciled in this state, or in the county in which real property is located, if the decedent was not domiciled in this state.
(b) The petition shall show: the name and domicile of the decedent; the names, ages or majority status, and domicile of the heirs of the decedent; a description of the property in this state owned by the decedent; that the estate owes no debts or that there are known debts and all creditors have consented or will be served as provided in Chapter 11 of this title; and that the heirs have agreed upon a division of the estate among themselves. The agreement containing original signatures of all the heirs, attested to by a clerk of the probate court or a notary public, shall be attached to the petition. Property subject to an outstanding security deed or agreement may be subject to this proceeding only if the holder of the security deed consents or is served and makes no objection.
(c) The personal representative of a deceased heir is authorized to agree to the division on behalf of that heir.
(d) In any case involving the approval of a petition for an order that no administration is necessary, where there is an interest in real property, the court shall file, within 30 days of granting such petition, a certified copy of the order granting the petition that no administration is necessary in each county in this state in which the deceased owned real property, to be recorded in the deed records of the county and indexed under the name of the deceased in the grantor index. Such order shall be accompanied by the same fee for filing deeds with the clerk of the superior court. The filing fee and any fee for the recording of such order shall be taxed as costs to the estate. The certified copy of the order granting the petition that no administration is necessary shall set forth:
(1) The date of the order granting such petition;
(2) The name and address of the deceased;
(3) The interest in the property acquired by each party; and
(4) The name and address of all parties that take title to the real property pursuant to the order issued by the court.
(a) Upon the filing of a petition that states that there are known creditors of the estate who are to be served, a citation shall be issued and any creditors of the estate shall be served as provided in Chapter 11 of this title.
(b) If any creditor, whether the debt is due or not, objects to the granting of the order, the court shall refuse to grant an order finding that no administration is necessary so long as such objection is not withdrawn.
(c) In the event no creditor files objection to the granting of the order or if all objections are withdrawn, the probate court shall ascertain the heirs of the decedent and whether they are all of age and suffering under no disability or are represented by a guardian or a personal representative. If the court finds that all the heirs have consented and that the estate of the decedent owes no debts or that all creditors have consented or withdrawn any objection, the court shall then enter an order in the proceedings finding that no administration is necessary. Should property described in the petition be located in a county other than the county in which the petition is filed, a certified copy of the proceedings, including any agreement filed pursuant to Code Section 53-2-40, and the order of the probate court thereon may be entered in the office of the clerk of the superior court of the county in which the property is located.
(d) An order finding that no administration is necessary shall confirm the vesting of title to the decedent's property in the heirs in the amounts and portions described in Code Section 53-2-1, or, if different, in the agreement filed by the heirs in accordance with Code Section 53-2-40.
(e) Property thereafter sold or encumbered by the heirs of the decedent to a purchaser or lender who acts in good faith reliance upon the order shall be discharged from all claims and rights of the creditors of the deceased owner, except such claims, liens, judgments, security deeds, mortgages, or encumbrances as have been filed for record in the manner required by law so as to constitute notice thereof at the time of such sale or encumbrance by the heirs.
(f) Nothing in this chapter shall be deemed to apply to or adversely affect liens for taxes or liens arising from the giving or signing of the bond of a public official.
After the granting of an order by the probate court that no administration is necessary, any creditor of the decedent shall have a right of action on the unsatisfied debts against the heirs, to the extent of the value of property received by the heirs.
As used in this article, the term “escheat” is the reversion of property to the state upon a failure of heirs of a decedent to appear and make claim for or against property owned by the decedent at death for which no other disposition was provided either by will or otherwise.
(a) If no person has appeared and claimed to be an heir within four years from the date letters of any kind on an intestate decedent's estate were granted, the personal representative shall petition the probate court of the county in which the letters were granted for determination that property has escheated to the state. Such a petition shall set forth the full name of the decedent, the date of death, the fact that no person has appeared and claimed to be an heir, and the property of the estate which may have escheated to the state.
(b) Upon filing of the petition, the probate court shall issue a citation as provided Chapter 11 of this title, requiring the heirs, if any, to file any objection to the petition by a date that is at least 60 days from the date of the citation, and shall order notice by publication to all heirs of the decedent as provided in Code Section 53-11-4.
(c) If no individual files objection as an heir who is entitled to the property on or before the date set in the citation, the court shall order the property to be paid over and distributed to the county board of education to become a part of the educational fund.
(d) If an individual files objection as an heir who is entitled to property, such claim shall be tried as other actions before the court. In such case, no property shall be paid over or distributed to the county board of education until the claim is determined in such manner as to establish that any individual making the claim is not entitled to the property.
(e) When property is paid over or distributed to a county board of education, the administration of the estate shall be terminated following a final return and the granting of a petition for discharge.
(f) The proceedings shall be conclusive upon and shall bind all the heirs of the estate.
(g) All expenses incurred in the administration of such proceedings shall be paid from the property or proceeds of the estate.
(a) As used in this chapter, the terms “child” or “children” mean any minor child who would be entitled to inherit if the child's parent died intestate.
(b) Among the necessary expenses of administration and to be preferred before all other debts or demands, except as specifically provided otherwise in this chapter and notwithstanding any other provision of law to the contrary, is the provision of year's support for the family.
(c) The surviving spouse and minor children of a testate or intestate decedent are entitled to year's support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent's death.
(a) A surviving spouse's right to year's support shall be barred by the marriage or death of the spouse prior to the filing of the petition for year's support.
(b) A minor child's right to year's support shall be barred by the marriage or death of the minor or by the minor's attaining the age of 18 years prior to the filing of the petition for year's support.
A testator by will may make provision for the spouse in lieu of year's support, in which case the surviving spouse must make an election.
(a) As used in this Code section, the term “homestead” shall have the same meaning as set forth in Code Section 48-5-40.
(b)(1) In solvent and insolvent estates, all taxes and liens for taxes accrued for years prior to the year of the decedent's death against the homestead set apart and against any equity of redemption applicable to the homestead set apart shall be divested as if the entire title were included in the year's support. Additionally, as elected in the petition, property taxes accrued in the year of the decedent's death or in the year in which the petition for year's support is filed or, if the petition is filed in the year of the decedent's death, in the year following the filing of the petition shall be divested if the homestead is set apart for year's support; provided, however, that, if the property taxes elected in the petition pursuant to this paragraph are paid after the filing of the petition but prior to the entry of the order setting apart the homestead for year's support, the property taxes accrued in the year following the year elected in the petition shall be divested instead.
(2) In solvent and insolvent estates, if the homestead is not claimed, all taxes and liens for taxes accrued for years prior to the year of the decedent's death against the real property set apart and against any equity of redemption applicable to the real property set apart shall be divested as if the entire title were included in the year's support. Additionally, as elected in the petition, property taxes accrued in the year of the decedent's death or in the year in which the petition for year's support is filed or, if the petition is filed in the year of the decedent's death, in the year following the filing of the petition shall be divested if the real property is set apart for year's support; provided, however, that, if the property taxes elected in the petition pursuant to this paragraph are paid after the filing of the petition but prior to the entry of the order setting apart the real property for year's support, the property taxes accrued in the year following the year elected in the petition shall be divested instead.
(a) Upon the death of any individual leaving an estate solvent or insolvent, the surviving spouse or a guardian or other person acting in behalf of the surviving spouse or in behalf of a minor child may file a petition for year's support in the probate court having jurisdiction over the decedent's estate. If the petition is brought by a guardian acting on behalf of a minor child, no additional guardian ad litem shall be appointed for such minor child unless ordered by the court.
(b) The petition shall set forth, as applicable, the full name of the surviving spouse, the full name and birthdate of each surviving minor child, and a schedule of the property, including household furniture, that the petitioner proposes to have set apart as year's support. The petition shall describe fully and accurately any real property the petitioner proposes to have set apart as year's support with a legal description sufficient under the laws of this state to pass title to the real property.
(c) A petition for year's support shall be filed within 24 months of the date of death of the decedent.
(a) As used in this Code section, the term “interested persons” means the decedent's children, spouse, other heirs, beneficiaries, and creditors and any others having a property right in or claim against the estate of the decedent that may be affected by the year's support proceedings.
(b) Upon the filing of the petition, the probate court shall issue a citation and publish a notice in the official newspaper of the county in which the petition is made once a week for four weeks, citing all interested persons to show cause by a date certain why the petition for year's support should not be granted.
(c)(1) If there is a personal representative of the decedent's estate, then, in addition to the issuance of citation and publication of notice required by subsection (b) of this Code section, the probate court shall cause a copy of the citation to be served upon the personal representative of the decedent's estate. The personal representative shall be served not fewer than 30 days prior to the date and time shown in the citation for objections to be filed.
(2) If there is no personal representative of the decedent's estate, then, in addition to the issuance of citation and publication of notice required by subsection (b) of this Code section, the petitioner or the attorney for the petitioner shall file with the probate court an affidavit, upon oath, showing the name, last known address, and age if less than age 18 of each interested person and stating that the petitioner or the attorney for the petitioner has listed all known interested persons and has made reasonable inquiry to ascertain the names, last known addresses, and ages of all interested persons. The probate court shall serve by first-class mail a copy of the citation on each interested person shown on the affidavit not fewer than 30 days prior to the date and time shown in the citation for objections to be filed.
(3) If the sole personal representative of the decedent's estate and the petitioner or the guardian of the petitioner are the same person, then paragraph (2) of this subsection shall govern as if the decedent's estate had no personal representative.
(d) The probate court shall serve by first-class or interoffice mail, as applicable, a copy of the petition within five days of its filing on the tax commissioner or tax collector of any county in this state in which real property proposed to be set apart as year's support is located.
(a) If no objection is made after the publication of the notice, or, if made, is disallowed or withdrawn, the probate court shall enter an order setting apart as year's support the property applied for in the petition.
(b) If objection is made, the probate court shall hear the petition and, upon the evidence submitted, shall determine the property to be set apart as year's support according to the standards set out in subsection (c) of this Code section. If an appeal is taken, pending the appeal the petitioners shall be furnished with necessaries by the personal representative or temporary administrator of the estate, as allowed by the probate court.
(c) If objection is made to the amount or nature of the property proposed to be set apart as year's support, the court shall set apart an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent, taking into consideration the following:
(1) The support available to the individual for whom the property is to be set apart from sources other than year's support, including but not limited to the principal of any separate estate and the income and earning capacity of that individual;
(2) The solvency of the estate; provided, however, that, if the decedent dies having a deposit in a financial institution that is applied to the payment of the funeral expenses and expenses of the last illness of the decedent under subsection (c) of Code Section 7-1-239, any effect such payment may have on the solvency of the estate shall not operate adversely to the surviving spouse or any minor child in the determination of the amount to be set apart as year's support; and
(3) Such other relevant criteria as the court deems equitable and proper.
The petitioner for year's support shall have the burden of proof in showing the amount necessary for year's support.
(a) If the decedent leaves a minor child or minor children by an individual or individuals other than the surviving spouse, the probate court shall specify the portion going to the minor child or minor children of such individual or individuals, and the portion so specified shall vest in that child or those children.
(b) If the decedent leaves one or more minor children and the surviving spouse is the parent of all such minor children, the probate court may in its discretion specify separate portions for such minor children and the surviving spouse if the court deems the award of separate portions to be in the best interests of the parties, and the portions so specified shall vest separately in the surviving spouse and such minor children.
(c) If the decedent leaves one or more minor children for whom the probate court specifies separate portions under subsection (a) or (b) of this Code section, personal property in the portions so specified shall be delivered and received in compliance with Code Section 29-3-1.
(a) Except as otherwise provided in Code Section 53-3-8, title to the property set apart shall vest in the surviving spouse and child or children or, if there is no surviving spouse, in the children, share and share alike; and the property shall not be administered as the estate of the deceased spouse or parent.
(b) When property is set apart as a year's support for the benefit of the surviving spouse alone, the spouse shall thereafter own the same in fee, without restriction as to use, encumbrance, or disposition.
The probate court may award year's support as to property located inside or outside the county where the decedent was domiciled at the time of death; and title to property both inside and outside the county where the decedent was domiciled at the time of death shall vest in the surviving spouse, spouse and children, or children only, as applicable.
(a) When the probate court grants an order for year's support which awards an interest in real property located in this state, within 30 days after granting the order the court shall cause a certificate for the order to be filed with the clerk of the superior court in the county of this state where the real property or any part of the real property is located. The certificate shall:
(1) Identify in the manner provided in Code Section 53-3-5 those individuals receiving the interest;
(2) Identify the interest received;
(3) Contain a legal description sufficient under the laws of this state to pass title to the real property in which the interest was received, provided that the words “Also lands in _____ County(ies),” which accurately identifies other counties within which the real property is located, shall be sufficient to describe real property located outside the county to which the order or a copy of the order was sent; and
(4) Contain a certification by the probate court that the information in the certificate is correct.
(b) The certificate to be filed under subsection (a) of this Code section shall be accompanied by the same fee required for the filing of deeds with the clerk of the superior court. The filing fee and any fee for the certificate shall be taxed as costs to the estate.
(c) The clerk of any superior court receiving the certificate provided in subsection (a) of this Code section shall file and record the certificate upon the deed records of that county. The certificate shall be indexed according to the names appearing on the certificate as follows:
(1) The grantor is the name of decedent; and
(2) The grantee is the name of the individual or individuals to whom the award was made.
(d) Upon the filing and recording as provided in subsection (c) of this Code section, the certificate shall be returned to the probate court from whom it was received, for inclusion in the probate court's permanent file. The probate court shall not be required to enter a certificate on the minutes of the court after the return of a certificate recorded under subsection (c) of this Code section.
(a) The fees of the probate court shall be paid by the petitioner for year's support out of the fund set apart for such petitioner or for the surviving spouse or a minor child in whose behalf the petitioner acted pursuant to subsection (a) of Code Section 53-3-5.
(b) The probate court may issue a writ of fieri facias against the personal representative or temporary administrator of the estate for the amount awarded as provided in subsection (a) of this Code section.
(c) The issuance by the probate court of a writ of fieri facias against the temporary administrator of the estate as provided in subsection (b) of this Code section shall be deemed a proper order under Code Section 53-7-4 for the payment by the temporary administrator of the amount awarded as provided in subsection (a) of this Code section.
The right of a surviving spouse or minor child to year's support from the estate of a decedent shall be barred by a sale or conveyance made prior to the award of year's support by the personal representative or temporary administrator of the estate under authority of a court of competent jurisdiction or under power in a will; provided, however, that the sale or conveyance shall bar year's support and rights to year's support only as to the property sold or conveyed.
If year's support is set apart for the benefit of any individual in or with respect to real property on which there is a recorded option to purchase or contract to sell outstanding at the time the same is so set apart, the individual and any purchasers or lessees of the real property, after the same has been so set apart, shall take the real property or any interest therein subject to all of the rights and privileges of the grantee of the option or contract and of any assignees of the option or contract if the assignment or assignments are also recorded.
A conveyance, contract, or lien made or created by the surviving spouse or by the guardian of the minor child or children shall be superior to the title and interest of the surviving spouse or minor child or children under year's support subsequently applied for and set apart.
Whenever the vendor of real property makes a deed to such real property and takes a mortgage to secure the purchase money for such real property, neither the surviving spouse nor the children of the vendee shall be entitled to year's support in the real property as against the vendor or the vendor's heirs or assigns until the purchase money is fully paid.
Whenever the vendor of personal property, at the time of selling and delivering such personal property, takes a mortgage or other security interest to secure the payment of the purchase money for such personal property, neither the surviving spouse nor the minor child or children of the vendee shall be entitled to year's support in the personal property as against the vendor or the vendor's heirs, personal representatives, or assigns until the purchase money of the personal property is fully paid; provided, however, that the mortgage or other security interest shall expressly state that the same is executed and delivered for the purpose of securing the debt for the purchase.
Whenever a tenant dies owing a landlord for rent or for supplies for which the landlord has a special lien on the crops made on the lands rented from the landlord in the year the rent accrued or supplies were furnished, neither the surviving spouse nor spouse and minor children nor minor child or children only of the tenant shall be entitled to year's support out of the crops so planted or grown in that year as against the landlord until the accounts for the rent and supplies are fully paid, provided that the surviving spouse shall be entitled to year's support in such part of the crop as may remain after the landlord's lien for rent and supplies shall have been discharged.
(a) When property is set apart as year's support for the joint benefit of the surviving spouse and the minor child or children, a conveyance or encumbrance of the same or any or all parts of such property by the surviving spouse shall convey or encumber the title and interest of the spouse and shall be binding and conclusive upon the spouse.
(b) The conveyance or encumbrance of any or all the property set apart as year's support for the joint benefit of the surviving spouse and the minor child or children shall convey or encumber and be binding and conclusive upon the child or children and person claiming through or under them only when approved by the probate court of the county in which the year's support award was made. No such approval shall be necessary to bind a child who is sui juris and who joins with the surviving spouse in making the conveyance or encumbrance.
(c) The purchaser or lender shall not be responsible for the proper use or application of the proceeds derived from a sale or encumbrance contemplated under this Code section.
(a) The approval of the probate court required by subsection (b) of Code Section 53-3-19 shall be obtained in the following manner: The surviving spouse shall petition the probate court, stating the purposes of the proposed conveyance or encumbrance and describing the property the spouse desires to convey or encumber, the nature of the proposed conveyance or encumbrance, and the names, last known addresses, and ages of the children for whose benefit the year's support was set apart. If the surviving spouse has died, the petition may be made by the guardian for any one or more of the children for whose benefit the year's support was set apart. The probate court shall set a date for hearing on the petition and shall appoint a guardian ad litem who shall accept the appointment in writing to represent the minor children. Not less than ten days prior to the date set for the hearing, personal service shall be made on each child for whose benefit the year's support was set apart who has attained the age of 18 at the time the petition is filed. If the surviving spouse does not know and cannot easily ascertain the addresses of any of the children, service shall be made by publishing notice of the date and purpose of the hearing one time and by posting a copy of the notice at the courthouse not less than ten days prior to the date set for the hearing. In addition to publication, the probate court shall mail a copy of the notice to the last known address of each child whose current address is unknown, not less than ten days prior to the date set for such hearing. Objections, if any, shall be made in writing.
(b) At the hearing, the probate court shall determine that service has been made as required by this Code section and that the purpose or purposes of the proposed conveyance or encumbrance are proper and shall pass an order reciting due compliance with this Code section and approval of the proposed conveyance or encumbrance, which order shall be final and conclusive.
(c) The proceedings shall be indexed and recorded in books to be kept for that purpose by the probate court in each county in which any of the property is located.
(d) An appeal shall lie in the manner, under the restrictions, and with the effect provided for appeals from the probate court in other cases.
If there is no personal representative of the decedent's estate, the probate court may appoint a temporary administrator as provided in Code Section 53-6-30 to perform the duties of a personal representative under subsection (b) of Code Section 53-3-7 or under subsection (b) of Code Section 53-3-12; provided, however, that the appointment of such temporary administrator shall not alter or affect the citation, notice, and mailing requirements of Code Section 53-3-6.
A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator's spouse and descendants.
A will shall take effect instantly upon the death of the testator however long probate may be postponed.
No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will.
(a) Any writing in existence when a will is executed may be incorporated into the will by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
(b) This Code section shall not be construed to imply that the common law does not permit the incorporation of an extrinsic document into a will by reference in the manner authorized under subsection (a) of this Code section.
(a) A written statement or list meeting the requirements of subsection (b) of this Code section shall dispose of items of tangible personal property, other than money, not otherwise specifically disposed of by the testator's will. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of a more recent writing revoke the inconsistent provisions of each prior writing.
(b) A written statement or list meets the requirements of this subsection if such writing:
(1) Is signed and dated by the testator;
(2) Describes the items and the beneficiaries with reasonable certainty; and
(3) Is referred to in the testator's will.
The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation, provided that it is signed and dated on the date of such alteration; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.
(a) Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action.
(b) An individual who has been convicted of a crime shall not be deprived of the power to make a will.
(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
(b) An incapacity to contract may coexist with the capacity to make a will.
(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.
A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator's freedom of volition, such as fraudulent practices upon the testator's fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.
(a) A will shall be in writing and shall be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator's will.
(b) A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness's presence and at that witness's direction.
(c) A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will.
Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator's signature or acknowledgment of that signature is presumed to show such knowledge.
(a) Any individual who is competent to be a witness and age 14 or over may witness a will.
(b) If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will.
(a) If a subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will.
(b) An individual may be a witness to a will by which a testamentary gift is given to that individual's spouse, the fact going only to the credibility of the witness.
(a) At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.
(b) The affidavit shall be evidenced by a certificate, affixed with the official seal of the notary public, that is attached or annexed to the will or codicil, in form and content substantially as follows:
| | STATE OF GEORGIA | | --- | --- | | | COUNTY of _______________ |
Before me, the undersigned authority, on this day personally appeared _____, _____, and _____, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said individuals being by me duly sworn, _____, testator, declared to me and to the witnesses in my presence that said instrument is the last will and testament or a codicil to the last will and testament of the testator and that the testator had willingly made and executed it as a free act and deed for the purposes expressed therein. The witnesses, each on oath, stated to me in the presence and hearing of the testator that the testator had declared to them that the instrument is the testator's last will and testament or a codicil to the testator's last will and testament and that the testator executed the instrument as such and wished each of them to sign it as a witness; and under oath each witness stated further that the witness had signed the same as witness in the presence of the testator and at the testator's request; that the testator was 14 years of age or over and of sound mind; and that each of the witnesses was then at least 14 years of age.
| | _________________________________________________ | | --- | --- | | | Testator | | | _________________________________________________ | | | Witness | | | _________________________________________________ | | | Witness |
Sworn to and subscribed before me by _____, testator, and sworn to and subscribed before me by _____ and _____, witnesses, this _____ day of _____, _____.
| | (SEAL) | | | --- | --- | --- | | | (Signed) | ________________________________ | | | | (Official Capacity of Officer) |
(c) A self-proved will or codicil may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently from a will or codicil that is not self-proved. In particular, without limiting the generality of the foregoing sentence, a self-proved will or codicil may be contested, revoked, or amended in exactly the same fashion as a will or codicil that is not self-proved.
A contract made on or after January 1, 1998, that obligates an individual to make a will or a testamentary disposition, not to revoke a will or a testamentary disposition, or to die intestate shall be express and shall be in a writing that is signed by the obligor.
(a) A joint will is one will signed by two or more testators that deals with the distribution of the property of each testator. A joint will may be probated as each testator's will.
(b) Mutual wills are separate wills of two or more testators that make reciprocal dispositions of each testator's property.
The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills.
(a) A joint will or mutual wills may be revoked by any testator in the same manner as any other will.
(b) Revocation of a joint will or a mutual will by one of the testators shall not revoke the will of any other testator.
A will may be changed or revoked by the testator at any time prior to the testator's death.
In all cases of revocation, the intent to revoke is necessary.
(a) A revocation may be express or implied.
(b) An express revocation occurs when the testator by writing or action expressly annuls a will. An express revocation takes effect instantly.
(c) An implied revocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will. An implied revocation takes effect only when the subsequent inconsistent will becomes effective. If the subsequent inconsistent will fails to become effective from any cause, the implied revocation is not completed.
An express revocation may be effected by a subsequent will or other written instrument that is executed, subscribed, and attested with the same formality as required for a will.
An express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent to revoke or by another at the testator's direction. The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.
(a) If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by a later will or other written instrument, as described in Code Section 53-4-43, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
(b) If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by an act, as described in Code Section 53-4-44, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the circumstances of the revocation of the will or other written instrument or from the testator's contemporaneous or subsequent declarations that the testator intended the previous will to take effect.
(c) If a will or other written instrument that expressly revoked or amended a previous will in part is revoked by a later will or other written instrument, as described in Code Section 53-4-43, the revoked or amended part of the previous will is revived to the extent it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
(d) If a will or other written instrument that expressly revoked or amended a previous will in part is revoked by an act, as described in Code Section 53-4-44, the revoked or amended part of the previous will is revived unless it is evident from the circumstances of the revocation of the will or other written instrument or from the testator's contemporaneous or subsequent declarations that the testator did not intend the revoked or amended part of the previous will to take effect as executed.
(e) If a will or other written instrument that expressly revoked a previous will in whole or in part is revoked by a later will or other written instrument, as described in Code Section 53-4-43, or by an act, as described in Code Section 53-4-44, and the previous will or any revoked or amended portion is not revived in accordance with the provisions of this Code section, the previous will may be republished in whole or in part in accordance with Code Section 53-4-50.
(a) A presumption of intent to revoke arises if the original of a testator's will cannot be found to probate.
(b) A copy of a will may be offered for probate in accordance with Chapter 5 of this title in lieu of the original will if the original cannot be found to probate, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke set forth in subsection (a) of this Code section is rebutted by a preponderance of the evidence.
An implied revocation extends only so far as an inconsistency exists between testamentary instruments. Any portion of a prior instrument that can stand consistently with the testamentary scheme in a subsequent instrument shall remain unrevoked.
(a) Except as otherwise provided in Code Section 53-4-49, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator's death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will only to the extent provided in the remainder of this Code section.
(b) A provision in a will for a class of the testator's children shall be presumed to be made in contemplation of the birth or adoption of additional members of that class, absent an indication of a contrary intent, and the mere identification in the will of children already born or adopted at the time of the execution of the will shall not defeat this presumption.
(c) If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or child shall receive the share of the estate he or she would have received if the testator had died intestate. Such share shall be paid from the net residuum remaining after all debts and expenses of administration, including taxes, have been paid. If the residuum proves to be insufficient, then testamentary gifts shall abate in the manner provided in subsection (b) of Code Section 53-4-63. Any bequest in the will in favor of the subsequent spouse or child shall be given effect and shall count toward the intestate share. If the bequest equals or exceeds the intestate share, then the subsequent spouse or child shall receive the bequest in lieu of the intestate share provided by this subsection.
All provisions of a will made prior to a testator's final divorce or the annulment of the testator's marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator, and the provisions of Code Section 53-4-64 shall not apply with respect to the descendants of the former spouse who are not also descendants of the testator. If the testator remarries the former spouse and the testator has not revoked or amended the will that was made prior to the divorce or annulment, the remarriage shall not result in the revocation of the will and the provisions of the will that were revoked solely due to the application of this Code section shall be revived.
A revoked will may be republished by a writing executed by the testator and subscribed and attested by witnesses with the same formality required for a will.
In the construction of all wills, the court shall seek diligently for the intention of the testator and shall give effect to such intention as far as it may be consistent with the rules of law. Provided the proof of intention is clear and convincing, the court may transpose sentences or clauses, change conjunctions, and supply or delete words in cases in which a sentence or clause as it stands is unintelligible or inoperative in context.
In construing a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of execution to explain all ambiguities, whether latent or patent.
If a will is illegal in part, the part that is legal may be sustained; but if the whole will so constitutes one testamentary scheme that the legal portion alone cannot give effect to the testator's intention, the whole will shall fail.
If at the time of execution of the will the testator fails to provide in the will for a living child of the testator solely because the testator believes the child to be dead, the child is entitled to receive a share in the estate as follows:
(1) If the testator had no other child living at the time the will was executed, an omitted child receives a share equal in value to that which the child would have received had the testator died intestate but only to the extent that any provision in the will to or for the benefit of the surviving parent of the omitted child is not thereby reduced; or
(2) If the will contains testamentary gifts to one or more other children of the testator, an omitted child is entitled to receive the share of the estate that the child would have received had the testator included all omitted children with the children to whom testamentary gifts were made under the will and had given an equal share to each child. To the extent feasible, the interest granted an omitted child must be of the same character, whether legal or equitable, present or future, as that left to the testator's other children under the will. In satisfying the share for the omitted child, the shares of the other children shall abate ratably, preserving to the maximum extent possible the testamentary plan adopted by the testator.
Testamentary gifts may be specific, demonstrative, general, or residuary. A specific testamentary gift directs the delivery of property particularly designated. A demonstrative testamentary gift designates the fund or property from which the gift is to be satisfied but nevertheless is an unconditional gift of the amount or value specified. A general testamentary gift does not direct the delivery of any particular property. A residuary testamentary gift includes all the property of the estate that is not effectively disposed of by other provisions of the will.
The income, profit, or increase of specific testamentary gifts, as a general rule, goes with the gift though the time of enjoyment or vesting may be postponed.
(a) A general or demonstrative testamentary gift usually bears interest at the legal rate after the expiration of 12 months from the death of the testator; provided, however, that when a general or demonstrative testamentary gift is to be paid at a later time or upon a later event, it bears no interest until such time or event.
(b) The general rule described in subsection (a) of this Code section yields to the equity and necessity of a particular case if the condition of the estate as to the payment of debts and testamentary gifts is doubtful or if the fund out of which the testamentary gift is to be paid is unavailable for all the charges made upon it or if any other equitable circumstance intervenes.
If a testamentary gift to a charity cannot be executed in the exact manner provided by the testator, the superior court may exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the testator.
(a) Unless otherwise directed, the debts of the testator and expenses of administration of the estate shall be paid out of the residuum. Unless otherwise provided in the will, a residuary gift or any part thereof, including a residuary gift to a surviving spouse in lieu of year's support, shall be deemed a gift of the net residuum or part thereof remaining after all debts of the testator and expenses of administration of the estate, including taxes, have been paid.
(b) If the residuum proves to be insufficient for the payment of the debts of the testator and the expenses of administration of the estate, then general testamentary gifts shall abate pro rata to make up the deficiency. If general testamentary gifts are insufficient, then demonstrative testamentary gifts shall abate in the same manner. If both general and demonstrative gifts are insufficient, then specific gifts shall abate in the same manner.
(c) After the estate assets in the hands of the personal representative are exhausted, a creditor may proceed against each beneficiary for that beneficiary's pro rata share of the debts to the extent a testamentary gift has been distributed to that beneficiary.
(d) Realty and personalty shall be equally liable for the payment of debts.
(e) Unless otherwise expressly directed in the will, nothing in this Code section shall be deemed to limit any rights to reimbursement for federal estate taxes, generation-skipping transfer taxes, or any other taxes that may be available to personal representatives under federal law.
(a) If a beneficiary is dead when the will is executed or otherwise dies before the testator, but has any descendants living at the death of the testator, the testamentary gift, if absolute and without remainder or limitation, shall not lapse but shall vest in the descendants of the beneficiary in the same proportions as if inherited directly from the deceased beneficiary under the intestacy laws of this state.
(b) The provisions of subsection (a) of this Code section shall also apply to a testamentary gift to a class unless there appears a clear intent to the contrary.
(c) If a beneficiary is treated as having predeceased the testator due to a divorce or annulment, as provided in Code Section 53-4-49, or due to the beneficiary being responsible for the death of the testator, as provided in Code Section 53-1-5, the provisions of subsection (a) of this Code section shall apply only to vest the testamentary gift in descendants of the beneficiary who are also descendants of the testator.
(a) A lapsed or void testamentary gift of realty or personalty shall become part of the residuum.
(b) A lapsed or void gift of the residuum shall be deemed a part of the share of the other residuary beneficiaries in proportion to their original shares of the residuum. If there are no other residuary beneficiaries, a lapsed or void gift of the residuum shall pass by intestacy.
Except as provided in Code Section 53-4-67, a specific testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of such gift at death.
(a) If the testator exchanges property which is the subject of a specific testamentary gift for other property of like character, or merely changes the investment of a fund so given, the testator's intention shall be deemed to be to substitute the one for the other, and the testamentary gift shall not fail.
(b) If, within six months prior to the testator's death, property which is the subject of a specific testamentary gift is lost, stolen, or destroyed, and if such loss, theft, or destruction is covered, wholly or in part, by insurance, the specific beneficiary has the right to any proceeds of such insurance that are unpaid at the testator's death or, if any such proceeds have been paid prior to the testator's death, to a pecuniary gift equal to the amount of the proceeds so paid. The foregoing provisions shall also apply if the property is damaged but not destroyed, except that the amount of the insurance proceeds or the pecuniary gift to be paid to the specific beneficiary shall be reduced by the cost of any repairs made to the damaged property by the testator or the testator's personal representative.
(c) If, within six months prior to the testator's death, property which is the subject of a specific testamentary gift is taken by condemnation, the beneficiary has the right to any award for such condemnation unpaid at the testator's death or, if any such award has been paid prior to the testator's death, to a pecuniary gift equal to the amount of the award so paid.
(a) Conditions in a will that are impossible, illegal, or against public policy shall be void.
(b) A condition in terrorem shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem is violated, in which event the direction in the will shall be carried out, except as otherwise provided in subsection (c) of this Code section.
(c) A condition in terrorem shall not be enforceable against an interested person for:
(1) Bringing an action for interpretation or enforcement of a will;
(2) Bringing an action for an accounting, for removal, or for other relief against a personal representative; or
(3) Entering into a settlement agreement.
A beneficiary taking under a will shall allow all the provisions of the will to be executed as far as the beneficiary can. A beneficiary who has a claim adverse to the will shall be required to elect whether to claim under the will or against it. However, the mere fact that the beneficiary is also a creditor shall not necessitate an election.
(a) When a testator has attempted to make a testamentary gift of property that is not the testator's own and has also given a benefit to a person to whom the property belongs, the person shall elect to take either under the will or against the will.
(b) An election pursuant to subsection (a) of this Code section shall not be required if:
(1) The will itself, from other causes, is not effective in passing title to the property in question;
(2) The testator has an interest in the property in question upon which the will may operate;
(3) The testamentary gift shows that the testator intended to give the property only in the event that the testator's own title was good; or
(4) The benefit given to the person called upon to elect is not from the testator's own property but is by virtue of a power of appointment in the testator.
If, pursuant to Code Sections 53-4-69 and 53-4-70, an election is made against the will, the defeated beneficiary shall be entitled to compensation out of the property bequeathed to the person who made the election, up to the value of the defeated testamentary gift.
All property owned by the testator at death that was acquired subsequent to the making of a will shall pass under the will if the provisions of the will are sufficiently broad to embrace the property.
(a) Any individual who is 18 years of age or older and of sound mind may provide for the sale by contract or by will of a heart pacemaker implanted within the individual, such disposition to be made at death. If the sale is by will, it shall be effective without probate.
(b) When individuals in prior classes are not available at the time of death of an individual having a heart pacemaker and in the absence of a disposition contract or will, actual notice of contrary indications by the decedent, and actual opposition by a member of the same or a prior class, any of the following individuals, in order of priority stated, may sell the heart pacemaker:
(1) The spouse;
(2) An adult son or daughter;
(3) Either parent;
(4) An adult brother or sister;
(5) A guardian of the person of the decedent at the time of the decedent's death other than a guardian ad litem appointed for such purpose; or
(6) Any other person authorized or under obligation to dispose of the body.
(c) If a buyer has actual notice of contrary indications by the decedent or actual notice that a sale by a member of a class is opposed by a member of the same or a prior class, no valid sale may be made. The persons authorized by subsection (b) of this Code section may make the sale only after the time of death of the individual having the heart pacemaker.
(d) Unless otherwise provided in a will or contract, all proceeds from sales under this Code section shall be added to the estate of the decedent.
(e) Sales of pacemakers under this Code section shall be subject to:
(1) Medical acceptability of the heart pacemaker for reuse; and
(2) The laws of this state relating to autopsies.
(f) This Code section shall not apply to the sale or gift of a nuclear-powered pacemaker.
(a) As used in this Code section, the term “marital deduction testamentary gift or transfer” means a testamentary gift or transfer of assets, including cash, which qualifies for the federal estate tax marital deduction.
(b) Where a will or trust agreement authorizes or requires an executor, administrator, or trustee to satisfy a pecuniary marital deduction testamentary gift or transfer wholly or partly by a distribution of assets in kind at values which are finally determined for federal estate tax purposes or at values which are determined by reference to such federal estate tax valuation, the executor, administrator, or trustee, in satisfaction of the pecuniary marital deduction bequest or transfer, shall distribute assets, including cash, which shall have an aggregate fair market value fairly representative of the distributee's proportionate share of the appreciation or depreciation, from the date or dates of federal estate tax valuation to the date or dates of distribution in satisfaction of the pecuniary marital deduction bequest or transfer.
(a) The probate court shall have exclusive jurisdiction over the probate of wills.
(b) The county of domicile of the testator at death shall give jurisdiction to the probate court of that county.
(c) The domicile of a testator who was in the care of a nursing home or other similar facility at the time of death shall be presumed to be the county in which the testator was domiciled immediately before entering the nursing home or other facility; provided, however, this presumption may be rebutted. If it is determined by the probate court that the testator considered or, in the absence of an impairment of mental faculties, the testator would have considered the county in which the facility is located to be the testator's domicile, then for purposes of this Code section that county shall be considered the testator's county of domicile.
(a) As used in this Code section, the term “interested person” shall include, but shall not necessarily be limited to, any heir of the decedent; legatee, devisee, or beneficiary under the will; creditor of the decedent; purchaser from an heir of the decedent; administrator or temporary administrator appointed for the estate of the decedent prior to the discovery of the will; trustee or beneficiary of a testamentary trust established by the will or of a trust to which the will makes a devise or bequest; and individual making a claim under, or having standing to caveat to the probate of, an earlier will. An agent, conservator, guardian, guardian ad litem, or other fiduciary or appropriate representative of such an interested person may act on such interested person's behalf.
(b) The right to offer a will for probate shall belong to the executor, if one is named. If for any reason the executor fails to offer the will for probate with reasonable promptness, or if no executor is named, any interested person may offer the will for probate.
(a) As used in this Code section, the term “will” includes a codicil.
(b) A will shall not be offered for probate following the expiration of five years from the earlier of:
(1) The latest date on which a petition is filed for the appointment of a personal representative of the decedent's estate, an order that no administration is necessary on the decedent's estate, or the probate of a different will; or
(2) The date of entry of a final order granting any petition of the sort described in paragraph (1) of this subsection that remains in continuing force and effect.
(c) The offering of a will for probate following the entry of an order of the sort described in paragraph (2) of subsection (b) of this Code section shall constitute a claim against a decedent's estate that arose before the death of the decedent for purposes of Code Section 9-3-36.
An executor acting under or any person claiming under a will offered for probate within the period described in Code Section 53-5-3 shall be permitted to recover from a bona fide purchaser for value:
(1) Property acquired from the heirs of the testator or anyone claiming through them, unless an order that no administration is necessary was entered prior to the purchase and the purchase occurred prior to the probate of the will;
(2) Property set aside in a year's support proceeding and acquired from the spouse or children of the testator or anyone claiming through them, unless the order granting year's support was entered prior to the purchase and the purchase occurred prior to the probate of the will; and
(3) Property acquired from the administrator of the testator's estate or the heirs of the testator or anyone claiming through them, unless the administrator was qualified prior to the purchase and the purchase occurred prior to the probate of the will.
A person having possession of a will shall file it with reasonable promptness with the probate court of the county having jurisdiction. The probate court may attach for contempt and may fine and imprison a person withholding a will until the will is delivered.
On the investigation of an issue of devisavit vel non, the admission of an executor before qualification or of a beneficiary, other than a sole beneficiary, shall not be admissible in evidence to impeach the will except where the admission is in reference to the conduct or acts of the executor or beneficiary concerning some matter relevant to the issue.
If a codicil republished a will except as to any amendment contained in the codicil and clearly identified the will that was republished, proof of the codicil is proof of the will.
(a) As used in this Code section, the term “beneficiary” means a person, including a trust, that is designated in a will to take an interest in real or personal property; that has a present interest, including, but not limited to, a vested remainder interest, but not including a trust beneficiary where there is a trustee who is not also the personal representative required to give notice; and whose identity and whereabouts are known or may be determined by reasonable diligence.
(b) Within 30 days following the issuance of letters testamentary or letters of administration with the will annexed to the personal representative of a testate estate, such personal representative shall send to all beneficiaries by certified or registered mail or statutory overnight delivery, with return receipt requested, to his or her last known address a notice informing such beneficiaries of the issuance of such letters to the personal representative and providing the name, mailing address, and telephone number of such personal representative. Provided, however, that notice shall not be required to any beneficiary who has waived such right to notification in writing. Within 60 days following the issuance of such letters, such personal representative shall file with the probate court true and correct copies of such waivers and notices, the return receipts for each, and, with respect to any such beneficiary whose identity and whereabouts are unknown, an affidavit of diligent search attesting under oath to the efforts of such personal representative to identify and locate such beneficiary.
(c) A personal representative who, without sufficient cause, either fails to provide accurate information regarding such personal representative's name, mailing address, and telephone number within five business days of a request for such information by a beneficiary or by the probate court or otherwise fails to comply with the requirements of subsection (b) of this Code section, may be cited to appear and show cause as to why the personal representative's letters should not be revoked in the same manner as pursuant to Code Section 53-6-53.
(d) For purposes of this Code section, a trust beneficiary may be represented as provided in paragraph (3) of subsection (b) of Code Section 53-7-50.
Probate of a will may be in common form or in solemn form or both.
(a) The probate of a will in common form is not conclusive upon anyone interested in the estate adversely to the will except as provided in Code Section 53-5-19.
(b) If set aside, probate of a will in common form does not protect the executor in any acts beyond the executor's normal duties of collecting and preserving assets of the estate and paying the debts of the estate. Bona fide purchasers without notice under legally made sales from the executor will be protected.
(a) A will may be proved in common form upon the testimony of a single subscribing witness and without service or notice to anyone. If the will is self-proved, compliance with signature requirements for execution is presumed and other requirements for execution are presumed without the testimony of any subscribing witness.
(b) The petition to probate a will in common form shall set forth the same information required in a petition to probate a will in solemn form. The petition shall conclude with a prayer for the issuance of letters testamentary.
The order to probate a will in common form may be granted by the probate court at any time.
Probate in common form shall become conclusive upon all parties in interest four years from the date the order admitting such will to probate in common form is entered by the court in such proceeding, except upon minor heirs who require proof in solemn form and interpose a caveat within four years after reaching the age of majority. In such case, if the will is refused probate in solemn form and no prior will is admitted to probate, an intestacy shall be declared only as to the minor or minors and not as to others whose right to caveat is barred by the lapse of time.
(a) Probate in solemn form is conclusive upon all persons served with notice, including persons waiving service of notice or served with notice through a guardian ad litem or other appropriate representative, and upon all beneficiaries under the will who are represented by the personal representative.
(b) As to heirs and other persons required to be served with notice by Code Section 53-5-22 who are not effectively served with notice in a manner adequate to satisfy subsection (a) of this Code section, a proceeding to probate in solemn form shall otherwise be as conclusive as if probate had been in common form.
(c) Except as otherwise provided in subsections (a) and (b) of this Code section, a proceeding to probate in solemn form is conclusive against all persons, regardless of service or notice, six months from the date the order admitting such will to probate in solemn form is entered by the court in such proceeding.
(a) A will may be proved in solemn form after service of notice upon the persons required to be served, upon the testimony of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in Code Section 53-5-23; provided, however, that the testimony of only one witness shall be required to prove the will in solemn form if no caveat is filed. If a will is self-proved, compliance with signature requirements and other requirements of execution is presumed subject to rebuttal without the necessity of the testimony of any witness upon filing the will and affidavit annexed or attached thereto.
(b) The petition to probate a will in solemn form shall set forth the full name, the place of domicile, and the date of death of the testator; the mailing address of the petitioner; the names, ages or majority status, and addresses of all the heirs, stating each such heir's relationship to the testator; and whether, to the knowledge of the petitioner, any other proceedings with respect to the probate of another purported will of the testator are pending in this state and, if so, the names and addresses of the propounders and the names, addresses, and ages or majority status of the beneficiaries under the other purported will. If a testamentary guardian is being appointed in accordance with subsection (b) of Code Section 29-2-4, the names and mailing addresses of any persons required to be served with notice pursuant to such Code section shall be provided by the petitioner. In the event full particulars are lacking, the petition shall state the reasons for any omission. The petition shall conclude with a prayer for issuance of letters testamentary. If all of the heirs acknowledge service of the petition and notice and shall in their acknowledgment assent thereto, and if there are no other proceedings pending in this state with respect to the probate of another purported will of the decedent, the will may be probated and letters testamentary thereupon may issue without further delay; provided, however, that letters of guardianship shall only be issued in accordance with Code Section 29-2-4.
(a) Probate in solemn form requires service of notice on all the heirs of the testator and, if there is any other purported will of the testator for which probate proceedings are pending in this state, on all the beneficiaries under and propounders of such purported will. Service of notice of a petition for probate in solemn form shall be by personal service if the party resides in this state and is known and shall be served at least 30 days before probate is to be made, except that, if such service of notice is waived, the 30 day provision shall not apply.
(b) For purposes of serving notice on beneficiaries under a purported will for which probate proceedings are pending in this state, notice shall be served on:
(1) Each beneficiary:
(A) Who has a present interest, including but not limited to a vested remainder interest but not including trust beneficiaries where there is a trustee; and
(B) Whose identity and whereabouts are known or may be determined by reasonable diligence;
(2) The duly acting conservator or guardian of each individual beneficiary with a present interest or power, other than a mere trust beneficiary, who is not sui juris; and
(3) Each trustee.
Service of notice shall not be required in the case of a person whose interest, even though vested, cannot be possessed until the passage of time or the happening of a contingency. The probate court may, on the motion of any party in interest or on its own motion, modify the service of notice required in the case of numerous beneficiaries of the same or similar class where the value of each testamentary gift is, or appears to be, nominal. Upon the motion of any party in interest or upon its own motion, the court may determine whether the interest of any beneficiary required to be served with notice under this subsection is adequately represented, including any contingent interest of a beneficiary, and if such representation is found to be inadequate, the court may appoint a guardian ad litem to represent each beneficiary or order such other service of notice as may be appropriate to a beneficiary of a contingent interest. If a trustee named in the will indicates a refusal to represent the beneficiaries of the testamentary trust, the court may order that notice be served directly on the beneficiaries of the trust. The provisions of Code Section 53-12-8 shall be applicable to a trust beneficiary required to be served with notice or represented under this subsection.
(c) Service of a notice of petition for probate in solemn form shall be in accordance with the provisions of Chapter 11 of this title and, if made personally or by mail, shall include a copy of the petition and of the will for which probate is sought. If service is to be made by publication, the published notice shall set forth the court, the time the order for service by publication was granted, the name of the decedent, the fact that a petition has been filed seeking the probate of the will of the decedent in solemn form, and the name of the petitioner who seeks letters testamentary or the continuance in force of any letters testamentary previously granted. The notice shall command all parties to whom it is directed to file objection, if there is any.
(a) In all proceedings for the probate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oath before a notary public or by depositions or other discovery procedures under the same circumstances as other civil cases. The probate court shall have the power to compel the attendance of witnesses in the same manner as the superior court.
(b) Where witnesses are to be examined as authorized by this Code section, a photocopy of the will may be exhibited to the witnesses in lieu of the original will. The testimony of a witness to whom a photocopy of a will has been exhibited shall be given the same weight as though the original will had been exhibited to the witness.
(c) The provisions of this Code section shall not be construed as repealing any other statutory provision prescribing a method or procedure for the taking of testimony by interrogatories or depositions, but as supplementary of such other provisions and cumulative to such other provisions and as providing additional means or methods of taking the testimony of subscribing witnesses to a will in proceedings for the probate of the will. The taking or procuring of testimony in the manner prescribed by this Code section shall be sufficient for all purposes of the probate proceedings, notwithstanding any other statute.
When it appears that a will cannot be proved as otherwise provided by law because at the time the will is offered for probate one or more of the subscribing witnesses to the will is dead or mentally or physically incapable of testifying or otherwise inaccessible, the court may admit the will to probate in common or solemn form upon the testimony in person or by affidavit or by deposition of at least two credible disinterested witnesses that the signature to the will is that of the individual whose will it purports to be or upon other sufficient proof of such signature. This Code section shall not preclude the court, in its discretion, from requiring, in addition, the testimony in person or by deposition of any available subscribing witness or proof of such other pertinent facts and circumstances as the court may deem necessary to admit the will to probate.
(a) As used in this Code section, the term:
(1) “Court” means a probate court or any superior court on appeal or transfer from a probate court.
(2) “Interested persons” means all persons whose interests would be affected by the approval of a settlement agreement in the manner provided in this Code section.
(b) The court may approve a settlement agreement under which probate is granted or denied or providing for a disposition of the property contrary to the terms of the will, if all interested persons consent and any duly qualified personal representative or temporary administrator is served with notice of the petition to approve such settlement agreement.
(c) A proceeding to approve a settlement agreement under this Code section may be commenced by an interested person or by any duly qualified personal representative or temporary administrator. Service of notice of a petition to approve a settlement agreement under this Code section shall be made in the manner provided by Chapter 11 of this title to all the interested persons, any duly qualified personal representative or temporary administrator, and such other persons as the court may direct.
(d) Approval of any settlement agreement that provides for the probate of the will, the sustaining of the caveat, or the disposition of the property contrary to the terms of the will shall be after such additional service of notice and such hearing as the court may direct in the exercise of its sound discretion. At any such hearing, the court may require or receive such evidence as the court may deem appropriate and may determine whether there is a bona fide contest or controversy.
(e) All interested persons who are sui juris shall be authorized to enter into a settlement agreement, which shall be assented to in writing by all such interested persons.
(f) All interested persons who are not sui juris or who are unborn or unknown shall be represented in such proceedings by an independent guardian ad litem. It shall be the duty of the guardian ad litem to investigate the proposed settlement and report to the court such guardian's findings and recommendations. The court shall take the recommendations into consideration but shall not be bound by such recommendations; provided, however, that, for purposes of subsection (b) of this Code section, the guardian ad litem's recommendation that the court approve the settlement agreement shall constitute consent to the settlement agreement by the guardian ad litem on behalf of all interested persons represented by such guardian.
(g) If a trust designated in the will to take an interest in real or personal property would have such interest affected by the settlement agreement:
(1) The provisions of such agreement affecting such interest shall satisfy the requirements of Code Section 53-12-9 in order to be binding on the trust, the trustee, any trust director, and the trust beneficiaries; and
(2) A probate court not subject to Article 6 of Chapter 9 of Title 15, upon its own motion or upon the motion of any interested person or duly qualified personal representative or temporary administrator, shall enter an order transferring the proceeding to approve the settlement agreement to the superior court to which an appeal would lie under Code Section 5-3-2.
(h) A judgment entered by the court approving the settlement agreement shall be conclusive in the same manner as probate in solemn form, as provided by Code Section 53-5-20.
(i) Entering into or petitioning a court regarding a settlement agreement under this Code section shall not constitute a violation of a condition in terrorem under Code Section 53-4-68.
Upon petition to the probate court, a person named as an executor in a purported will of a decedent shall be entitled to recover from the estate of the decedent the expenses incurred in offering the will for probate in common or solemn form, including reasonable attorney's fees, provided the person proceeded in good faith. The probate court shall determine whether the person proceeded in good faith and the amount of the expenses. The order of the probate court shall be subject to appeal as is provided in other cases.
(a)(1) As used in this Code section, the term “court” means a probate court or superior court on appeal or transfer from a probate court.
(2) Except as provided in subsection (b) of this Code section, the personal representative nominated in the will or duly qualified so to serve and all persons whose interests would be affected may enter into a binding nonjudicial settlement agreement with respect to any matter involving a will.
(b) A nonjudicial settlement agreement shall be valid only to the extent it does not violate a material intention of the testator under Article 6 of Chapter 4 of this title and includes terms and conditions that properly could be approved by the court under Code Section 53-5-25 or other applicable law.
(c) A nonjudicial settlement agreement entered into in accordance with this Code section shall be final and binding on all parties to such agreement, including individuals not sui juris, unborn individuals, and persons unknown who are represented by a guardian who may represent and bind such parties under Code Section 53-5-25 or 53-11-2, as if ordered by a court with competent jurisdiction over the will, the estate of the decedent, and the parties.
(d) Any person bound by a nonjudicial settlement agreement under subsection (c) of this Code section may request that the court approve such agreement, determine whether the representation provided under Code Section 53-5-25 or 53-11-2 was adequate, determine whether such agreement violates a material intention of the testator under Article 6 of Chapter 4 of this title, determine whether such agreement contains terms and conditions the court properly could have approved, or make any other similar determination.
(e) If a trust designated in the will to take an interest in real or personal property would have such interest affected by the nonjudicial settlement agreement:
(1) The provisions of such agreement affecting such interest shall satisfy the requirements of Code Section 53-12-9 in order to be binding on the trust, the trustee, any trust director, and the trust beneficiaries; and
(2) A probate court not subject to Article 6 of Chapter 9 of Title 15, upon the request of any person bound by a nonjudicial settlement agreement that the court determine whether such agreement contains terms and conditions the court properly could have approved, shall enter an order transferring the proceeding to the superior court to which an appeal would lie under Code Section 5-3-2 for the determination of all questions under subsection (d) of this Code section.
(f) Entering into or petitioning a court regarding a nonjudicial settlement agreement under this Code section shall not constitute a violation of a condition in terrorem under Code Section 53-4-68.
For purposes of this article:
(1) “Domiciliary jurisdiction” is the jurisdiction outside this state in which a nondomiciliary is domiciled at death.
(2) “Foreign will” is the will of a nondomiciliary who dies while domiciled in a jurisdiction that is not a state or territory governed by the Constitution of the United States and who at death owns property located in this state or a cause of action the venue of which lies in this state.
(3) “Nondomiciliary” is a decedent who dies while domiciled in a jurisdiction that is outside this state.
(4) “Out-of-state will” is the will of a nondomiciliary who dies while domiciled in a state or territory that is governed by the Constitution of the United States and who at death owns property located in this state or a cause of action the venue of which lies in this state.
A foreign will or an out-of-state will may be admitted to original common or solemn form probate under the rules governing probate of wills of testators who die domiciled in this state upon proof that the will is valid under the laws of this state and that it has not been offered for probate or establishment in the domiciliary jurisdiction or that it has been offered for probate but either no timely caveat or similar objection was filed in the domiciliary jurisdiction or the grounds of a pending caveat or similar objection are not such as would, if proved, cause the denial of probate.
If a foreign will or an out-of-state will is admitted to original probate in common or solemn form, the terms of the will shall be given effect under the laws of this state and shall be subject to the same defenses and objections as a will of a testator who died domiciled in this state.
(a) A foreign will or an out-of-state will duly admitted to probate or established under the laws of the domiciliary jurisdiction may be admitted to ancillary probate in solemn form upon proof that the will has not been offered for probate in this state in proceedings in which a caveat to such probate has been finally sustained or is pending.
(b) For purposes of ancillary probate of out-of-state wills, when the out-of-state will has been admitted to probate or established in the domiciliary jurisdiction, the will may be admitted to ancillary probate in solemn form upon production of a properly certified copy of the will and a properly authenticated copy of the final proceedings in the jurisdiction in which the will was probated or established, certified according to Code Section 24-9-922, and may be attacked or resisted on the same grounds as other judicial proceedings from a state of the United States.
(c) For purposes of ancillary probate of a foreign will, if the foreign will has been probated or established under the laws of the domiciliary jurisdiction, a certified copy of the will and an authenticated copy of the final proceedings in the jurisdiction in which the will was probated or established, under the seal of the court, shall be prima-facie evidence of the due execution of the will and the will may be admitted to ancillary probate but may be objected to by caveat or rebutted by proof, as in the case of a will offered for original probate.
If a foreign will or an out-of-state will is admitted to ancillary probate in this state, the validity and terms of the will shall be given effect under the laws of the domiciliary jurisdiction.
(a) Wills that are probated or established in another state shall constitute muniments of title for the transfer and conveyance of real property in this state to the beneficiaries named in the will and such will shall be admitted in evidence in this state as muniments of title without being probated in this state when:
(1) Such a will is accompanied by properly authenticated copies of the record admitting the will to probate in another state, certified according to Code Section 24-9-922; and
(2) The certified copy of such a will is recorded in the office of the clerk of the superior court in the county in which the real property is situated in the record in which deeds are recorded in this state.
(b) This Code section shall apply to all cases in which real property is held or claimed under wills not probated in this state and to all actions brought to recover or protect real property in this state.
The probate court of any county in this state in which is located any property owned by the decedent or any cause of action of which the decedent was possessed at death the venue of which lies in this state shall have original or ancillary jurisdiction of a foreign or out-of-state will.
Upon the admission of a foreign will or an out-of-state will to ancillary probate, an executor named by or pursuant to the will to serve in this state or, in the absence of objection, a duly qualified and acting executor, administrator, or personal representative for the estate under the laws of the jurisdiction in which the will was originally probated or established shall be entitled to qualify as executor or administrator with the will annexed in this state. If such person shall fail to qualify within a reasonable time after the will is admitted to ancillary probate or if objection is filed and the probate court shall find good cause why such person should not serve, the court shall name as administrator with the will annexed a person who could otherwise be named administrator with the will annexed under the laws of this state. No person may qualify as executor or administrator with the will annexed under this Code section if such person is not otherwise qualified to act as a fiduciary in this state.
If a nondomiciliary dies intestate owning real property located in this state, the real property shall be distributed to that decedent's heirs in accordance with the laws of intestacy of this state.
When a nondomiciliary dies intestate owning real property located in any county of this state, the probate court of such county, on petition of any heir, creditor, or any duly qualified administrator or personal representative of the decedent, shall appoint an administrator of the estate in this state, in conformity with the proceedings required for the appointment of an administrator of a decedent who died domiciled in this state. Unless there is objection and good cause to the contrary shown, the duly qualified administrator or personal representative shall be appointed as the administrator of the estate in this state. No person may qualify as administrator under this Code section if such person is not otherwise qualified to act as a personal representative in this state.
Upon qualification, the ancillary personal representative shall give notice to all creditors of the nondomiciliary decedent who are domiciled in this state in the same manner as is required for decedents who die domiciled in this state.
An ancillary personal representative shall be subject to the laws of this state governing the administration of estates generally, except that by order of the probate court granted after notice to the persons known to have an interest in or claim against the estate in this state as an unsatisfied heir, beneficiary, or creditor residing in this state, the personal representative may be directed to:
(1) Pay only those debts determined by the probate court to constitute administrative expenses or other debts incurred by the personal representative and debts payable to creditors residing or situated in this state;
(2) Make distribution to any heirs or beneficiaries residing or situated in this state to the extent that the probate court determines to be practicable and not to the detriment of a testamentary scheme; and
(3) If the provisions of paragraph (1) or (2) of this Code section or both paragraphs apply to the estate, distribute all property remaining in the hands of the ancillary personal representative to the personal representative qualified in the domiciliary jurisdiction rather than to the distributees of the estate.
When an individual dies domiciled outside of this state possessed of a claim to or against real or personal property or a cause of action within this state, if ancillary probate or administration has not been granted and is not pending in this state and there is a personal representative duly qualified and serving under the laws of the domiciliary jurisdiction, ancillary probate or administration shall not be required and the duly qualified personal representative may:
(1) Take possession of personal property of the decedent located within this state and collect accounts or other sums due and payable to the decedent;
(2) Sell and convey any property of the decedent located within this state;
(3) Transfer the decedent's stock in any bank or other corporation in this state and withdraw deposits made by the decedent and receive dividends declared on the decedent's stock;
(4) Sue in any court in this state to enforce any cause of action or recover any property of the decedent or the foreign personal representative;
(5) Settle or compromise debts, claims, actions, causes of action, or controversies and give receipts, releases, or acquittances;
(6) Exercise and enforce anywhere in this state any and all rights, powers, or privileges possessed by the decedent or the personal representative pursuant to deeds or bills of sale to secure debts, mortgages, financing statements, or other instruments given as security for debt or as liens of any kind, including foreclosing, taking possession of property to which either is entitled as security, and protecting any and all interests or rights of either as a creditor in bankruptcy, receivership, or other proceedings as fully as could any other person entitled to do so; and
(7) Give deeds of assent and otherwise transfer or execute evidence of ownership of real and personal property located within this state pursuant to the decedent's will or under the laws of intestacy.
Any of the foregoing powers of the personal representative shall be exercised in the same manner and in conformity with all requirements applicable to a personal representative of a decedent who dies domiciled in this state. If the personal representative of a decedent who dies domiciled outside this state is acting pursuant to the decedent's will, the personal representative may exercise such powers to the extent and in the manner contemplated by the will as if the will had been admitted to probate within this state. The filing of a petition for ancillary probate or administration in this state shall suspend all authority of the personal representative to perform any act within this state as such personal representative, but such authority shall be reinstated if the petition is dismissed or if the proceedings are otherwise finally terminated without a grant of probate or administration in this state. Any suspension of authority shall not serve to abate any action pending in any court in this state to which the personal representative is a party; when appropriate, the court may substitute a personal representative who becomes qualified in this state in place of the personal representative. The provisions of this Code section shall apply only if the personal representative is a citizen of the United States.
A copy of letters, or like documentation authenticated in accordance with Code Section 24-9-922, evidencing the qualification of the personal representative of the decedent who died domiciled outside this state, shall constitute prima-facie evidence of the authority of the personal representative to act in this state. Whenever a personal representative shall execute and deliver any deed of assent or conveyance with respect to real property located within this state, the personal representative shall attach to such deed as an exhibit the authenticated copy of the letters, and a certified copy of the will in the case of a testate decedent. The clerks of the superior courts of this state shall not be authorized to accept for filing and recording any deed given by such personal representative that does not conform to the foregoing requirements. Unless a third party has actual knowledge of the existence or pendency of ancillary probate or administration with respect to the decedent within this state, the third party who is dealing with the personal representative in reliance on the personal representative's letters and, in the case of a testate decedent, the out-of-state or foreign will, shall be fully protected.
Any person having an interest or claim as heir, beneficiary, or creditor with respect to any real or personal property located within this state of an individual who dies domiciled outside of this state may petition a probate court having jurisdiction for ancillary probate or administration and may apply to a court of equity to compel the personal representative to protect that person's interest. The court of equity may require ancillary probate or administration, transfer the matter to a probate court in this state having jurisdiction, and order the preservation of the existing status of the property pending the granting of ancillary probate or administration.
(a) A personal representative of a decedent who died domiciled outside this state submits personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by:
(1) Receiving payment of money or taking delivery of personal property belonging to the estate of the decedent; or
(2) Doing any act as a personal representative in this state that would have given the state jurisdiction over the actor as an individual.
Jurisdiction under paragraph (1) of this subsection is limited to the money or value of personal property collected.
(b) In addition to the jurisdiction conferred under subsection (a) of this Code section, a personal representative of a decedent who died domiciled outside this state is subject to the jurisdiction of the courts of this state to the same extent that the decedent was subject to jurisdiction immediately prior to death.
(a) Service of process may be made upon the personal representative of a decedent who dies domiciled outside this state by registered or certified mail, addressed to the personal representative's last reasonably ascertainable address, requesting a return receipt signed by the addressee only. Service of process upon such a personal representative may also be perfected by statutory overnight delivery as provided in Code Section 9-10-12 if the receipt provided by the commercial delivery company is signed by the addressee. Notice by first-class mail is sufficient if certified or registered mail service to the addressee is unavailable. Service may be made upon the personal representative in the manner in which service could have been made under other laws of this state on either the personal representative or the decedent immediately prior to death.
(b) If service is made on the personal representative as provided in subsection (a) of this Code section, the personal representative shall be allowed at least 30 days within which to appear and respond.
An adjudication with respect to personal property rendered in any jurisdiction in favor of or against any personal representative of the estate of a decedent who died outside this state is as binding upon the personal representative as if that person were a party to the adjudication.
(a) The probate court shall have original jurisdiction over any petition to vacate, set aside, or amend its order admitting a will to probate.
(b) A petition under subsection (a) of this Code section may be brought in the probate court to vacate, set aside, or amend its order admitting a will to probate based upon:
(1) Another will being entitled to be admitted to probate;
(2) A codicil to the probated will being entitled to be admitted to probate;
(3) Lack of jurisdiction;
(4) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the petitioner; or
(5) A nonamendable defect that appears upon the face of the record or pleadings.
(c)(1) Any such petition based upon paragraph (1) of subsection (b) of this Code section shall be combined with a petition to probate the other will in solemn form.
(2) Any such petition based upon paragraph (2) of subsection (b) of this Code section shall be combined with a petition to probate the codicil in solemn form.
(3) In any such petition based upon paragraph (1) or (2) of subsection (b) of this Code section, the court shall consider the petition to probate in solemn form together with the petition to vacate, set aside, or amend; and the court shall grant relief as is appropriate with respect to each matter.
(d) In any such petition based upon paragraph (5) of subsection (b) of this Code section, it is not sufficient that the pleadings fail to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.
(a) A petition made pursuant to Code Section 53-5-50 shall set forth the allegations on which such petition is based and the name and address of the then acting personal representative, if any, of the estate, or, if none, the beneficiaries of the previously probated will required to be served by Code Section 53-5-22. Such petition shall conclude with a prayer for the issuance of an order vacating, setting aside, or amending the earlier probate and, if such petition is based upon paragraph (1) or (2) of subsection (b) of Code Section 53-5-50, for the probate of the newly propounded will or codicil in solemn form and for the issuance of new letters testamentary.
(b) The beneficiaries under the previously probated will shall be represented in the action by the then acting personal representative, if any; and service of notice upon the personal representative in the same manner as provided for by law under Chapter 11 of this title shall be the equivalent of service of notice upon the beneficiaries.
(c) If there is no then acting personal representative, such petition and the citation issued thereon shall be served upon the beneficiaries who are required to be served by Code Section 53-5-22 of the previously probated will, in the same manner as upon the heirs, unless all such parties assent to such petition.
(d) If the then acting personal representative acknowledges service of such petition and notice and assents to the relief in the acknowledgment of service of such petition and notice, the relief prayed for in such petition may issue without delay. In the event there is no then acting personal representative, if all the beneficiaries acknowledge service of such petition and notice and assent in their acknowledgments, such relief may issue without delay.
(a) A petition based upon paragraph (1) or (2) of subsection (b) of Code Section 53-5-50 shall be brought before:
(1) The probate of the previously probated will becomes conclusive upon the petitioner under Code Section 53-5-19 or 53-5-20; and
(2) The expiration of the time within which the newly propounded will must be offered for probate under Code Section 53-5-3.
(b) A petition based upon paragraph (3) of subsection (b) of Code Section 53-5-50 may be brought at any time.
(c) In all other instances, a petition made pursuant to this article shall be brought within three years from entry of the order admitting a will to probate.
(d) The filing of a petition made pursuant to this article shall constitute a claim against a decedent's estate that arose before the death of the decedent for purposes of Code Section 9-3-36.
The provisions of this article shall govern in proceedings in the probate court to vacate, set aside, or amend an order admitting a will to probate, and the provisions of Code Section 9-11-60 shall not be applicable to such proceedings.
This article shall be known and may be cited as the “Uniform Transfer on Death Security Registration Act.”
As used in this article, the term:
(1) “Beneficiary form” means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
(2) “Register,” including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
(3) “Registering entity” means a person who originates or transfers a security title by registration and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
(4) “Security” means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer and includes a certificated security, an uncertificated security, and a security account.
(5) “Security account” means:
(A) A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death;
(B) An investment management account, investment advisory account, investment agency account, custody account, or any other type of security or trust account with a financial institution as such term is defined in Code Section 7-1-911, including the securities in the account, the cash balance in the account, and cash equivalents, and any interest, earnings, or dividends earned or declared on a security in the account, whether or not credited to the account before the owner's death; or
(C) A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.
Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form and not as tenants in common.
A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which this or a similar statute is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.
Registration in beneficiary form may be shown by the words “transfer on death” or the abbreviation “TOD,” or by the words “pay on death” or the abbreviation “POD,” after the name of the registered owner and before the name of a beneficiary.
The designation of a transfer on death beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all the then surviving owners without the consent of the beneficiary.
On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survive the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.
(a) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this article.
(b) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this article.
(c) A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with Code Section 53-5-67 and does so in good faith reliance on the registration, on this article, and on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of this article do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this article.
(d) The protection provided by this article to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.
(a) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this article and is not testamentary.
(b) This article does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.
(a) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests for registrations in beneficiary form and for implementation of registrations in beneficiary form, including requests for cancellation of previously registered transfer on death beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters “LDPS,” standing for lineal descendants per stirpes. This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form may be contained in a registering entity's terms and conditions.
(b) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
(1) Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S. Brown, Jr.;
(2) Multiple owners-sole beneficiary: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr.;
(3) Multiple owners-primary and secondary (substituted) beneficiaries: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr., SUB BENE Peter Q. Brown or John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr., LDPS.
This article applies to registrations of securities in beneficiary form made before or after July 1, 1999, by decedents dying on or after July 1, 1999.
Any individual who is sui juris, regardless of citizenship or residency, is eligible to serve as a personal representative or temporary administrator of a decedent who dies domiciled in this state, subject to the requirements for qualification set forth in this chapter. Any other person is eligible to serve as a personal representative or temporary administrator of a decedent who dies domiciled in this state, subject to the requirements set forth in this chapter, provided the person is otherwise qualified to act as a fiduciary in this state.
Any person who, without authority of law, wrongfully intermeddles with or converts the personalty of a decedent whose estate is unrepresented shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or beneficiaries of the estate for double the value of the property so possessed and converted. Such executor shall not be allowed to set off any debt due the executor by the decedent or voluntarily paid by the executor out of the assets. If the executor dies, the executor's personal representative shall be liable in the same manner and to the same extent as would the executor were the executor still living.
(a) No formal words are necessary for the nomination of an executor. An expression by the testator of a desire that the person carry into effect the testator's wishes shall amount to a nomination as executor.
(b) Unless adjudged unfit, nominated executors shall have the right to qualify in the order set out in the will.
(c) An individual who has not reached the age of majority may be nominated as an executor but may not qualify until reaching the age of majority.
(d) If the will names a person to fill a vacancy in the office of executor or provides a method of selecting a personal representative to fill the vacancy, any vacancy shall be filled or selection made as provided in the will.
(a) If the nominated executor does not qualify within 90 days after the order admitting the will to probate is entered or is proved to be dead or incapacitated or renounces the right to serve, the next nominated executor in the order set out in the will may qualify. If the next nominated executor fails to qualify within 90 days after the expiration of the time period by which the first nominated executor must qualify or is proved to be dead or incapacitated or renounces the right to serve, any nominated executor may qualify. If no nominated executor appears to qualify within a reasonable time or if there is no other executor named in the will, the estate shall be deemed to be unrepresented.
(b) A nominated executor who fails to qualify within the time period set out in subsection (a) of this Code section is deemed to have declined the right to serve as executor; provided, however, that this declination does not preclude the nominated executor from qualifying to serve as executor or administrator with the will annexed at a later time.
A nominated executor may decline in writing the right to serve as executor, but this shall not preclude the nominated executor from qualifying at a later time to serve as executor or administrator with the will annexed to fill a vacancy.
Unless another nominated executor qualifies within the time provided in Code Section 53-6-11, the probate court shall appoint an administrator with the will annexed of a testate estate when:
(1) No executor is nominated in the will;
(2) The nominated executor has not reached the age of majority, to serve until the disability ceases;
(3) The executor dies, resigns, or otherwise becomes disqualified to serve; or
(4) A testate estate is unrepresented for any other reason.
(a) For purposes of this Code section, a beneficiary who is capable of expressing a choice is one:
(1) Who has a present interest, including but not limited to a vested remainder interest but not including trust beneficiaries where there is a trustee; and
(2) Whose identity and whereabouts are known or may be determined by reasonable diligence.
(b) An administrator with the will annexed may be unanimously selected by the beneficiaries of the will who are capable of expressing a choice unless the sole beneficiary is the decedent's surviving spouse and an action for divorce or separate maintenance was pending between the decedent and the surviving spouse at the time of death. When no such unanimous selection is made, the probate court shall make the appointment that will best serve the interests of the estate, considering the following preferences:
(1) Any beneficiary or the trustee of any trust that is a beneficiary under the will; or
(2) Those persons listed in paragraphs (3) through (5) of Code Section 53-6-20.
(c) For purposes of this Code section, a beneficiary's choice is expressed by:
(1) That beneficiary, if the beneficiary is sui juris;
(2) That beneficiary's duly acting conservator or guardian or, if there is no conservator or guardian, the person having custody of the beneficiary, if the beneficiary is not sui juris;
(3) The trustee of a trust that is a beneficiary under the will, where there is a trustee;
(4) The beneficiary of a trust that is a beneficiary under the will, where there is no trustee; provided, however, that for purposes of this paragraph, a trust beneficiary may be represented as provided in Code Section 53-12-8; or
(5) The personal representative of a deceased beneficiary receiving a present interest under the will.
(a) Every petition for letters of administration with the will annexed shall be made in accordance with the procedures set forth in Code Section 53-5-21 if the will has not yet been admitted to probate and shall include a prayer for issuance of letters of administration with the will annexed. Such petition shall set forth the names, addresses, and ages or majority status of the beneficiaries who are capable of expressing a choice, as defined in subsection (a) of Code Section 53-6-14, and the circumstances giving rise to the need for an administrator with the will annexed. Such petition and the citation issued thereon shall be served by the court on the beneficiaries of the will who are capable of expressing a choice in the manner provided by Chapter 11 of this title. If the petition for letters of administration with the will annexed is based upon the expiration of a reasonable time for any nominated executor to qualify, any nominated executor who has failed to qualify shall also be served with notice by the court in the manner provided by Chapter 11 of this title.
(b) If the will has been admitted to probate, the petition for letters of administration with the will annexed shall set forth the names, addresses, and ages or majority status of the beneficiaries who are capable of expressing a choice, as described in subsection (a) of Code Section 53-6-14, the date on which the will was admitted to probate, and the circumstances giving rise to the need for an administrator with the will annexed. Such petition and the citation issued thereon shall be served by the court on the beneficiaries of the will and the personal representative, if any, of the estate of any deceased executor whose death created the vacancy in the manner provided by Chapter 11 of this title.
(c) In the case of an estate partially administered and unrepresented because of the death of the previous executor, the judge shall determine whether the interest of the first estate and the persons interested in the first estate will best be served by the appointment of an administrator with the will annexed or of the executor, if any, appointed under the will of the deceased previous executor.
(a) Every executor and every administrator with the will annexed, upon qualification, shall take and subscribe an oath or affirmation in substantially the following form:
“I do solemnly swear (or affirm) that this writing contains the true last will of _____, deceased, so far as I know or believe, and that I will well and truly execute the same in accordance with the laws of Georgia. So help me God.”
(b) The oath or affirmation of an executor or administrator with the will annexed as provided in subsection (a) of this Code section may be subscribed before the judge or clerk of any probate court of this state. The probate court appointing the executor or administrator with the will annexed shall have the authority to grant a commission to a judge or clerk of any court of record of any other state to administer the oath or affirmation.
An administrator may be unanimously selected by all the heirs of a deceased intestate unless the sole heir is the decedent's surviving spouse and an action for divorce or separate maintenance was pending between the deceased intestate and the surviving spouse at the time of death. With respect to any heir who is not sui juris, consent may be given by the guardian of the individual. When no such unanimous selection is made, the probate court shall make the appointment that will best serve the interests of the estate, considering the following order of preferences:
(1) The surviving spouse, unless an action for divorce or separate maintenance was pending between the deceased intestate and the surviving spouse at the time of death;
(2) One or more other heirs of the intestate or the person selected by the majority in interest of them;
(3) Any other eligible person;
(4) Any creditor of the estate; or
(5) The county administrator.
(a) Every petition for letters of administration shall be made to the probate court of the county of domicile of the decedent, or, if the decedent was not domiciled in this state, then in a county where the estate or some portion of it is located.
(b) The petition shall set forth the full name, the legal domicile, and the date of death of the decedent; the mailing address and place of domicile of the petitioner; the names, ages or majority status, and addresses of heirs, stating their relationship to the decedent; and, in the event full particulars are lacking, the reasons for any omission. The petition shall conclude with a prayer for issuance of letters of administration. If a prior personal representative has qualified and a copy of the original petition is attached, it is unnecessary for the new petition to repeat relevant and unchanged information from the original petition.
Notice of the petition for letters of administration shall be served by the court by first-class mail on each heir with a known address at least 30 days prior to the date on or before which any objection is required to be filed. If there is any heir whose current address is unknown or any heir who is unknown, notice shall be served on any such heir by being published in the official newspaper of the county in which the petition is made once each week for four weeks prior to the week that includes the date on or before which any objection must be filed.
Letters of administration may issue to any person selected as provided by Code Section 53-6-20, and a new citation need not be published if the administrator is someone other than the person named in the citation.
(a) Every administrator, upon qualification (which qualification may be done at any time if appointed at a regular term), shall take and subscribe an oath or affirmation in substantially the following form:
“I do solemnly swear (or affirm) that _____, deceased, died intestate so far as I know or believe, and that I will well and truly administer the estate in accordance with the laws of Georgia. So help me God.”
(b) The oath or affirmation of an administrator as provided in subsection (a) of this Code section may be subscribed before the judge or clerk of any probate court of this state. The probate court appointing the administrator shall have the authority to grant a commission to a judge or clerk of any court of record of any state to administer the oath or affirmation.
(a) The probate court may at any time and without service or notice to anyone grant temporary letters of administration on an unrepresented estate to continue in full force and effect until the temporary administrator is discharged or a personal representative is appointed.
(b) The probate court may appoint such person as temporary administrator as the court determines to be in the best interests of the estate. Pending an issue of devisavit vel non upon any paper propounded as a will that has not been admitted to probate in common form, the executor nominated in the purported will shall have preference in the appointment of a temporary administrator.
(c) There shall be no appeal from an order granting temporary letters of administration, either to the superior court under subsection (a) of Code Section 5-3-2 or to the Supreme Court or the Court of Appeals under subsection (a) of Code Section 15-9-123.
(a) A temporary administrator may bring an action for the collection of debts or for personal property of the decedent. If a personal representative is appointed pending such action, the personal representative may be substituted for the temporary administrator as a party in the manner provided by Article 4 of Chapter 11 of Title 9.
(b) A temporary administrator may bring, support, or oppose an action to approve a settlement agreement under Code Section 53-5-25. If a personal representative is appointed pending such action, the personal representative may be substituted for the temporary administrator as a party in the manner provided by Article 4 of Chapter 11 of Title 9.
(c) A temporary administrator shall have the power to collect and preserve the assets of the estate and to expend funds for this purpose if approved by the judge of the probate court after such notice as the judge deems necessary; provided, however, that nothing in this subsection shall limit or reduce the notice requirements imposed by Code Sections 53-6-64 and 53-7-4.
(d) A temporary administrator appointed pursuant to Code Section 53-3-21 shall have the power to perform the duties of a personal representative under subsection (b) of Code Section 53-3-7 or under subsection (b) of Code Section 53-3-12, as ordered by the judge of the probate court.
(a) Every temporary administrator, upon qualification (which qualification may be done at any time), shall take and subscribe an oath or affirmation in substantially the following form:
“I do solemnly swear (or affirm) that_______________, deceased, died (testate) (intestate) and with an estate that is currently unrepresented, so far as I know or believe, and that I will well and truly administer on all the estate of the Deceased and discharge to the best of my ability all my duties as Temporary Administrator. So help me God.”
(b) The oath or affirmation of a temporary administrator as provided in subsection (a) of this Code section may be subscribed before the judge or clerk of any probate court of this state. The probate court appointing the temporary administrator shall have the authority to grant a commission to a judge or clerk of any court of record of any state to administer the oath or affirmation.
(a) The probate court of each county shall appoint a county administrator whose duty shall be to take charge of all estates unrepresented and not likely to be represented.
(b) In all counties of this state the probate court is authorized to appoint, in the same manner as the county administrator is appointed, one or more additional county administrators who shall have the same powers, duties, and authority and be subject to the same laws, including Chapter 8 of Title 29, relating to county guardians, as county administrators.
(c) The order appointing the county administrator shall be entered on the minutes of the probate court and the original shall be placed in the possession of the county administrator.
(a)(1) Except as provided in paragraph (2) of this subsection, the county administrator shall have attained the age of 21 years and shall have been for at least one year a domiciliary of the county of appointment.
(2) If the individual to be appointed as county administrator is an active member in good standing of the State Bar of Georgia, such individual need not be a domiciliary of the county but only a domiciliary of this state.
(b) If the county governing authority consents, county administrators and ex officio county guardians may be paid an annual fee for so serving. The amount of any such fee shall be established by agreement of the county governing authority, the probate court, and the individual so serving. Any such fee shall be in addition to commissions authorized under other provisions of law.
(a) The term of office of a county administrator shall be four years and shall expire on the first Monday in March or when a successor is appointed and qualified. All vacancies in the office, whether by death, resignation, removal from the county, or removal from office, shall be filled by the probate court for the unexpired term.
(b) When the term of a county administrator has expired or when a county administrator has been removed from office, the county administrator shall nevertheless continue to discharge the duties of administrator of all estates remaining in the administrator's hands unless the letters of administration are revoked.
(c) A county administrator may resign the office as other administrators are allowed by law to do so.
If for any reason an estate is unrepresented and not likely to be represented, the probate court shall vest the administration of the estate in the county administrator, with notice given as provided for in Code Section 53-6-22. If, however, the estate does not exceed in value the sum set aside to the spouse and children of the decedent as year's support, no administration shall be necessary, but the probate court shall by order set apart the same to the spouse and children, as provided by law.
If for any reason a county has no county administrator and there is an unrepresented estate that is not likely to be represented, it shall be the duty of the probate court of any such county to vest the administration of the estate in the clerk of the superior court of the county.
(a) The probate court shall grant to the county administrator separate letters of administration upon each estate placed in the county administrator's hands. Except as provided in subsection (b) of this Code section, the county administrator shall be governed and controlled by the law provided for other administrators.
(b) If a petition is made for the appointment of a county administrator as the administrator of an unrepresented estate for the sole purpose of making it possible to commence or continue a lawsuit against the estate and the granting of such petition is otherwise proper under applicable law, the probate court may appoint the county administrator as administrator of such estate. The probate court shall relieve the county administrator from all liabilities, duties, and obligations otherwise imposed on the administrator of an estate, including but not limited to the marshaling of assets, the publication of notice to creditors, the filing of an inventory, the filing of returns, and the posting of a separate bond, except for those duties and obligations directly related to the acceptance of service of process and qualification as administrator and other duties directly related to the lawsuit. Additionally, the probate court may provide for the payment of reasonable compensation to the county administrator by the petitioner sufficient to cover the time devoted to and expenses incurred by the county administrator in the performance of the duties and obligations with respect to the estate, such compensation to be determined by the probate court in the same manner that the amount of any extra compensation claimed by the administrator is to be determined.
Each county administrator shall give bond, with good security to be judged by the probate court, in the sum of $5,000.00. The bond shall be payable to the probate court for the benefit of all concerned. It shall be attested by the judge or clerk of the probate court and shall be conditioned upon the faithful discharge of the county administrator's duty as such, as required by law. Actions on the bond may be brought by any person aggrieved by the misconduct of the county administrator, as provided by law for actions on the bonds of other administrators.
The probate court may, for good cause shown, as provided in Code Sections 29-3-82, 29-5-92, and 53-7-14, revoke the letters of administration of the county administrator or letters of guardianship of the county administrator, require additional security on the county administrator's bond, or pass such other order as is expedient and necessary for the good of any particular estate in the hands of any county administrator.
(a) If, in the opinion of the probate court or upon the petition of an heir, it shall become necessary for the good of any estate placed or about to be placed in the hands of the county administrator for the administrator to give additional security on the bond or to give additional bond with security, the probate court shall have the authority to fix the amount of the bond and shall cite the county administrator to appear at a regular term of the court and show cause, if any, why the additional bond or additional security should not be given.
(b) If, upon the hearing, the county administrator fails to show good cause why the additional bond or additional security should not be given, the probate court shall pass an order fixing the amount of the bond and directing the county administrator to give additional security on or before a day named, which day shall be within 30 days of the date of the order.
(c) Should the county administrator fail, refuse, or neglect to give additional bond or additional security on or before the day fixed in the order of the probate court and fail to show good cause why further time should be allowed, it shall be the duty of the probate court to remove the county administrator and to appoint another for the unexpired term of office. The order of removal shall be recorded as provided for the order of appointment.
Nothing in this article shall be construed to require the probate court to vest administration in the county administrator or any other person when the heirs agree to settle the estate without administration.
(a) Unless otherwise provided in this Code section, any person who seeks to qualify to serve as the personal representative of an intestate estate or as a temporary administrator shall be required to give bond with good and sufficient security.
(b) A national banking association or a bank or trust company organized under the laws of this state that seeks to qualify as a personal representative of an intestate estate or temporary administrator shall not be required to give bond for the faithful performance of its duties unless its combined capital, surplus, and undivided profits are less than $400,000.00 as reflected in its last statement filed with the comptroller of the currency of the United States or the commissioner of banking and finance or unless the instrument under which it seeks to qualify expressly provides that it shall give bond.
(c) A person petitioning to qualify as a personal representative of an intestate estate may be relieved from the requirement for giving bond by the unanimous consent of the heirs of the estate. With respect to any heir who is not sui juris, consent may be given by the guardian of the individual. The personal representative of a deceased heir is authorized to consent for that heir. In no case may consent on behalf of an heir who is not sui juris be effective if the person consenting is the person petitioning to serve as personal representative.
(d) The provisions of this Code section shall not apply to bonds described in Code Section 53-6-41 and Code Section 53-6-53.
(e)(1) When the assets of the estate consist only of one or more choses in action of indeterminate value and the personal representative or temporary administrator is not relieved from the requirement for giving bond by subsection (b) or (c) of this Code section, no bond shall be required under subsection (a) of this Code section until the value of any such chose in action is able to be determined by settlement or judgment, whereupon bond shall be set in an amount to be determined in accordance with subsection (c) of Code Section 53-6-51. If the value of any additional such chose in action subsequently is determined by settlement or judgment, the amount of the bond shall be increased in accordance with subsection (c) of Code Section 53-6-51. As used in this subsection, the term ‘chose in action’ shall have the same meaning as provided in Article 2 of Chapter 12 of Title 44.
(2) A personal representative or temporary administrator who qualifies to serve without bond pursuant to paragraph (1) of this subsection shall have no authority to receive the settlement or judgment of a chose in action under this subsection until:
(A) Such personal representative or temporary administrator has posted bond in accordance with paragraph (1) of this subsection; and
(B) Upon the initial posting of bond by such personal representative or temporary administrator in the first instance in which the value of a chose in action is determined by settlement or judgment, amended letters have been issued accordingly.
(a) The bond of a personal representative or temporary administrator shall be secured by an individual who is a domiciliary of this state or by a licensed commercial surety authorized to transact business in this state, shall be payable to the probate court for the benefit of all concerned, shall be conditioned upon the faithful discharge of the personal representative's or temporary administrator's duty as such as required by law, and shall be attested by the judge of the probate court or the clerk of the probate court.
(b) Whenever a personal representative or temporary administrator is required to give bond, the probate court may order the personal representative or temporary administrator to post such bond for a period of time greater than one year, as may be appropriate in the circumstances. A surety on the bond posted pursuant to this Code section shall not be relieved of liability merely because of the expiration of the term of the bond but shall be subject to the provisions of law for the discharge of a surety applicable to other bonds.
(c) The bond shall be in a sum equal to double the value of the estate to be administered; provided, however, that the bond shall be in an amount equal to the value of the estate if secured by a licensed commercial surety authorized to transact business in this state. The value of the estate for purposes of the bond shall be determined without regard to the value of any real property or improvements thereon held by the personal representative or temporary administrator as fiduciary but, upon the conversion of the real property into personalty, a bond shall be given based upon the value of the estate, including the value of the personalty into which the real property was converted.
(d) Substantial compliance with these requisites for the bond shall be deemed sufficient; and no bond shall be declared invalid by reason of any variation from these requisites as to payee, amount, or condition, where the manifest intention was to give bond as personal representative or temporary administrator and a breach of the fiduciary's duty as such has been proved.
If the value of an estate decreases, the probate court may permit a corresponding reduction in the amount of the bond, but this reduction does not affect the liability of the surety for prior waste or misconduct by the personal representative or temporary administrator.
When a personal representative has qualified to serve without bond or is not otherwise required by law to give bond, the probate court, on its own motion or on the representation of any party in interest that the personal representative is mismanaging the estate, shall order the personal representative to appear and show cause as to why bond should not be given or the personal representative's letters revoked. The order shall be served in person on the personal representative at least ten days prior to the hearing. Failure to show cause shall authorize the court to require bond or to revoke the letters or to take any other action as may be necessary under the circumstances.
The clerk of the probate court shall record bonds in a book kept for that purpose and shall retain custody of the bonds.
(a) Personal representatives shall be compensated as specified in either the will or any written agreement entered into prior to the decedent's death or a written agreement signed by all the beneficiaries of a testate estate or all the heirs of an intestate estate. A written agreement between a testator and a personal representative shall be valid and binding upon the estate of the testator as fully and completely as if set forth in and made a part of the will.
(b) If the personal representative's compensation is not specified in the will or any separate written agreement, the personal representative for services rendered shall be entitled to compensation equal to:
(1) Two and one-half percent commission on all sums of money received by the personal representative on account of the estate, except on money loaned by and repaid to the personal representative, and 2 1/2 percent commission on all sums paid out by the personal representative, either for debts, legacies, or distributive shares;
(2) Ten percent commission on the amount of interest made if, during the course of administration, the personal representative shall receive interest on money loaned by the personal representative in that capacity and shall include the same on the return to the probate court so as to become chargeable therewith as a part of the corpus of the estate;
(3) Reasonable compensation, as determined in the discretion of the probate court and after such notice, if any, as the court shall direct, for the delivery over of property in kind, not exceeding 3 percent of the appraised value and, in cases where there has been no appraisal, not over 3 percent of the fair value as found by the judge, irrespective of whether delivery over in kind is made pursuant to proceedings for that purpose in the probate court and irrespective of whether the property, except money, is tangible or intangible, personal or real; and
(4) In the discretion of the probate court, compensation for working land for the benefit of the parties in interest in no case exceeding 10 percent of the annual income of the property so managed.
(c) Whenever any portion of the dividends, interest, or rents payable to a personal representative is required by law of the United States or other governmental unit to be withheld by the person paying the same for income tax purposes, the amount so withheld shall be deemed to have been collected by the personal representative.
(d) Unless the will or written agreement specifies otherwise, where some or all of the estate passes through the hands of several personal representatives by reason of the death, removal, or resignation of the first qualified personal representative, or otherwise, the estate shall not be subject to diminution by charges of commission of each successive personal representative holding and receiving in the same right but rather commissions for receiving the estate shall be paid to the first personal representative who receives the property for the benefit of the estate or that person's representative, and commissions for paying out shall be paid to the personal representative who actually distributes the fund, and no commissions shall be paid for handing over the fund to a successor personal representative. If there is more than one personal representative serving simultaneously, the division of the compensation allowed them shall be according to the services rendered by each.
(e) Unless the will or written agreement specifies otherwise, a personal representative is entitled to receive commissions on debts, legacies, and distributive shares paid to that personal representative in the same manner as commissions to which the personal representative would be entitled under the terms of the will or written agreement or applicable law on such items paid to others; provided, however, that a personal representative shall not be entitled to any commissions for any sums paid to any personal representative of the estate as commissions or other compensation.
(f) Personal representatives who fail to make annual returns as required by law shall forfeit all commissions for transactions during the year within which no return is made unless the probate court, upon cause shown, shall by special order entered on the minutes relieve them from the forfeiture.
(g) A personal representative may renounce the right to all or any part of the compensation to which the personal representative is entitled under this Code section.
Personal representatives shall be allowed reasonable expenses incurred in the administration of the estate, including without limitation expenses for travel, the expenses and premiums incurred in securing a bond, and the expenses of counsel and other agents. Such reasonable expenses shall be determined after such notice, if any, as the court shall direct.
(a) A personal representative may petition the probate court for compensation that is greater than that allowed under Code Section 53-6-60. Service of notice of the petition for extra compensation shall be made on all the heirs of an intestate decedent or on any affected beneficiaries under the will of a testate decedent. Service of notice shall be made in the manner provided by Chapter 11 of this title and shall direct the parties served to file any written objections to the extra compensation with the probate court within 30 days.
(b) After hearing any objection filed by the heirs or beneficiaries of the estate, the probate court shall allow such extra compensation as the court deems reasonable; provided, however, that if no such objection is filed or any such objection is dismissed or withdrawn, the court, in its discretion, may enter an order allowing such extra compensation as the court deems reasonable without a hearing. The allowance of extra compensation shall be conclusive as to all parties in interest.
(c) If the amount of compensation that is specified in a testator's will is less than the amount allowed under Code Section 53-6-60, the personal representative may petition for greater compensation in the manner provided in subsection (a) of this Code section.
(a) Any executor who is a domiciliary of this state may receive compensation for services, as specified in this subsection, from a corporation or other business enterprise where the estate of the decedent owns an interest in the corporation or other business enterprise, provided that:
(1) The services provided by the executor to the corporation or other business enterprise are of a managerial, executive, or business advisory nature;
(2) The compensation received for the services is reasonable; and
(3) The services are performed and the executor is paid pursuant to a contract executed by the executor and the corporation or business enterprise, which contract is approved by a majority of those members of the board of directors or other similar governing authority of the corporation or business enterprise who are not officers or employees of the executor and are not related to the executor and provided the contract is approved by the probate court of the county in which the administration proceeding is pending.
(b) Any executor receiving compensation from a corporation or other business enterprise for services to it as described in subsection (a) of this Code section shall not receive extra compensation in respect to such services as provided in Code Section 53-6-62; provided, however, that nothing in this Code section shall prohibit the receipt by the executor of extra compensation for services rendered in respect to other assets or matters involving the estate.
(c) Nothing in this Code section shall prohibit the receipt by executors of normal commissions and compensation for the usual services performed by executors pursuant to law or pursuant to any fee agreement executed by the testator.
(d) The purpose of this Code section is to enable additional compensation to be paid to executors for business management and advisory services to corporations and business enterprises pursuant to contract, without the necessity of petitioning for extra compensation pursuant to Code Section 53-6-62.
A temporary administrator may apply to the court for reasonable compensation after notice to interested parties in compliance with Chapter 11 of this title. The court shall award reasonable compensation to a temporary administrator. For good cause, including but not limited to services performed and compensation awarded to a temporary administrator, the court may reduce the compensation due the personal representative under other provisions of this article.
(a) The duties and powers of the personal representative commence upon qualification. Such powers relate back to give acts performed by the personal representative prior to qualification that are beneficial to the estate the same effect as those acts performed after qualification. The personal representative may ratify and accept on behalf of the estate acts that are done by others that would have been proper acts for the personal representative. A personal representative is a fiduciary who, in addition to the specific duties imposed by law, is under a general duty to settle the estate as expeditiously and with as little sacrifice of value as is reasonable under all of the circumstances. The personal representative shall use the authority and powers conferred by law, by the terms of any will under which the personal representative is acting, by any order of court in proceedings to which the personal representative is a party, and by the rules generally applicable to fiduciaries to act in the best interests of all persons who are interested in the estate and with due regard for their respective rights.
(b)(1) As part of the petition for letters testamentary, letters of administration with the will annexed, or letters of administration or by separate petition, the beneficiaries of a testate estate or the heirs of an intestate estate may, by unanimous consent, authorize but not require the probate court to grant to the personal representative any of the powers contained in Code Section 53-12-261; provided, however, that the grant by the probate court of the powers provided by paragraph (1) of subsection (b) of Code Section 53-12-261 shall not authorize the personal representative to bind the estate by any warranty in any conveyance or contract in violation of subsection (a) of Code Section 53-8-14.
(2) With respect to any beneficiary of a testate estate or heir of an intestate estate who is not sui juris, the consent required by paragraph (1) of this subsection may be given by such beneficiary's or heir's duly acting conservator or guardian. The personal representative of a deceased beneficiary or heir shall be authorized to consent on behalf of such deceased beneficiary or heir.
(3) The grant of powers provided for in paragraph (1) of this subsection shall be ordered only after publication of a citation in the official newspaper of the county in which the petition is made and only after the time for filing objections has elapsed either without any objection being timely filed, or if any such objection is timely filed, upon each such objection being dismissed or withdrawn. The citation shall be sufficient if it states generally that the petition requests that powers contained in Code Section 53-12-261 be granted.
The personal representative shall be entitled to possess and administer the entire estate. If, after payment of debts and satisfaction of testamentary gifts, there are assets not given under the will, such assets shall be distributed to the heirs of the decedent as if the decedent had died intestate.
An administrator with the will annexed shall have all rights, powers, privileges, exemptions, and immunities of the executor, including the dispensation by the testator of the necessity of making inventory and returns.
Temporary administrators, pending the appointment of a personal representative, and executors, pending litigation of caveats to wills, are authorized to carry out existing contracts of the decedent, carry on the business of the decedent, and do such acts as are necessary for the protection and preservation of the estate provided proper orders are secured from the probate court after due notice to all parties in interest.
(a) If more than one personal representative is qualified and unless the will provides otherwise:
(1) The personal representatives must act by their unanimous action; provided, however, that while a personal representative is unable to act because of inaccessibility, illness, or other incapacity, or when a vacancy occurs for any other reason, the remaining personal representatives may act as if they were the only personal representatives if necessary to administer the estate; and
(2) The personal representatives may delegate in writing to one or more of them the authority to act for all of them; provided, however, that such delegation must satisfy the requirements of Code Sections 10-6B-5 and 10-6B-40, and that all the personal representatives remain liable for the actions of the personal representative who is authorized to act.
(b) If more than one personal representative is qualified and unless the will provides otherwise, a personal representative is liable for a breach committed by another personal representative:
(1) By participating in a breach of fiduciary duty committed by the other personal representative;
(2) By approving, knowingly acquiescing in, or concealing a breach of fiduciary duty committed by the other personal representative;
(3) By negligently enabling the other personal representative to commit a breach of fiduciary duty; or
(4) By neglecting to take reasonable steps to compel the other personal representative to redress a breach of fiduciary duty in a case where the personal representative knows or reasonably should have known of the breach of trust.
(c) When safe-deposit boxes or receptacles are leased or rented to fiduciaries, including executors, administrators, guardians, trustees, custodians, receivers, and the like, the fiduciary or fiduciaries, as lessee or renter, may authorize the entering of the box or receptacle by one or fewer than all of them or by any other person without the presence or consent of the fiduciary or fiduciaries. Upon receipt of the written authorization, the bank or lessor may without liability authorize access to the box or receptacle in accordance with such authorization. Upon cancellation of the authorization, the bank or lessor may require the presence of all lessees or renters for access.
(a) Except as otherwise provided in the will or ordered by the probate court, a personal representative is authorized:
(1) To borrow money and to bind the estate by the execution of a promissory note for money borrowed and to pledge any or all the property of the estate for the payment of such a promissory note by mortgage, trust deed, deed to secure debt, or other security instrument, for the purpose of paying any gift, estate, inheritance, income, sales, or ad valorem taxes due the United States, the state, or any municipality or county of the state that constitute a claim or demand against the estate; provided, however, that a personal representative who desires to borrow money shall file a petition with the probate court, setting forth the facts and specifying the amount to be borrowed, the purpose for which the same shall be used, the rate of interest to be paid, the property to be pledged as security and the period of time over which the loan is to be repaid and, upon service of notice of the petition, an order granting leave to borrow the money and encumber the estate shall be entered and such order shall be binding, final, and conclusive as to all interested parties;
(2) To make contracts for labor or service for the benefit of the estate upon such terms as the personal representative deems best and all such contracts made in good faith shall be a charge upon and bind the estate whenever such contracts are approved by the probate court after service of notice;
(3) To fulfill, as far as possible, the executory contracts and comply with the executed contracts of the decedent, including contracts for the sale of land or bonds to make title to land, and shall have a corresponding right to demand the same of parties contracted with; provided, however, that if the personal skill of the decedent entered into the consideration of the contract and the decedent's death renders execution impossible, the contract, though entire, shall be considered divisible and closed at the decedent's death and any partial execution by the decedent shall authorize and require a corresponding compliance by the other contracting party;
(4) To provide competent legal counsel for the estate according to the needs of the estate and, in such cases, either the personal representative or the attorney employed may, by petition to the probate court and citation served on the other, obtain a judgment fixing the attorney's fees and expenses;
(5) To continue the business of the decedent for the 12 months following qualification of the personal representative, after which the personal representative may petition for permission to continue the business under such terms and conditions as the probate court may specify after service of notice; and
(6) To petition the probate court for permission to perform such other acts as may be in the best interests of the estate after service of notice.
(b) Service of notice of any petition to the probate court under subsection (a) of this Code section shall be made in the manner provided by Chapter 11 of this title. The probate court, in its discretion, may, but shall not be required to, conduct a hearing on any such petition.
Except as otherwise provided in the will, income received by an executor during the period of administration from property that is used to pay debts, taxes, expenses of administration, general testamentary gifts, and other expenses chargeable to corpus shall be paid to the income beneficiaries of the residuum of the estate; provided, however, that nothing contained in this Code section shall alter or repeal Code Section 53-4-60.
Whenever a personal representative has paid all the debts of the decedent and all claims against the estate, and property due minor heirs or beneficiaries for whom no one applies to be conservator is left in the personal representative's hands, the personal representative may, under the direction of the probate court, apply so much of the minor's share of the decedent's estate as may be necessary for support and education as conservators are allowed by law to do.
(a) For purposes of this article, the term “personal representative” includes temporary administrators.
(b) When an action is brought against a personal representative in that person's representative capacity, the personal representative may make the following defenses:
(1) That person does not occupy the position of personal representative, as alleged;
(2) That no assets have come into the hands of the personal representative;
(3) That all assets coming into the hands of the personal representative have been fully administered;
(4) That all assets coming into the hands of the personal representative have been fully administered except those necessary to satisfy debts of a greater priority;
(5) That the personal representative has fully administered the assets that came into the personal representative's hands; or
(6) That, pending the action, the letters testamentary or of administration have been revoked and the administration committed to another to whom all the assets that came into the personal representative's hands have been delivered.
When the cause of action originated in the lifetime of the decedent, a personal representative may make any defense or pleading that the decedent could have made if alive.
An action against joint personal representatives shall not abate by the death of one but shall proceed against the survivor or survivors.
(a) In any action or proceeding brought pursuant to this article, service of any notice, writ, or process shall be made in the manner provided by Chapter 11 of this title if Chapter 11 of this title is applicable under Code Section 53-11-1. If Chapter 11 of this title is not applicable to such action or proceeding under Code Section 53-11-1, such service shall be made in the manner provided by Chapter 11 of Title 9 unless Chapter 11 of said title is not applicable to such action or proceeding under Code Section 9-11-81.
(b) In all cases where there are two or more personal representatives and one or more of them remove beyond the limits of this state, service of any notice, writ, or process upon those remaining in the state shall be as effectual and complete, for all purposes whatever, as though such service had been made upon all of the personal representatives.
(a) When letters testamentary or letters of administration are revoked, no action by or against the removed personal representative shall abate. The newly appointed personal representative may be made a party plaintiff or defendant in place of the removed personal representative.
(b) The revocation of letters of administration shall not abate any action pending for or against the personal representative, but the newly appointed personal representative shall be made a party in proper cases as in the death of a party.
The provisions of law governing the situation in which the surety on a guardian's or conservator's bond dies, becomes insolvent, removes beyond the limits of this state, from other cause becomes insufficient, or desires to be relieved as surety shall be applicable to sureties on personal representatives' bonds.
The personal representative and sureties shall be held and deemed joint and several obligors and may be subjected jointly and severally to liability in the same action. When a personal representative removes beyond the limits of this state, dies and leaves an unrepresented estate, or is in such a position that an attachment may be issued as against a debtor, any party in interest or any person having demands against that personal representative in the personal representative's representative capacity may institute an action against the sureties or any one or more of them upon the bond of the personal representative in the first instance, without first obtaining a judgment against the personal representative in that person's representative capacity. No prior judgment establishing the liability of the personal representative or a devastavit by the personal representative shall be necessary before an action is brought against the sureties on the bond.
If two or more personal representatives unite in a common bond, all the sureties shall be bound for the acts of each personal representative and the personal representatives themselves shall be mutual sureties for each other's conduct.
In all cases of removal of a personal representative for any cause, the sureties on that personal representative's bond shall be liable for the personal representative's acts in connection with the estate up to the time of settlement with another personal representative or the distributees of the estate.
When any personal representative fails to settle and account with any heir or beneficiary of the estate, the heir or beneficiary may bring an action on the bond of the personal representative in the first instance and may recover judgment against the principal and the principal's sureties without first bringing an action against the personal representative in that person's representative capacity.
Upon the rendition of a judgment against a personal representative upon any liability of the decedent and a return of writ of execution marked nulla bona, the plaintiff may at once bring an action on the bond of the personal representative and may recover judgment against the principal and the sureties in the same action. If the principal has removed beyond the limits of this state or has died and has no legal representative, the plaintiff may bring an action against the sureties on the bond alone, without joining the principal.
In an action against a personal representative in that person's representative capacity, the judgment shall generally be de bonis testatoris. However, when the personal representative unsuccessfully makes any of the defenses described in Code Section 53-7-10 or a release, the judgment shall be that the plaintiff recover both the debt and costs, to be first levied on the property of the decedent, if found, and if such property is not found, then to be levied on the property of the defendant personal representative.
(a) When a judgment has been obtained against the principal and surety or sureties on the bond of a personal representative, guardian, or other fiduciary, a levy may be made upon any property of any defendant in fi. fa.
(b) The probate court shall be authorized to enter a judgment and to issue a writ of execution against the principal and surety or sureties on the bond of a personal representative, guardian, or other fiduciary and shall be further authorized to grant judgment and execution in favor of the surety or sureties against the principal upon payment of the judgment by the surety or sureties.
In all cases of judgments recovered against a personal representative and the sureties of a personal representative, the execution shall first be levied on the property of the sureties, and no levy shall be made on the property of the principal until there is a return of nulla bona as to the sureties.
Unless otherwise provided by will or relieved under Code Section 53-7-32 or 53-7-33, the personal representative shall prepare an inventory of all the property of the decedent. The personal representative shall file the inventory with the probate court and shall deliver a copy of the inventory to the beneficiaries of a testate estate or the heirs of an intestate estate by first-class mail within six months after the qualification of the personal representative. It shall not be necessary to mail a copy of the inventory to any beneficiary or heir who is not sui juris or for the court to appoint a guardian for such person. The time for filing the inventory may be extended by the probate court for good cause shown. The inventory shall state that it contains a true statement of all the property of the decedent within the knowledge of the personal representative and shall be verified in the same manner as a petition filed in the probate court. The inventory shall state that the inventory has been mailed to all beneficiaries or heirs who are entitled to receive the inventory and shall provide the name of any beneficiary or heir who has waived the right to receive the inventory, as provided in Code Section 53-7-32.
The inventory provided for in Code Section 53-7-30 shall be made jointly by all the personal representatives but shall not be conclusive proof of joint possession of the assets.
(a) Any beneficiary of a testate estate or heir of an intestate estate may waive individually the right to receive the inventory from the personal representative. Such waiver shall be made in a signed writing that is delivered to the personal representative and may be revoked in writing by the beneficiary or heir at any time.
(b) By unanimous written consent, the beneficiaries of a testate estate or the heirs of an intestate estate may authorize the probate court to relieve the personal representative of the duty to make inventory in the same manner as described in subsection (b) of Code Section 53-7-1. Any such unanimous written consent, regardless of the date of execution, which relieves the personal representative from making inventory shall also relieve the personal representative from sending a copy of the inventory to the heirs or beneficiaries.
A testator may, by will, dispense with the necessity of the personal representative's making an inventory to the probate court or the beneficiaries or both, provided the same does not work any injury to creditors or persons other than beneficiaries under the will. If a will was executed in another state and the will is valid in this state and under the laws of the state where the will was executed the personal representative would not have been required to file inventories or if the will otherwise expresses an intent to relieve the personal representative from all reporting requirements, such a will shall be construed as dispensing with the necessity of inventories in Georgia, provided the same does not work any injury to creditors or parties other than beneficiaries under the will. In all wills, regardless of the date of execution, relief from making inventory with the court shall also relieve the personal representative from sending a copy of the inventory to the beneficiaries.
Unless the inventory is waived pursuant to Code Section 53-7-32 or a testator by will dispenses with the necessity of having a personal representative make an inventory pursuant to Code Section 53-7-33, the failure of a personal representative to return a correct inventory shall be sufficient grounds for removal.
Unless otherwise provided by law, all property of the estate, both real and personal, shall be liable for the payment of claims against the estate in the following order:
(1) Year's support for the family;
(2) Funeral expenses, whether or not the decedent leaves a surviving spouse, in an amount which corresponds with the circumstances of the decedent in life. If the estate is solvent, the personal representative is authorized to provide a suitable protection for the grave;
(3) Other necessary expenses of administration;
(4) Reasonable expenses of the decedent's last illness;
(5) Unpaid taxes or other debts due the state or the United States;
(6) Judgments, secured interests, and other liens created during the lifetime of the decedent, to be paid according to their priority of lien. Secured interests and other liens on specific property shall be preferred only to the extent of such property; and
(7) All other claims.
(a) The personal representative shall be allowed six months from the date of the qualification of the first personal representative to serve in which to ascertain the condition of the estate.
(b) Every personal representative shall, within 60 days from the date of qualification, publish a notice directed generally to all of the creditors of the estate to notify the personal representative of their claims and render an account of their demands for payment thereon. The personal representative's notice shall be published once a week for four weeks in the official newspaper of the county in which the personal representative qualified. No particular form shall be required for creditors to notify the personal representative of their claims, and such notification of a creditor's claim shall be sufficient for purposes of this Code section if given in writing, providing an account number or other identifying information or itemization adequate to establish the indebtedness as an obligation of the estate, and stating the principal balance and any applicable interest or other additional charges lawfully owed. An invoice or account statement satisfying the requirements of the preceding sentence of this subsection and generated by a creditor in the ordinary course of such creditor's business shall constitute sufficient notification to the personal representative of such creditor's claim if the personal representative actually receives such notification of the claim or if such creditor files such notification with the probate court having jurisdiction over the decedent's estate or sends such notification of the claim by electronic transmission, other form of wire or wireless communication, or by first-class mail or private carrier to the address of the decedent, the personal representative, or the attorney representing the personal representative; provided, however, that a notification of a claim sent by a creditor by electronic communication to an account for which the decedent is the user shall constitute sufficient notification to the personal representative of such creditor's claim only if the content of such electronic communication lawfully is disclosed to the personal representative pursuant to Chapter 13 of this title. As used in this subsection, the terms “account”, “content of an electronic communication”, “electronic communication”, and “user” shall have the meaning provided by Code Section 53-13-2.
(c) After receiving sufficient notification of a creditor's claim under subsection (b) of this Code section, the personal representative may require reasonable additional proof or accounting from such creditor prior to paying such creditor's claim, but such requirement by the personal representative shall not affect adversely the timeliness of such creditor's notification to the personal representative of the creditor's claims.
(d) Creditors who fail to notify the personal representative of their claims in the manner provided by subsection (b) of this Code section within three months from the date of publication of the personal representative's last notice shall lose all rights to an equal participation with creditors of equal priority to whom distribution is made before sufficient notification of such claims is given to the personal representative, and they may not hold the personal representative liable for a misappropriation of the funds. If, however, there are assets in the hands of the personal representative sufficient to pay such debts and if no claims of greater priority are unpaid, the assets shall be thus appropriated notwithstanding failure of such creditors to timely notify the personal representative of their claims.
(a) The personal representative shall not be required to pay the debts of the estate, wholly or in part, until six months from the date of qualification of the first personal representative to serve. If partial payment shall be made, it shall be pro rata on debts of equal priority, including debts due the personal representative, and shall continue pro rata until the debts of the estate shall be paid out. Successive dividends to creditors shall be made at the end of every year until the estate shall be paid out.
(b) No action to recover a debt due by the decedent shall be commenced against the personal representative until the expiration of six months from the date of qualification of the first personal representative to serve.
If the estate shall have been distributed to the heirs or beneficiaries without notice of an existing debt, a creditor may compel them to contribute pro rata to the payment of the debt.
Except as otherwise provided by the will, any debt not due by its terms at the time for payment of debts of equal priority shall be satisfied and the estate shall be discharged with respect to such debt in such manner as the personal representative deems to be in the best interest of the estate in accordance with the following rules:
(1) The debt may be prepaid in accordance with the terms of any right to prepay;
(2) By agreement with the creditor, the debt may be satisfied before it is due by the payment of an amount representing the agreed present value of the debt;
(3) By agreement with the creditor, the debt may be assumed by one or more heirs or beneficiaries or by any other person; and
(4) By agreement with the creditor, or by order of the probate court after notice to the creditor and a hearing, arrangement for future payment may be made by creating a trust, giving a deed to secure debt or security interest, obtaining a bond or other security from one or more heirs or beneficiaries, or otherwise.
Personal representatives are authorized to compromise, adjust, arbitrate, assign, sue or defend, abandon, or otherwise deal with or settle debts or claims in favor of or against the estate. A personal representative who declines to litigate any claim may assign the claim to a creditor or an heir of an intestate estate or a beneficiary of a testate estate for the purpose of prosecuting the claim at that person's own expense and, after reimbursement of the expenses to the creditor, heir, or beneficiary, any remaining proceeds shall be paid over to the personal representative for administration.
(a) A personal representative who has fully performed all duties or who has been allowed to resign may petition the probate court for discharge from the office and from all liability. The petition shall state that the personal representative has fully administered the estate of the decedent and shall set forth the names and addresses of all known heirs of an intestate decedent or beneficiaries of a testate decedent, including any persons who succeeded to the interest of any heir or beneficiary who died after the decedent died, and shall name which of the heirs or beneficiaries is or should be represented by a guardian. The petition shall state that the personal representative has paid all claims against the estate or shall enumerate which claims of the estate have not been paid and the reason for such nonpayment. The petition shall also state that the personal representative has filed all necessary inventory and returns or, alternatively, has been relieved of such filings by the testator, the heirs or beneficiaries, or the probate court.
(b)(1) Subject to paragraphs (2) and (3) of this subsection, upon the filing of a petition for discharge, citation shall issue to all heirs or beneficiaries, as provided in Chapter 11 of this title, requiring them to file any objections to the discharge, except that in all cases a citation shall be published one time in the newspaper in which sheriff's advertisements are published in the county in which the petition is filed at least ten days prior to the date on or before which any objection is required to be filed. Any creditors whose claims are disputed or who have not been paid in full due to insolvency of the estate shall be served in accordance with Chapter 11 of this title.
(2) Notwithstanding paragraph (1) of this subsection, it shall not be necessary to serve with notice any heir or beneficiary who has relieved the personal representative of all liability or any heir or beneficiary with respect to whom the personal representative has been relieved of all further liability in a binding proceeding such as a settlement of accounts pursuant to Code Sections 53-7-60 through 53-7-63 or an intermediate report pursuant to Code Sections 53-7-73 through 53-7-76.
(3) For purposes of this Code section, a beneficiary is a person, including a trust, who is designated in a will to take an interest in real or personal property and who (A) has a present interest, including but not limited to a vested remainder interest but not including a trust beneficiary where there is a trustee who is not also the personal representative seeking discharge and (B) whose identity and whereabouts are known or may be determined by reasonable diligence. For purposes of this Code section, a trust beneficiary may be represented as provided in Code Section 53-12-8.
(c) If any party in interest files objection to the discharge, a hearing shall be held. If as a result of the hearing, the probate court is satisfied that the personal representative has faithfully and honestly discharged the office, an order shall be entered releasing and discharging the personal representative from all liability. If no objections are filed, the probate court shall enter the order for discharge without further proceedings or delay. Any heir or beneficiary or creditor who is a minor at the time of the discharge and who is not represented by a guardian may, within two years of reaching the age of majority, commence suit against the personal representative and such discharge shall be no bar to the action.
(d) If other property of the estate is discovered after an estate has been settled and the personal representative discharged, the probate court, upon petition of any interested person and upon such service or notice as it directs, may appoint the same personal representative or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the probate court orders otherwise, the provisions of this title shall apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.
(e) A personal representative may petition the court solely for discharge from office by filing the petition described in subsection (a) of this Code section and by serving notice by publication one time in the official county newspaper and by first-class mail to all creditors of the estate whose claims have not been paid informing them of their right to file an objection and be heard as described in subsection (c) of this Code section.
If funds are in the hands of the personal representative and no person claims such funds, the probate court may nevertheless grant a discharge.
A temporary administrator may be discharged in the same manner as provided for discharge of personal representatives.
A discharge obtained by the personal representative by means of any fraud is void and may be set aside on motion and proof of fraud.
(a) If a personal representative or temporary administrator commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a beneficiary of a testate estate or heir of an intestate estate shall have a cause of action:
(1) To recover damages;
(2) To compel the performance of the personal representative's or temporary administrator's duties;
(3) To enjoin the commission of a breach of fiduciary duty;
(4) To compel the redress of a breach of fiduciary duty by payment of money or otherwise;
(5) To appoint another personal representative or temporary administrator to take possession of the estate property and administer the estate;
(6) To remove the personal representative or temporary administrator; and
(7) To reduce or deny compensation to the personal representative or temporary administrator.
(b) When estate assets are misapplied and can be traced in the hands of persons affected with notice of misapplication, a constructive trust shall attach to the assets.
(c) The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law.
(d) In any action or proceeding brought pursuant to this Code section, service of notice or process shall be made in the manner provided by Chapter 11 of this title if Chapter 11 of this title is applicable under Code Section 53-11-1. If Chapter 11 of this title is not applicable to such action or proceeding under Code Section 53-11-1, such service shall be made in the manner provided by Chapter 11 of Title 9 unless Chapter 11 of such title is not applicable to such action or proceeding under Code Section 9-11-81.
(a) Upon the petition of any person having an interest in the estate or whenever it appears to the probate court that good cause may exist to revoke the letters of a personal representative or impose other sanctions, the court shall cite the personal representative to answer to the charge. Upon investigation, the court may, in the court's discretion:
(1) Revoke the personal representative's letters;
(2) Require additional security;
(3) Require the personal representative to appear and submit to a settlement of accounts following the procedure set forth in Article 6 of this chapter, regardless of whether the personal representative has first resigned or been removed and regardless of whether a successor fiduciary has been appointed; or
(4) Issue such other order as in the court's judgment is appropriate under the circumstances of the case.
(b) In any proceeding brought pursuant to this Code section, service of notice shall be made in the manner provided by Chapter 11 of this title.
(a) A personal representative may resign:
(1) In the manner and under the circumstances described in the will;
(2) Upon petition to the probate court, showing that the resignation has been requested in writing by all heirs of an intestate estate or all beneficiaries of a testate estate; or
(3) Upon petition to the probate court, showing to the satisfaction of the court that:
(A) The personal representative is unable to continue serving due to age, illness, infirmity, or other good cause;
(B) Greater burdens have developed upon the office of personal representative than those that originally were contemplated or should have been contemplated when the personal representative was qualified and the additional burdens would work a hardship upon the personal representative;
(C) Disagreement exists between one or more of the beneficiaries or heirs and the personal representative in respect to the personal representative's management of the estate, which disagreement and conflict appear deleterious to the estate;
(D) The resignation of the personal representative will result in or permit substantial financial benefit to the estate;
(E) The resigning personal representative is one of two or more acting personal representatives and the other personal representatives will continue in office with no adversity to the estate contemplated; or
(F) The resignation would not be disadvantageous to the estate.
(b) A personal representative's petition to resign shall be made to the probate court and the court shall cause citation to issue and service of notice to be made upon all the heirs of an intestate estate or the beneficiaries of a testate estate in the manner provided by Chapter 11 of this title.
The superior court shall have concurrent jurisdiction with the probate court over the settlement of accounts of personal representatives.
If the personal representative resigns, is removed, or dies, an heir of an intestate estate or a beneficiary of a testate estate, the sureties of the personal representative or other personal representatives, or the successor personal representative may petition for an accounting and settlement. In the event a petition is filed for such accounting and settlement, the probate court shall retain jurisdiction over the personal representative until such accounting and settlement is completed.
(a) Any person interested as an heir or beneficiary of an estate or the probate court may, after the expiration of six months from the granting of letters, cite the personal representative to appear before the probate court for a settlement of accounts. Alternatively, if the personal representative chooses, the personal representative may cite all the heirs or beneficiaries and all persons who claim to be creditors whose claims the personal representative disputes or cannot pay in full to be present at the settlement of the personal representative's accounts by the court. The settlement shall be conclusive upon the personal representative and upon all the heirs or beneficiaries and all remaining persons who claim to be creditors who receive service of notice of the settlement proceeding in the probate court and the hearing in the manner provided by subsection (b) of this Code section or by Chapter 11 of this title. The court may, in the court's discretion, give the personal representative additional time to settle the estate.
(b) If the personal representative fails or refuses to appear as cited, the probate court may proceed without the appearance of the personal representative. If the personal representative has been required to give bond, the surety on such bond shall be bound by the settlement if the surety is served with notice by personal service of the settlement proceeding in the probate court. If one or more unsuccessful attempts at service are made by the sheriff or the sheriff's deputies upon the personal representative at the last address of the personal representative in the court records and it appears to the probate court that further attempts are likely to be futile, then service of notice shall be sufficient upon the personal representative for purposes of this Code section if the citation is mailed by first-class mail to such address.
(c) Any party to the settlement shall have the right to appeal.
Upon proof of issuance of citation and service of notice pursuant to Code Section 53-7-62, the probate court may proceed to make an account, hear evidence upon any contested question, and make a final settlement between the personal representative and the heirs or beneficiaries. The settlement may be enforced by a judgment, writ of fieri facias, execution, or attachment for contempt.
A personal representative shall account for income on the property administered as follows:
(1) The personal representative shall be charged with all income earned during the period of one year after the date of qualification;
(2) For the period beginning one year after the date of qualification, the personal representative shall account for income as follows:
(A) All income earned on property the personal representative is:
(i) Authorized by the laws of this state to hold or invest in without securing the approval of any court to do so;
(ii) Authorized by any court to hold or invest in; or
(iii) Authorized by will to hold or invest in; and
(B) On all other property administered by the personal representative and, except as provided in paragraph (3) of this Code section, the personal representative shall be charged with the greater of the income earned on such property or the income it would have earned if invested at the legal rate of interest fixed by the laws of this state and in effect during the time the property was held. In applying this subparagraph, each item of property shall be treated separately, and income in excess of the legal rate of interest earned on one item may not be used to make up any deficiency in the income earned on another item; and
(3) The personal representative shall be charged only with interest actually earned, if any, on funds held in a reasonable sum to pay anticipated expenses.
The final receipts on settlements given by heirs or beneficiaries to a personal representative, whether a judicial or an informal settlement, may be admitted to record by the clerk of the probate court or the clerk of the superior court in either the county of residence of the personal representative or the county in which the estate is administered if attested by a judge of any court of this state, a magistrate, or a notary public. When recorded, the receipts shall be admitted in evidence without further proof. In case of loss of the original, a copy may be used in evidence under the same rules as for admission of copies of registered deeds.
When litigation against the estate is pending or is threatened or when notice of a claim has been given to the personal representative, the personal representative may demand that the heirs or beneficiaries give refunding bonds to indemnify the personal representative against the claims. Upon the failure of the heirs or beneficiaries to give such bonds, the personal representative may reserve enough of the assets to respond to the claims.
(a) Within 60 days of the anniversary of the date of qualification, in each year, every personal representative required by the laws of this state to make annual returns shall file with the probate court a true and just verified accounting of the receipts and expenditures in behalf of the estate during the year preceding the anniversary date of qualification, together with a note or memorandum of any other fact necessary to the exhibition of the true condition of the estate. The return shall include an updated inventory of the assets of the estate as of the anniversary date of qualification. With this return, either the original vouchers shall be filed, showing the correctness of each item, or, in lieu thereof, the personal representative shall attach an affidavit stating that the original vouchers have been compared to each item on the return and that the return is correct; but the probate court shall require the original vouchers to be produced for good cause shown. If the original vouchers are filed with the return, they shall remain in the probate court for 30 days.
(b) The probate court, upon petition of the personal representative or upon the court's own motion, may change the reporting period from the year immediately preceding the anniversary date of qualification to the year immediately preceding a date ordered by the court. In lieu of changing the reporting date, the probate court is authorized to accept and approve a return even if the return does not cover the appropriate reporting period; however, such acceptance shall not change the reporting period established by either the anniversary date of qualification or a subsequent order of the court, unless the court also enters an order changing the reporting date.
(a) Upon filing the annual return with the probate court, the personal representative shall mail by first-class mail a copy of the return, but not the vouchers, to each heir of an intestate estate or each beneficiary of a testate estate. It shall not be necessary to mail a copy of the return to any heir or beneficiary who is not sui juris or for the court to appoint a guardian for such person. The personal representative shall file a verified statement with the probate court stating that all required mailings of the return to heirs or beneficiaries have been made.
(b) Any heir or beneficiary may waive individually the right to receive a copy of the annual return by a written statement that is delivered to the personal representative. Such waiver may be revoked in writing at any time.
(c) By unanimous written consent, the heirs of an intestate estate or the beneficiaries of a testate estate may authorize the probate court to relieve the personal representative from filing annual returns with them or with the court or both, in the same manner as provided in subsection (b) of Code Section 53-7-1 for the granting of powers to a personal representative. Any such unanimous written consent, regardless of the date of execution, that relieves the personal representative from filing annual returns with the court shall also relieve the personal representative from sending a copy of the return to the heirs or beneficiaries.
A testator may, by will, dispense with the necessity of the personal representative's filing an annual return with the probate court or the beneficiaries or both, provided the same does not work any injury to creditors or persons other than beneficiaries under the will. If a will was executed in another state and the will is valid in this state and under the laws of the state where the will was executed the personal representative would not have been required to file annual returns or if the will otherwise expresses an intent to relieve the personal representative from all reporting requirements, such a will shall be construed as dispensing with the necessity of annual returns in Georgia, provided the same does not work any injury to creditors or parties other than beneficiaries under the will. In all wills, regardless of the date of execution, relief from filing returns with the court shall also relieve the personal representative from sending a copy of the return to the beneficiaries.
(a) Except as provided in subsection (b) of this Code section, a personal representative shall furnish to the heirs of an intestate estate or the beneficiaries of a testate estate, at least annually, a statement of receipts and disbursements.
(b) Any heir or beneficiary may waive individually the right to receive a statement of receipts and disbursements in the same manner as provided in subsection (b) of Code Section 53-7-68 for waiving the right to receive a copy of an annual return. The heirs or beneficiaries may authorize the probate court to relieve the personal representative from furnishing statements of receipts and disbursements in the same manner as provided in subsection (c) of Code Section 53-7-68 for relieving the personal representative from filing annual returns. A testator may, by will, dispense with the necessity of the personal representative's furnishing a statement of receipts and disbursements in the same manner as provided in Code Section 53-7-69 for dispensing with the necessity of the personal representative's filing an annual return.
The probate court shall carefully examine each return of a personal representative and its vouchers; and if the court finds it correct and no objection is filed within 30 days of the time it is filed and mailed to the heirs or beneficiaries, the court shall allow the return to be recorded, together with the original or copy vouchers attached. The return and copy vouchers shall be kept on file in the probate court. If the original vouchers are filed without copies, they shall when recorded be returned to the personal representative on demand. The return thus allowed and recorded shall be prima-facie evidence in favor of the personal representative of its correctness.
(a) The return of a nonresident personal representative may be admitted to record upon affidavit of the personal representative's surety.
(b) If a personal representative is dead, the personal representative of the estate of the deceased personal representative or, if at any time there is no such personal representative of the estate of the deceased personal representative, any surety on the bond of the deceased personal representative may make returns of the accounts of such deceased personal representative in the same manner and with the same effect as if the deceased personal representative were living.
To ensure annual returns from every personal representative, it shall be the duty of the probate court to keep a docket of all those who are liable to make returns and, immediately after the ceasing of the January term or as soon thereafter as the court deems practical in each year, to cite all defaulters to show cause for their neglect. A willful and continued failure to make a return shall be good cause for removal.
(a) Any time after the six-month period following qualification, but not more frequently than once every 12 months, a personal representative may file with the probate court a report to be known as an intermediate report to the date specified.
(b) Whenever a personal representative elects to file an intermediate report under subsection (a) of this Code section, the petition and report shall set forth all of the information required by law in annual returns and, in addition thereto, shall show:
(1) The period which the report covers;
(2) The names and addresses of living heirs of an intestate estate or beneficiaries of a testate estate known to the personal representative with the names of those who have or require a guardian; a description of any possible unborn or unascertained beneficiaries; and the name of the surety on the personal representative's bond, with the amount of the bond;
(3) In a separate schedule, the principal on hand at the beginning of the accounting period and the status at that time of its investment; the investments received from the decedent and still held; additions to principal during the accounting period, with dates and sources of acquisition; investments collected, sold, or charged off during the accounting period, with the consequent loss or gain and whether credited to principal or income; investments made during the accounting period, with the date, source, and cost of each; deductions from the principal during the accounting period, with the date and purpose of each; and principal on hand at the end of the accounting period, how invested, and the estimated market value of each investment;
(4) In a separate schedule, the income on hand at the beginning of the accounting period and in what form held; income received during the accounting period, when, and from what source; income paid out during the accounting period, when, to whom, and for what purpose; and income on hand at the end of the accounting period and how invested;
(5) A statement of unpaid claims, with the reason for the failure to pay them, including a statement as to whether any estate or inheritance taxes have become due with regard to the property and, if due, whether paid;
(6) A brief summary of the account; and
(7) Such other facts as the court may by rule or by court order require.
(c) The probate court, upon the petition and return being filed, shall issue a citation and shall require any objections to be filed in conformity with Chapter 11 of this title. Service shall be made on the heirs of an intestate estate or the beneficiaries of a testate estate or such other persons as the court requires in conformity with Chapter 11 of this title.
At or before the time fixed for hearing, any parties at interest may file objections to the personal representative's report, actions, and accounting, in which case the hearing on the accounting shall automatically be continued until a date certain, when, subject to the probate court's power to grant continuances, the same shall be heard as other cases pending in the probate court with like right of appeal to the superior court. In such case, an appeal by consent may be taken to the superior court; provided, however, that such appellate procedures shall not apply to cases provided for by Article 6 of Chapter 9 of Title 15. The parties at interest who have been served with notice as provided in subsection (c) of Code Section 53-7-73 and who have filed no objections to the report and accounting need not be served with notice of an appeal or any other or further proceedings, and their consent shall not be required for an appeal to the superior court.
(a) Except as otherwise provided in subsection (b) of this Code section and in paragraph (7) of subsection (a) of Code Section 15-9-127, whenever it appears that a question of construction of a will is involved in the accounting, the probate court, upon its own motion or upon the motion of any party in interest, shall enter an order transferring the accounting to the superior court for the determination of all such questions, which shall be presented to, heard, and determined by the superior court as appeals from the probate court are presented, heard, and determined.
(b) A probate court subject to Article 6 of Chapter 9 of Title 15 shall have jurisdiction over questions of construction of a will involved in the accounting and may determine all such questions without transferring the accounting to the superior court.
(c) The probate court may suspend further proceedings pending a final determination of the questions of construction.
(d) After a final determination of the questions of construction, the probate court shall proceed with the accounting.
Should it appear from the intermediate report that the personal representative is liable to the estate or to any beneficiary of the estate, the probate court is authorized and it shall be the court's duty to enter a judgment surcharging the personal representative in such amount as is authorized under the law and the evidence.
All parties in interest shall be bound by the order of the probate court on the intermediate report; and thereafter no such person shall be heard in any court, except upon appeal, to contest or question any matters or things covered by the report and the order on the report in the absence of fraud, accident, or mistake.
Costs shall be taxed against the estate or the parties as the probate court shall deem fair and reasonable.
(a) Unless otherwise expressly provided in the will, a personal representative shall be authorized to make those investments that are listed in Code Sections 53-8-2 and 53-8-3.
(b) In making any other investments and in acquiring and retaining those investments and managing the property of the estate, the personal representative shall exercise the judgment and care, under the circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.
(c) Within the limitations of the standard provided in subsection (b) of this Code section and considering individual investments as a part of an overall administrative strategy, a personal representative is authorized to acquire and retain every kind of property whether real, personal, or mixed, and every kind of investment, specifically including, but not by way of limitation, bonds, debentures, and other corporate obligations and stocks, preferred or common, which persons of prudence, discretion, and intelligence acquire or retain for their own account; and within the limitations of such standard, a personal representative may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase.
(d) Nothing contained in this Code section shall be construed as restricting the power of a court of proper jurisdiction to permit a fiduciary to deviate from the terms of any will, agreement, or other disposition relating to the acquisition, investment, reinvestment, exchange, retention, sale, or management of fiduciary property.
(e) A personal representative that is a bank or trust company shall not be precluded from acquiring and retaining securities of or other interests in an investment company or investment trust because the bank or trust company or an affiliate provides services to the investment company or investment trust as investment adviser, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and receives compensation for such services.
A personal representative is authorized to invest estate funds in real property after first obtaining an order to that effect from the probate court or from the superior court. Service shall be made as provided in Chapter 11 of this title to the heirs of an intestate estate or the beneficiaries of a will. The court shall be authorized to grant the order immediately if the heirs or beneficiaries acknowledge service and consent to the petition or at any time after ten days after perfection of service.
A personal representative is authorized to invest estate funds in:
(1) Bonds issued by any county or municipality of this state which have been validated as required by law for the validation of county and municipal bonds;
(2) Bonds issued by any county board of education under Subpart 1 of Part 3 of Article 9 of Chapter 2 of Title 20 for the purpose of building and equipping schoolhouses, which bonds have been validated and confirmed as required under Part 1 of Article 2 of Chapter 82 of Title 36;
(3) Bonds and other securities issued by this state or by the Board of Regents of the University System of Georgia;
(4) Bonds or other obligations issued by the United States government and bonds of any corporation created by an act of Congress, the bonds of which are guaranteed by the United States government as provided in Code Section 53-8-4; and
(5) Interest-bearing deposits in any chartered state or national bank or trust company or savings and loan association located in this state to the extent the deposits are insured by the Federal Deposit Insurance Corporation or comparable insurance.
(a) Whenever by law or by an instrument or court order establishing a fiduciary relationship the personal representative is authorized, permitted, required, or directed to invest funds in direct and general obligations of the United States government, obligations unconditionally guaranteed by the United States government, or obligations of the agencies of the United States government enumerated in Code Section 53-8-3, the personal representative may invest in and hold such obligations either directly or in the form of securities or other interests in any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, 1 as now or hereafter amended, so long as:
(1) The portfolio of such investment company or investment trust is limited to such obligations and repurchase agreements fully collateralized by such obligations;
(2) Such investment company or investment trust takes delivery of such collateral either directly or through an authorized custodian; and
(3) Such investment company or investment trust is operated so as to provide a constant net asset value or price per share.
(b) Nothing contained in this Code section shall be construed as relieving any personal representative from any duty or liability a personal representative has under the standard of prudence set forth in Code Section 53-8-1.
(c) The authority granted in this Code section shall be applicable notwithstanding that a corporate fiduciary or an affiliate of the corporate fiduciary provides services to the investment company or investment trust as investment adviser, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and receives compensation for such services.
1 15 U.S.C.A. § 80a-1 et seq.
(a) Unless otherwise provided in the will, a personal representative is authorized to retain the property received by the personal representative on the creation of the estate, including, in the case of a corporate fiduciary, stock or other securities of its own issue, even though the property may not otherwise be a legal investment and a personal representative shall not be liable for such retention, except for gross neglect. In the case of corporate securities, a personal representative may likewise retain the securities into which the securities originally received are converted or which are derived therefrom as a result of merger, consolidation, stock dividends, splits, liquidations, and similar procedures; and a personal representative may exercise by purchase or otherwise any rights, warrants, or conversion features attaching to any such securities. This Code section applies to all property held by a personal representative on March 28, 1961, under estates previously created, except that it shall not relieve a personal representative from liability for loss which had already accrued on or before March 28, 1961.
(b) In the case of a corporate fiduciary, the authority granted in subsection (a) of this Code section shall apply to the exchange or conversion of stock or securities of the corporate fiduciary's own issue, whether or not any new stock or securities received in exchange therefor are substantially equivalent to those originally held; and such authority shall also apply to the continued retention of all new stock and securities resulting from merger, consolidation, stock dividends, splits, liquidations, and similar procedures and received by virtue of such conversion or exchange of stock or securities of the corporate fiduciary's own issue, whether or not the stock or securities are substantially equivalent to those originally received by the fiduciary. The authority granted in subsection (a) of this Code section shall have reference, inter alia, to the exchange and continued retention of such stock or securities for stock or securities of any holding company which owns stock or other interests in one or more other corporations including the corporate fiduciary, whether the holding company is newly formed or already existing and whether or not any of the corporations owns assets identical or similar to the assets of or carries on businesses identical or similar to the corporation the stock or securities of which were previously received by the fiduciary; and any such authority shall apply regardless of whether any of the corporations has officers, directors, employees, agents, or trustees in common with the corporation the stock or securities of which were previously received by the fiduciary.
(a) Subject to the provisions of this article, a personal representative may sell, rent, lease, exchange, or otherwise dispose of property, whether personal, real, or mixed, for the purpose of payment of debts, for distribution of the estate, or for any other purpose that is in the best interest of the estate; provided, however, that nothing in this article shall be construed to limit, enlarge, or change any authority, power, restriction, or privilege specifically provided by will or incorporated into a will or otherwise granted to the personal representative in accordance with the provisions of subsection (b) of Code Section 53-7-1.
(b) A temporary administrator is authorized to petition the probate court for leave to sell or otherwise deal with property of the estate following the procedures described in this article, provided that good cause is shown.
Perishable property, property that is liable to deteriorate from keeping, or property that is expensive to keep shall be sold as early as practicable and in such manner as the probate court shall determine to be in the best interest of the estate, after such service of notice and opportunity for hearing, if any, as the probate court shall deem practicable under the circumstances.
Stocks or bonds, either listed or admitted to unlisted trading privileges upon any stock exchange or quoted regularly in any newspaper having a general circulation in Georgia, may be sold at private sale without order from or report to the probate court at a sales price not less than the stock exchange bid price or the published bid price at the time of sale. Reasonable brokerage commissions, not in excess of those customarily charged by stock exchange members, may be paid.
(a) A personal representative desiring to sell, rent, lease, exchange, or otherwise dispose of property other than property that is perishable, liable to deteriorate, or expensive to keep or listed stocks and bonds shall file a petition with the probate court stating the property involved and the interests in such property; the specific purpose of the transaction; the proposed price, if any; and all other terms or conditions proposed for the transaction and listing the names, addresses, and ages or majority status of all heirs of an intestate estate or of all beneficiaries of a testate estate. In the event full particulars are lacking, the petition shall state the reasons for any such omission.
(b) Upon the filing of the petition by the personal representative, the court shall issue a citation and serve notice on the heirs of an intestate estate or the affected beneficiaries of a testate estate in accordance with the provisions of Chapter 11 of this title.
(c) If no written objection by a person so served with notice is filed within the appropriate period of time following the service of such notice, as provided by Chapter 11 of this title, the probate court shall order such sale summarily in the manner and terms petitioned. If timely written objection is filed, the court shall hear the matter and grant or deny the petition for sale or make such other order as is in the best interest of the estate, which may require the sale to be private or at public outcry including confirmation of the sale by the court or otherwise. An appeal shall lie to the superior court in the manner, under the restrictions, and with the effect provided for appeals from the probate court in other cases.
(d) A personal representative shall make a full return to the probate court of every sale, specifying the property sold, the purchasers, the amounts received, and the terms of the sale.
(e) The recital in the personal representative's deed of compliance with the provisions of this Code section shall be prima-facie evidence of the facts recited.
(f) Where a personal representative sells real property under the provisions of this Code section, liens on such real property may be divested and transferred to the proceeds of the sale as a condition of the sale.
(a) Regardless of whether a personal representative has the powers provided by paragraph (1) of subsection (b) of Code Section 53-12-261 or by the corresponding provision of any statute incorporated pursuant to subsection (d) of Code Section 53-12-263 or otherwise has similar such powers, and regardless of whether such powers are granted by a probate court or are enumerated in or incorporated by reference into a will by a testator, a personal representative may not bind the estate by any warranty in any conveyance or contract.
(b) A personal representative shall not be bound personally by any warranty in any conveyance or contract, unless the intention to create a personal liability is distinctly expressed.
(a) The title to all property of an estate being in the personal representative for the payment of debts and other purposes of administration, title to property in the estate does not pass to the heirs or beneficiaries until the personal representative assents thereto in evidence of the distribution of the property to them, except as otherwise provided in Code Section 53-2-7.
(b) Such assent may be express or may be presumed from the conduct of the personal representative. Assent should be evidenced in writing as a deed of conveyance to real property, bill of sale conveying tangible personal property, or an assignment or transfer of interests in intangible personal property.
(c) In the absence of prior assent, the discharge of a personal representative shall be conclusive evidence of the personal representative's assent.
(d) At any time after the lapse of one year from the date of qualification of the personal representative, an heir or beneficiary who is entitled to the distribution of property from an estate may, personally or by a guardian or conservator:
(1) Cite the personal representative in the probate court to show cause why assent should not be given after service of notice in accordance with Chapter 11 of this title; and
(2) Subject to Code Section 23-1-4, compel such assent by an equitable proceeding.
(a) A domiciliary of this state who has been missing from the last known place of domicile for a continuous period of four years shall be presumed to have died; provided, however, that such presumption of death may be rebutted by proof. The date of death is presumed to be the end of the four-year period unless it is proved by a preponderance of the evidence that death occurred earlier.
(b) When any domiciliary of this state has been missing from the last known place of domicile for a continuous period of 12 months or more, the death of the individual may be proved by a preponderance of the evidence.
(c) Notwithstanding any proof of a date of death that is earlier than the end of the four-year period set out in subsection (a) of this Code section, the missing individual shall be deemed to have predeceased any other individual who has died prior to the date any petition for letters or other action on the missing individual's estate is filed and from whom the missing individual would have taken an interest in property as an heir or beneficiary or otherwise.
(d) When any domiciliary of this state has been exposed to a specific peril or tragedy resulting in probable death, the death of the individual may be proved by clear and convincing evidence at any time after such exposure.
(a) A petition for administration of the estate, for the probate in common form or solemn form of the will, for year's support, or for an order that no administration is necessary may be filed for the estate of a missing individual whose death may be presumed or established in the probate court as provided in Code Section 53-9-1. The petition may be made by anyone who would be entitled to file such petition on the estate of the missing individual if the missing individual were known to be dead and shall be filed in the county in which the estate of the missing individual would be administered were the missing individual known to be dead.
(b) In addition to complying with all of the requirements for petitions pertaining to the administration of an estate or the probate of a will or year's support or an order that no administration is necessary, as appropriate, the petition regarding the estate of a missing individual who is believed to be dead shall set forth the circumstances under which the individual disappeared, what inquiry has been made as to the individual's whereabouts, and such evidence as shall be offered, if necessary, for the purpose of proving death by a preponderance of the evidence.
(c) If the court finds the petition to be in compliance with the requirements set forth in subsection (b) of this Code section, the court shall issue an order directing that a citation issue and be published once a week for four weeks in the official newspaper of the county in which the petition is made giving notice that on a date certain, which shall be at least 90 days after the first publication of such citation, evidence will be heard by the court concerning the alleged absence of the individual presumed to be dead and the circumstances and duration of such absence and requiring the missing individual, if alive, or any other person to produce and present to the court evidence that the missing individual is still in life. The publication of citation required by this subsection may be combined with any other service of notice required for the issuance of letters testamentary or letters of administration, an order for year's support, or an order that no administration is necessary or directed by the court pursuant to Code Section 53-11-5. Such service of notice shall be made as provided in Chapter 11 of this title on all individuals who would be heirs if the missing individual were known to be dead. The order may also direct that the petitioner make a search for the missing individual and shall specify the manner in which the search is to be conducted to ensure that, in light of the circumstances of the particular case, a diligent and reasonable effort has been made to locate the missing individual. The order may prescribe any methods of search deemed by the judge to be adequate and appropriate, including but not limited to publishing notices in newspapers in appropriate locations and making inquiry of governmental agencies and of the missing individual's relatives and friends and at the missing individual's last place of abode or other appropriate places.
At the hearing the probate court shall hear such evidence as shall be offered for the purpose of ascertaining whether a diligent and reasonable effort has been made to locate the missing individual and, if appropriate, such evidence that is offered to show that the missing individual is dead or alive. No person shall be disqualified from testifying by reason of being the spouse of the missing individual or having an interest in the estate of the missing individual. If the court finds that a diligent and reasonable effort has been made to locate the missing individual and that a presumption of death has been established and has not been rebutted as provided under subsection (a) of Code Section 53-9-1 or that death has been proved by a preponderance of the evidence as provided in subsection (b) of Code Section 53-9-1, the court shall enter an order finding that the missing individual is dead and specifying the date of death.
At any time after the entering of the order finding the missing individual to be dead, the probate court shall issue letters of administration or letters testamentary or an order granting year's support or an order that no administration is necessary in conformity with all of the requirements of the appropriate laws of this state on the estate of the missing individual and such letters or order, unless revoked, and all acts done in pursuance thereof and in reliance on such letters or order shall be as valid as if the missing individual were known to be dead.
Upon petition of the missing individual, the probate court shall revoke the letters of administration or letters testamentary at any time on due and satisfactory proof that the missing individual is in fact alive. After such revocation, all the powers of the personal representative shall cease, but all receipts or disbursements of assets or other acts previously done by the personal representative shall remain valid, and the personal representative shall settle and account for the administration to the time of such revocation and shall transfer all assets remaining to the missing individual or such individual's duly authorized agent or attorney.
At any time before the expiration of two years after letters or an order for year's support or an order that no administration is necessary is issued regarding the estate of the missing individual, any property received by any spouse or child or other purported heir or beneficiary of the missing individual may be recovered by the missing individual unless the property has been transferred for an adequate consideration to a bona fide purchaser, in which case the amount of the consideration received for such transfer may be recovered from the transferor. No action to recover any property from any spouse, child, or other purported heir or beneficiary or to recover any consideration received by such a person as a result of a transfer of property to a bona fide purchaser may be brought by a missing individual after the expiration of the two-year period set out in this Code section unless the missing individual is a minor, in which case the time for bringing such actions shall be extended to two years from the date the missing individual reaches the age of majority.
Before a distribution of any of the assets of the estate of a missing person is made to a spouse, child, or other purported heir or beneficiary within the two-year period set out in Code Section 53-9-6, such spouse, child, or other purported heir or beneficiary shall give security, to be approved by the probate court in such sum as the court shall direct but in no case less than the estimated value of the money or property distributed, conditioned that if the missing individual is in fact alive, the person giving security will deliver to the missing individual, on demand by such individual at any time within the two-year period, the assets received by the person giving such security or, if such assets have been transferred to a bona fide purchaser, the consideration received in such transfer, without interest. If any person entitled to receive such assets is unable to give security, the personal representative shall continue to hold such assets until:
(1) Security is given;
(2) The court orders the personal representative to deliver the assets to the person; or
(3) The two-year period has expired,
whichever occurs first, and in the meantime shall invest the assets in any investment that is authorized by law for personal representatives or that is authorized in the duly probated will of the missing individual and shall pay the income from such investments to the person or persons entitled to such assets quarterly or as otherwise directed by the court.
(a) The judges of the probate court, in their discretion, shall also be the depositories for and custodians of all moneys of any heir or beneficiary of any estate who cannot be located by the personal representative for moneys that may be distributed to the heir or beneficiary. Any personal representative shall be authorized to pay over to the judge any such moneys; and the judge shall be authorized to take charge thereof as provided for in this Code section.
(b) The judge shall turn over to the Department of Revenue all custodial property held pursuant to this Code section 15 years after receipt by the judge of such property.
(a) For purposes of this article, an individual is deemed to be missing if:
(1) That individual is missing from the usual place of domicile and that individual's whereabouts are unknown to those persons who are likely to know;
(2) That individual was serving with the armed forces of the United States during any period in which a state of hostilities existed between the United States and any nation or power and the individual has been listed as missing in action, as interned in a neutral country, or as having been captured by the enemy; or
(3) That individual, whose whereabouts may or may not be known, has been kidnapped or is being held hostage or otherwise detained and is thus unable to exercise control over the management of that individual's estate.
(b) When a domiciliary of this state has been missing for a period of 60 days or more, or for a shorter period of time but in emergency circumstances that dictate the need for the immediate conservation of the domiciliary's estate, any person having an interest in the estate of the missing individual by reason of being an individual who would be an heir of the missing individual if the missing individual were dead, a creditor of the missing individual, or a person having legal custody of minors or incompetents who would be heirs of the missing individual may petition the probate court of the county in which the missing individual was domiciled for the appointment of a conservator of the estate of the missing individual.
(a) In determining whether to appoint a conservator of the estate of a missing individual, the probate court shall take into account any other existing arrangements for the management of the missing individual's property, such as powers of attorney or trusts, and may determine that no conservator need be appointed if such arrangements are sufficient under the circumstances.
(b) The probate court shall select as conservator of the estate of the missing individual that person who will best serve the interests of the estate, considering the following order of preferences:
(1) The surviving spouse, unless an action for divorce or separate maintenance was pending between the missing individual and the spouse at the time of the disappearance;
(2) One or more other heirs of the missing individual;
(3) Any eligible corporation, partnership, or other business association; or
(4) Any creditor of the estate.
In no event shall the court appoint as conservator a person who would not be eligible to serve as administrator of the estate of the missing individual if that individual were dead.
The petition shall set forth the name of the missing individual, that individual's place of domicile, the circumstances under which that individual came to be missing, the length of time the individual has been missing, what inquiry has been made as to the whereabouts of the individual, the fact that the missing individual would probably have communicated with the petitioner or some other person of whom inquiry has been made, the names, addresses, and ages or majority status of those individuals who would be heirs if the missing individual were dead, a description of the property owned by the missing individual and the estimated value of the estate, the circumstances that dictate the need for the appointment of a conservator, and whether any other arrangements, such as powers of attorney or trusts, exist for the management of the missing individual's estate.
(a) Upon the filing of the petition, the procedure shall be the same as in petitions for the administration on the estates of decedents, with the individuals who would be the heirs of the missing individual if the missing individual were dead being treated as the heirs of the missing individual.
(b) The laws applicable to the administration of estates shall apply to the conservators of missing individuals except insofar as such laws may conflict with this article.
(c) Upon appointment, the conservator shall subscribe an oath as in the case of an administrator and shall give such bond as is required by law of guardians.
The conservator shall within 60 days after appointment make a written report to the probate court setting forth the condition of the estate of the missing individual, together with a schedule of any debts that may be owed by the missing person, an estimate of the income from the estate and the expenses necessary to its preservation, a statement showing the names, ages, and condition of any individuals who may have been dependent on the missing person for support, and a recommendation as to how the estate should be distributed. The court, after considering the report and making any further investigation the court may deem necessary, shall make such order as will most effectively tend to provide for the support of any individuals who may have been dependent upon the missing individual for support and for the handling of the property, including any business or business interest, owned by the missing person. The order may provide for the payment of those debts of the missing person as the court deems just and proper. An order of an appropriate court may allow the conservator to engage in such estate planning dispositions of the missing person's property as are authorized by Code Sections 29-3-36 and 29-5-36. The order may be modified in the discretion of the court at any time upon petition by the conservator, any individual dependent upon the missing individual for support, the guardian of any such individual, or any person having an interest in the property or in any business of the missing individual.
A missing person for whose estate a conservator has been appointed may at any time petition the probate court that has jurisdiction over the conservator for an order terminating the conservatorship. Upon a finding by the court that the petitioner is in fact the missing individual, the court shall enter an order terminating the conservatorship and directing the conservator to make a final return to the court and to pay over and deliver all funds and property in the conservator's hands to the missing individual.
If the missing individual is declared legally dead and the missing individual's will is probated or administration is had upon the individual's estate, the conservator shall, within 60 days after demand by the personal representative of the missing individual's estate, make a final return to the probate court which has jurisdiction over the conservator and pay over and deliver all of the funds or property in the conservator's hands to such personal representative.
If an individual who is domiciled outside this state and possessed of any interest in or claim to or against real or personal property or cause of action located in this state shall have been absent for a period of time under circumstances whereby, pursuant to the law of the place in which the individual is domiciled, the individual is presumed to be dead, and a court of competent jurisdiction in the place of domicile has entered a final order or decree that the individual is presumed to be dead, the provisions of this title shall apply in every respect as if the individual in fact had died. If the individual shall have been absent for a period of not less than four years and shall not have been declared dead in the domiciliary jurisdiction, the individual may be declared dead in this state pursuant to the provisions of Article 1 of this chapter, as if a domiciliary of this state, for purposes of the property interests or claims or causes of action located in this state.
If an individual domiciled outside this state is possessed of any interest in or claim to or against any real or personal property or cause of action located in this state and would, if a domiciliary, be deemed to be missing in accordance with the provisions of Code Section 53-9-10 or if a conservator or any person serving in a similar capacity shall have been authorized to handle the property of the individual in the jurisdiction in which the individual is domiciled, the probate court may appoint a conservator of all of the interests or claims or causes of action located in this state and give direction as to the conservation of the property and its use in the interest of the missing individual or that individual's dependents, obligees, or successors in interest. The court shall mold such order in aid of any similar orders from the jurisdiction in which the individual is domiciled, may appoint the domiciliary conservator as the conservator in this state, and may authorize delivery of property to the domiciliary conservator. Except as the court may otherwise direct, the proceedings shall conform to the provisions of Article 2 of this chapter.
This chapter may be cited as the “Uniform Simultaneous Death Act in Georgia.”
When the title to property or the devolution of property depends upon priority of death and there is no sufficient evidence that the individuals have died other than simultaneously, the property of each individual shall be disposed of as if that individual had survived, except as provided otherwise in this chapter.
If property is so disposed of that the right of a beneficiary to succeed to any interest in such property is conditional upon surviving another individual and both individuals die and there is no sufficient evidence that the two have died other than simultaneously, the beneficiary shall be deemed not to have survived. If there is no sufficient evidence that two or more beneficiaries have died otherwise than simultaneously and property has been disposed of in such a way that at the time of their deaths each beneficiary would have been entitled to the property if that beneficiary had survived the others, the property shall be divided into as many equal portions as there were such beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each such beneficiary survived.
If any stocks, bonds, bank deposits, or other intangible property shall be owned so that one of two joint owners is entitled to the whole on the death of the other and both owners die and there is no sufficient evidence that the two joint owners have died otherwise than simultaneously, these assets shall be distributed one-half as if one joint owner had survived and one-half as if the other joint owner had survived. If there are more than two joint owners and there is no sufficient evidence that all have died other than simultaneously, these assets shall be divided into as many equal shares as there are joint owners and these portions shall be distributed respectively to those who would have taken in the event that each joint owner had survived.
This chapter shall not apply in the case of wills, trusts, deeds, contracts of insurance, or any other situation where provision is made for distribution of property different from that provided in this chapter or where provision is made for a presumption as to survivorship that results in a distribution of property different from that provided in this chapter.
This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.
Except as otherwise specifically provided, the provisions of this chapter shall apply to any proceeding in the probate court that arises under Chapters 1 through 10, 12, and 13 of this title. Compliance with the provisions of this chapter shall be deemed to be sufficient for proceedings in the probate court arising under Chapters 1 through 10, 12, and 13 of this title except as otherwise provided in those chapters and in Chapter 11 of Title 9 and Chapter 9 of Title 15.
(a) As used in this Code section, the term “guardian” means the guardian ad litem appointed by the probate court who may represent a single party or more than one party or a class of parties with common or nonadverse interests, including the estates of one or more deceased heirs that have no personal representative; provided, however, that the court may determine for the purpose of the particular proceeding that the natural guardian, if any, or the testamentary guardian, if any, or the duly constituted conservator of the property, if any, or the duly constituted guardian of the person, if any, has no conflict of interest and thus may represent for the purpose of the proceeding a party who is not sui juris, who is unborn, or who is unknown.
(b) When a party to a proceeding in the probate court is not sui juris, is unborn, or is unknown, such party shall be represented in the proceeding by a guardian. When a party to a proceeding in the probate court is a deceased heir whose estate has no personal representative, such deceased heir's estate may be represented in the proceeding by a guardian. Service upon or notice to a guardian shall constitute service upon or notice to the party represented, and except as provided in subsection (a) of Code Section 15-9-17, no additional service upon or notice to such party shall be required. Waivers, acknowledgments, consents, answers, objections, or other documents executed by the guardian shall, except as otherwise provided in Code Section 15-9-17, be binding upon the party represented.
(c) Whenever a guardian ad litem is appointed, the court may limit the appointment or may at any time for cause appoint a successor. Unless the appointment is limited by the court, the guardian ad litem first appointed with respect to any proceeding involving the administration of the estate shall continue to serve with respect to such proceeding on behalf of the party represented until a successor is appointed, the party represented becomes sui juris, or the court terminates the appointment.
(d)(1) In every petition filed in the probate court, the petitioner shall specify the name of each party who requires a guardian and the name and address of any person who is acting as guardian of the party. A copy of the letters appointing the guardian shall be attached to the petition or the petition shall allege such facts as shall show the authority of such guardian to act.
(2) The authority of a guardian to act may be established under paragraph (1) of this subsection by showing:
(A) Compliance by a foreign guardian of a minor with the filing requirements of subsection (b) of Code Section 29-2-74 or of Code Section 29-2-76;
(B) Compliance by a foreign conservator of the property of a minor with the filing requirements of subsection (b) of Code Section 29-3-115 or of Code Section 29-3-117;
(C) Compliance by a foreign guardian of an adult with the filing requirements of subsection (b) of Code Section 29-4-95 or of Code Section 29-4-97;
(D) Compliance by a foreign conservator of the property of an adult with the filing requirements of subsection (b) of Code Section 29-5-135 or of Code Section 29-5-137; or
(E) The registration and recording of a guardianship order or conservatorship order from another state under Article 4 of Chapter 11 of Title 29.
(3) Notwithstanding the provisions of paragraphs (1) and (2) of this subsection, the probate court may take judicial notice of the issuance of the letters appointing such conservator or guardian, and of the authority of such conservator or guardian to act, in the manner provided by Chapter 2 of Title 24.
(a) Except as otherwise prescribed by law or directed by the probate judge, a party in interest who is a resident of this state is entitled to personal service of any petition and citation for proceedings that are subject to the provisions of this chapter.
(b) Except as otherwise provided in this Code section, personal service shall be made by delivery of a copy of the petition and citation by the sheriff or some other lawful officer at least 30 days before the hearing except that, if waived in writing or if shortened by the probate court upon good cause shown, the 30 day provision shall not apply. An entry of such service shall be made on the original and the copy for the party served.
(c) A party who is in the military service may be served by any commissioned officer who shall file with the probate court a certificate stating that copies of the petition and citation were served in person.
(d) Individuals who are not sui juris shall be served as provided in this chapter or as provided in Code Section 15-9-17.
(e) When personal service is required by this Code section, unless otherwise directed by the probate court, service may be made by registered or certified mail or statutory overnight delivery if the petitioner so requests in the petition. The court shall cause a copy of the petition and the citation to be sent by registered or certified mail or statutory overnight delivery with return receipt requested and with delivery restricted to addressee only. If the return receipt is not signed by the addressee, dated at least 30 days before the date specified in the citation, except where shortened by the court upon good cause shown, and received by the court before the date specified in the citation for the filing of objections, service shall be made as otherwise required by this Code section.
(a) Except as otherwise prescribed by law or directed by the probate judge pursuant to Code Section 53-11-5, the provisions of this Code section shall apply in cases when a person to be served with notice of a proceeding covered by this chapter has a known current residence address outside this state, or whose current residence address is unknown.
(b) Unless all such persons have known current residence addresses, the probate court shall order service of notice to be perfected by publication of the citation in the newspaper in which sheriff's advertisements are published in the county in which the petition is made. The citation shall be published once a week for four weeks prior to the date on which objections must be filed. The records of the court shall show the persons served with notice and the character of such service of notice. The published citation shall be directed to the person to be served with such notice.
(c) If the current residence address of such a person is known, the court shall cause service of notice to be made by mailing by certified or registered mail or statutory overnight delivery, return receipt requested, a copy of the petition and the citation.
(d) When service of notice by publication is ordered by the court pursuant to this Code section, compliance with the provisions of this Code section relating to a person to be served with notice who is known but whose current residence address is unknown shall be equivalent to personal service of a copy of the petition and citation when the fact appears in the records of the court showing the persons served with notice and the character of such service of notice. In the case of a known person whose current residence address is unknown, that person's name shall appear in the records of the court, and such records shall confirm compliance with this Code section as to that person. In any case in which service of notice by publication is granted by the court, one order for service of notice by publication shall be sufficient and the published citation shall be directed as provided in subsection (b) of this Code section.
On the motion of any party in interest or on its own motion, the probate court may direct any additional service of citation or other notice or extend the time to respond with respect to any proceedings covered by this chapter as the judge may determine to be proper in the interests of due process and reasonable opportunity for any party or interest to be heard.
(a) Service of citation or other notice may be waived or acknowledged before or after the filing of the petition. The waiver or acknowledgment shall be in a writing signed by the person to be served with notice or some person authorized by the person to be served with such notice, shall be sworn to or affirmed before the probate court or a notary public, and shall be filed with the probate court.
(b) Except as otherwise prescribed by law, the written consent of a party to the granting of any relief or the entry of any order sought in a proceeding covered by this chapter, whether executed before or after the filing of the petition, shall constitute a waiver and acknowledgment of service of notice of the proceedings, waiver of any other or further citation or service of notice, entry of appearance, answer admitting all allegations of fact set forth in the petition as true and correct, and consent to the granting of the relief or the order sought.
(c) A person in military service, regardless of age, shall be permitted to make any waiver, acknowledgment, or consent described in this Code section.
An oath or affirmation or affidavit required or allowed to be made before or attested by a notary public may be made before any notary public or other officer authorized to administer oaths by the state in which the oath or affirmation or affidavit is made. The oath or affirmation or affidavit, if made outside this state, shall have the same force and effect as if it had been made before an officer of this state authorized to administer oaths. The official attestation of the officer before whom the oath or affirmation or affidavit is made shall be prima-facie evidence of the official character of the officer and that the officer was authorized by law to administer oaths.
Every petition filed in the probate court shall be verified by the oath of the petitioner and shall be sworn to or affirmed before the probate court or a notary public.
(a) Upon the filing of a petition, a citation shall be issued by the court and addressed to the persons required to be served with notice or who otherwise are to be served with notice; provided, however, that if all such persons have acknowledged service of notice and assented to the petition, no such citation need issue. Such citation shall state that any objection must be made in writing and shall designate the date on or before which objections must be filed in the probate court. Such citation also shall state whether the hearing will take place on a certain date or be specially scheduled for a later date. With respect to all proceedings under this title, any such citation may state that if no objections are filed the petition may be granted without a hearing.
(b) For purposes of this chapter, the words “citation” and “notice” shall have the same meaning unless the context otherwise requires.
(c) Wherever appearing in this title with respect to proceedings in the probate court covered by this chapter:
(1) The terms “service of notice,” “given notice,” “due notice,” “notified,” and similar words and phrases of the same import shall mean service of petition and citation in a manner provided by applicable law, and shall include acknowledgment or waiver of such service and such service upon a guardian ad litem or other appropriate representative, unless the context otherwise requires;
(2) The terms “the official county newspaper,” “the newspaper in which sheriff's advertisements are published,” “the official newspaper of the county in which the petition is made,” “the official newspaper of the county in which the personal representative qualified,” and similar words and phrases of the same import shall mean the journal or newspaper qualified or designated as the official legal organ of the county of the probate court having jurisdiction in such proceeding pursuant to Code Section 9-13-142;
(3) The terms “published,” “publication,” “service by publication,” “notice shall be published,” and similar words and phrases of the same import shall mean publication in the official legal organ described in paragraph (2) of this subsection unless the context otherwise requires;
(4) The term “beneficiary” shall include devisee and legatee unless the context otherwise requires;
(5) Any hearing called for in any proceeding shall be within the court's sound discretion and shall not be required if no caveat or objection is timely filed and thereafter maintained unless the context otherwise requires; and
(6) Any requirement that no caveat or objection be filed:
(A) Shall be satisfied by the dismissal or withdrawal of all caveats or objections so filed unless the context otherwise requires; and
(B) May, in the court's sound discretion, be satisfied by the failure of any party served with notice to file a caveat or objection in a timely manner unless the context otherwise requires.
(a) Except as otherwise prescribed by law or as shortened by the judge upon good cause shown or directed by the judge pursuant to Code Section 53-11-5 with respect to any particular proceeding, the date on or before which any person is required to file any objection shall be not fewer than 30 days after the date such person is personally served with notice. For a person within the continental United States who is served with notice by registered or certified mail or statutory overnight delivery, return receipt requested, the date on or before which any objection is required to be filed by such person shall not be fewer than 30 days from the date of mailing of such service of notice; provided, however, that if a return receipt from any recipient is received by the court within 30 days from such date of mailing of such service of notice, the date on or before which any objection is required to be filed by such recipient shall be 30 days from the date of receipt of such service of notice shown on such return receipt. For a person outside the continental United States who is served with notice by registered or certified mail or statutory overnight delivery, return receipt requested, the date on or before which any objection is required to be filed by such person shall not be fewer than 30 days from the date the service of the citation is mailed by the court; provided, however, that if the return receipt from any such recipient is received by the court during such 30 day period the date on or before which any objection is required to be filed by such recipient shall not be earlier than 30 days from the date of such recipient's receipt of such service of notice shown on such return receipt. For a person served with notice by publication, the date on or before which any objection is required to be filed shall be no earlier than the first day of the week following such service by publication of citation once each week for four weeks.
(b) Except as otherwise prescribed by law or directed by the judge with respect to any particular proceeding, the date on which any required hearing shall be held shall be the date by which any objection is required to be filed or such later date as the probate court may specify. When the matter is set for hearing on a date that was not specified in the citation, the probate court shall serve by first-class mail a notice of the date, time, and place of the hearing to the petitioner and all parties who have filed responses to the petition at the addresses given by them in their pleadings.
Whenever it is required that a document to be filed in the probate court be authenticated or exemplified, such requirement shall be met by complying with the provisions of Code Section 24-9-922 and such full faith and credit shall be given to the document as is provided in that Code section.
(a) This chapter shall be known and may be cited as “The Revised Georgia Trust Code of 2010.”
(b) Except to the extent it would impair vested rights and except as otherwise provided by law, the provisions contained in this chapter shall apply to any trust regardless of the date such trust was created.
As used in this chapter, the term:
(1) “Ascertainable standard” means a standard relating to an individual's health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the federal Internal Revenue Code of 1986.
(2) “Beneficiary” means a person for whose benefit property is held in trust, regardless of the nature of the interest, and includes any beneficiary, whether vested or contingent, born or unborn, ascertained or unascertained.
(3) “Express trust” means a trust as described in Code Section 53-12-20.
(4) “Foreign entity” means:
(A) Any financial institution whose deposits are federally insured which is organized or existing under the laws of any state of the United States, other than Georgia, or any subsidiary of such financial institution;
(B) Any other corporation organized or existing under the laws of any state of the United States, other than Georgia, and chartered or licensed under the laws of such state; and
(C) Any federally chartered financial institution whose deposits are federally insured having its principal place of business in any state of the United States, other than Georgia, or any subsidiary of such financial institution.
(5) “Implied trust” means a resulting trust as described in Code Section 53-12-130 or a constructive trust as described in Code Section 53-12-132.
(6) “Nonresident” means an individual who does not reside in Georgia.
(7) “Person” means an individual, corporation, partnership, association, joint-stock company, business trust, unincorporated organization, limited liability company, or other legal entity, including any of the foregoing acting as a fiduciary.
(8) “Private foundation” means a private foundation as defined in Section 509 of the federal Internal Revenue Code.
(9) “Property” means any type of property, whether real or personal, tangible or intangible, legal or equitable, and shall include digital assets and electronic communications, as such terms are defined in Code Section 53-13-2.
(10) “Qualified beneficiary” means a living individual or other existing person who, on the date of determination of beneficiary status:
(A) Is a distributee or permissible distributee of trust income or principal;
(B) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subparagraph (A) of this paragraph terminated on that date without causing the trust to terminate; or
(C) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
The Attorney General has the rights of a qualified beneficiary with respect to a charitable trust as defined in Code Section 53-12-170, and a person appointed to enforce a trust created for the care of an animal under Code Section 53-12-28 also has the rights of a qualified beneficiary.
(11) “Settlor” means the person who creates the trust, including a testator in the case of a testamentary trust.
(12) “Spendthrift provision” means a provision in a trust instrument that prohibits transfers of a beneficiary's interest in the income or principal or both.
(13) “Trust” means an express trust or an implied trust but shall not include trusts created by statute or the Constitution of Georgia.
(14) “Trust instrument” means the document, including any testamentary instrument, that contains the trust provisions.
(15) “Trust property” means property the legal title to which is held by the trustee. The term also includes choses in action, claims, and contract rights, including a contractual right to receive death benefits as the designated beneficiary under a policy of insurance, contract, employees' trust, or other arrangement.
(16) “Trustee” means the person or persons holding legal title to the property in trust.
Except to the extent that the principles of common law and equity governing trusts are modified by this chapter or another provision of law, those principles remain the law of this state.
(a) As to real property, the validity of a trust shall be determined by the law of the situs of the real property.
(b) As to all other property, the validity of a trust shall be determined by:
(1) The law of the jurisdiction designated in the trust instrument unless the effect of the designation is contrary to the public policy of the jurisdiction having the most significant relationship to the matter at issue; or
(2) In the absence of an effective designation in the trust instrument, the law of the jurisdiction having the most significant relationship to the matter at issue.
The meaning and effect of the trust provisions shall be determined by:
(1) The law of the jurisdiction designated in the trust instrument unless the effect of the designation is contrary to the public policy of the jurisdiction having the most significant relationship to the matter at issue; or
(2) In the absence of an effective designation in the trust instrument, the law of the jurisdiction having the most significant relationship to the matter at issue.
(a) Trusts are peculiarly subjects of equity jurisdiction. Suits by or against a trustee that sound at law may be filed in a court of law.
(b) Actions concerning the construction or administration of a trust or for a court to take any actions authorized by the provisions of this chapter shall be maintained in superior court, except as otherwise provided in Code Section 15-9-127.
(c) Any action by or against the trustee or to which the trustee is a party may be maintained in any court having jurisdiction over the parties and the subject matter, except as otherwise provided in subsection (b) of this Code section or in Code Section 15-9-127.
(a) The effect of the provisions of this chapter may be varied by the trust instrument except:
(1) As to any requirements relating to the creation and validity of express trusts as provided in Article 2 of this chapter;
(2) As to the effect of the rules relating to spendthrift trusts as provided in Article 5 of this chapter;
(3) As to the power of the beneficiaries to modify a trustee's compensation as provided in Code Section 53-12-210;
(4) As to the duty of a trustee to administer the trust and to exercise discretionary powers in good faith as provided in Code Sections 53-12-240 and 53-12-260;
(5) As to the effect of a provision relieving a trustee from liability as provided in Code Section 53-12-303;
(6) As to the periods of limitation on actions as provided in Code Sections 53-12-45 and 53-12-307; and
(7) As to the effect of the rules relating to trust directors as provided in Article 18 of this chapter.
(b) Nothing in a trust instrument shall prohibit or limit a court from taking any actions authorized by the provisions of this chapter.
(a) Notice to a person who may represent and bind another person under this Code section shall have the same effect as if notice were given directly to such other person.
(b) The consent of a person who may represent and bind another person under this Code section shall be binding on the person represented unless the person represented objects to such representation before such consent would otherwise have become effective. Consent shall include, but shall not be limited to, an action related to the granting of powers to a trustee, modification or termination of a trust, a trustee's duty to report, entry into a binding nonjudicial settlement agreement, a trustee's compensation, the conversion of a trust to a unitrust, the appointment, resignation, or removal of a trustee, and other similar actions.
(c) Except as otherwise provided in Code Section 53-12-61, a person who under this Code section may represent a settlor who lacks capacity may receive notice and give a binding consent on such settlor's behalf.
(d) A settlor may not represent and bind a beneficiary under this Code section with respect to the termination or modification of a trust under Article 4 of this chapter.
(e) To the extent there is no conflict of interest between the holder of a power of appointment and the persons represented with respect to the particular question or dispute, such holder may represent and bind persons whose interests are as permissible appointees, as takers in default, or are otherwise subject to the power.
(f) To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) A conservator may represent and bind the estate that the conservator controls;
(2) A guardian may represent and bind his or her ward if a conservator of such ward's estate has not been appointed;
(3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
(4) A trustee may represent and bind the beneficiaries of the trust;
(5) A trust director may represent and bind the beneficiaries of the trust on a question or dispute relating to the trust director's powers of direction;
(6) A person designated in the trust instrument to receive notice and provide consent on behalf of a beneficiary may represent and bind a beneficiary;
(7) A personal representative of a decedent's estate may represent and bind persons interested in such estate; and
(8) An ancestor may represent and bind an ancestor's minor or unborn descendant if a conservator or guardian for such descendant has not been appointed.
(g) Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to a particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with respect to such particular question or dispute.
(h) A person who on the date of determination would be eligible to receive distributions of income or principal from the trust upon the termination of the interests of all persons then currently eligible to receive distributions of income or principal may represent and bind contingent successor beneficiaries with respect to matters in which there is no conflict of interest between the representative and the persons represented with respect to a particular question or dispute.
(i) A charitable entity may represent and bind another person and be represented by a person under this Code section in the same manner as an individual.
(j) The representative of a person represented under this Code section may represent and bind any other person who could be represented under this Code section by the person being represented by the representative if the person being represented were living and sui juris, but only to the extent there is no conflict of interest between the representative and such other person or among those being represented with respect to a particular question or dispute.
(k) Any person whose interests would be affected may request that the court determine whether an interest is represented under this Code section or whether the representation is adequate. If the court determines that an interest is not represented under this Code section, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable. A representative may be appointed to represent several persons or interests. A representative may act on behalf of the individual represented with respect to any matter arising under this chapter, regardless of whether a judicial proceeding concerning the trust is pending. In making decisions, a representative may consider the general benefit accruing to the living members of the individual's family.
(l) The interests of unascertainable charitable beneficiaries of a trust that is not a charitable trust shall be represented as provided in Code Section 53-12-174 for the beneficiaries under a charitable trust.
(a) Except as provided in subsection (b) of this Code section, the trustee, any trust director, and all other persons whose interests would be affected may enter into a binding nonjudicial settlement agreement with respect to any matter involving the trust.
(b) A nonjudicial settlement agreement:
(1) Shall be valid only to the extent it does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the court under this Code section or other applicable law; and
(2) Shall not be valid with respect to any modification or termination of an irrevocable trust when the settlor's consent would be required in a proceeding to approve such modification or termination under subsection (b) of Code Section 53-12-61.
(c) The trustee, trust director, and any person whose interests would be affected by a nonjudicial settlement agreement may request that the court approve such agreement, determine whether the representation as provided in Code Section 53-12-8 was adequate, determine whether such agreement violates a material purpose of the trust, determine whether such agreement contains terms and conditions the court could have properly approved, or make any other similar determination.
(d) A nonjudicial settlement agreement entered into in accordance with this Code section shall be final and binding on all parties to such agreement, including individuals not sui juris, unborn beneficiaries, and persons unknown who are represented by a person who may represent and bind such parties under Code Section 53-12-8, as if ordered by a court with competent jurisdiction over the trust, the trust property, and the parties.
(e) Entering into or petitioning a court regarding a nonjudicial settlement agreement under this Code section shall not constitute a violation of a condition in terrorem under Code Section 53-12-22.
(a) Except as provided in subsection (d) of this Code section, an express trust shall be created or declared in writing and signed by the settlor or an agent for the settlor acting under a power of attorney containing express authorization.
(b) An express trust shall have, ascertainable with reasonable certainty:
(1) An intention by a settlor to create such trust;
(2) Trust property;
(3) Except for charitable trusts or a trust for care of an animal, a beneficiary who is reasonably ascertainable at the time of the creation of such trust or reasonably ascertainable within the period of the rule against perpetuities;
(4) A trustee; and
(5) Trustee duties specified in writing or provided by law.
(c) The requirement that a trust have a reasonably ascertainable beneficiary shall be satisfied if under the trust instrument the trustee or some other person has the power to select the beneficiaries based on a standard or in the discretion of the trustee or other person.
(d) In the case of a trust created pursuant to 42 U.S.C. Section 1396p(d)(4)(B) by an agent acting for the settlor, the power of attorney need not contain an express authorization to create or declare a trust.
(a) No formal words shall be necessary to create an express trust.
(b) Words otherwise precatory in nature will create a trust only if they are sufficiently imperative to show a settlor's intention to impose enforceable duties on a trustee and if all other elements of an express trust are present.
(a) A trust may be created for any lawful purpose.
(b) A condition in terrorem shall be void unless there is a direction in the trust instrument as to the disposition of the property if the condition in terrorem is violated, in which event the direction in the trust instrument shall be carried out, except as otherwise provided in subsection (c) of this Code section.
(c) A condition in terrorem shall not be enforceable against an individual for:
(1) Bringing an action for interpretation or enforcement of a trust instrument;
(2) Bringing an action for an accounting, for removal, or for other relief against a trustee; or
(3) Entering into a settlement agreement.
A person has capacity to create an inter vivos trust to the extent that such person has legal capacity to transfer title to property inter vivos. A person has capacity to create a testamentary trust to the extent that such person has legal capacity to devise or bequeath property by will.
No trust shall be invalid or terminated and no merger of title to trust property shall occur merely because the trustee or trustees are the same person or persons as the beneficiary or beneficiaries of the trust.
(a) 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.
(b) 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.
Property may be added to an existing trust from any source in any manner if the addition is not prohibited by the trust instrument and the property is acceptable to the trustee.
When the construction of an express trust is at issue, the court may hear parol evidence of the circumstances surrounding the settlor at the time of the execution of the trust and parol evidence to explain all ambiguities, both latent and patent.
(a) A trust may be created to provide for the care of an animal that is alive during the settlor's lifetime. The trust shall terminate upon the death of such animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.
(b) A trust authorized by this Code section may be enforced by a person appointed in the trust instrument or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.
(c) Upon termination of a trust authorized by this Code section, the trustee shall transfer any unexpended trust property in the following order:
(1) As directed in the trust instrument;
(2) If the trust was created in a nonresiduary clause in the settlor's will or in a codicil to the settlor's will, under the residuary clause in the settlor's will; and
(3) If no taker is produced by the application of paragraph (1) or (2) of this subsection, to the settlor, if living, and if not, to the settlor's heirs, as determined under Code Section 53-2-1.
(a) A settlor shall have no power to modify or revoke a trust in the absence of an express reservation of such power.
(b) A power to revoke shall be deemed to include a power to modify, and an unrestricted power to modify shall be deemed to include a power to revoke.
(c) Any revocation or modification of an express trust shall be in writing and signed by the settlor.
In exercising a power to modify the trust instrument, the settlor shall not enlarge the duties or liabilities of the trustee without the trustee's express consent.
A trustee shall not be liable for failing to act in accordance with the terms and conditions of an amendment or revocation of a trust of which the trustee had no notice.
(a) A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the trust instrument and the power.
(b) A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by the settlor's conservator only as provided in Code Section 29-5-23.
No trust shall be considered to be revocable merely because the life beneficiary has a reversion in or a power of appointment over assets of the trust or because the life beneficiary's heirs or estate have a remainder interest therein.
(a) Any judicial proceeding to contest the validity of a trust that was revocable immediately before the settlor's death shall be commenced within two years of the settlor's death.
(b) Upon the death of the settlor of a trust that was revocable immediately before the settlor's death, the trustee may proceed to distribute the trust property in accordance with the trust provisions. The trustee shall not be subject to liability for doing so unless:
(1) The trustee knows of a pending judicial proceeding contesting the validity of the trust; or
(2) A potential contestant has notified the trustee in writing of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent such notification.
(c) A beneficiary of a trust that is determined to have been invalid shall be liable to return any distribution received.
(a) If it is proved by clear and convincing evidence that the trust provisions were affected by a mistake of fact or law, whether in expression or inducement, the court may reform the trust provisions, even if unambiguous, to conform the provisions to the settlor's intention.
(b) A petition for reformation may be filed by the trustee, any trust director, or any beneficiary or, in the case of an unfunded testamentary trust, the personal representative of the settlor's estate.
(c) Notice of a petition for reformation of the trust shall be given to the trustee, any trust director, and all qualified beneficiaries.
(a) The trust instrument may confer upon a trustee or other person a power to modify or terminate the trust without court approval.
(b) 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.
(c) 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.
(d) 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:
(A) 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;
(B) Purpose of such trust has been fulfilled or become illegal or impossible to fulfill; or
(C) Continuance of such trust would impair the accomplishment of the purposes of such trust.
(e) 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.
(f) 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.
(g) 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.
(h) An order under subsection (d) of this Code section shall conform as nearly as practicable to the intention of the settlor.
(i) 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.”
(j) For purposes of this chapter, modification of a trust includes the consolidation or division of a trust.
(k) Subsections (b) and (c) of this Code section shall not apply to charitable trusts.
(l) 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.
(m)(1)(A) Unless the trustee:
(i) 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
(ii) 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.
(B) Unless a person to be given notice under subsection (f) of this Code section:
(i) 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;
(ii) 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
(iii) 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.
(2)(A) 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.
(B) 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.
(n) 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.
(a) As used in this Code section, the term:
(1) “Original trust” refers to the trust from which principal is being distributed.
(2) “Second trust” refers to the trust to which assets are being distributed from the original trust, whether a separate trust or an amended version of the original trust.
(b)(1) As used in this subsection, the term “current beneficiary” means a person who, on the date of distribution to the second trust, is a distributee or permissible distributee of trust income or principal.
(2) Unless the original trust instrument expressly provides otherwise, a trustee, other than a person who contributed property to the trust, with authority to invade the principal of the original trust to make distributions to or for the benefit of one or more of the beneficiaries may also, independently or with court approval, exercise such authority by distributing all or part of the principal of the original trust to a trustee of a second trust; provided, however, that the second trust shall not include as a:
(A) Current beneficiary any person that is not a current beneficiary of income or principal of the original trust; or
(B) Beneficiary any person that is not a beneficiary of the original trust.
(c) Except as provided in this Code section, a trustee may exercise the power to invade the principal of the original trust under subsection (b) of this Code section without the consent of the settlor or the beneficiaries of the original trust if such trustee provides written notice of such trustee's decision to exercise the power to such settlor, if living, any trust director, and those persons then entitled to annual reports from the trustee of the original trust under subsection (b) of Code Section 53-12-243, taking into account the provisions of the original trust and subsections (c) and (d) of Code Section 53-12-243. Such notice shall:
(1) Describe the manner in which such trustee intends to exercise such power;
(2) Specify the date such trustee proposes to distribute to the second trust; and
(3) Be delivered at least 30 days before the proposed distribution to the second trust.
(d) The exercise of the power to invade the principal of the original trust under subsection (b) of this Code section shall be by an instrument in writing, signed and acknowledged by the trustee, and filed with the records of the original trust.
(e) The exercise of the power to invade the principal of the original trust under subsection (b) of this Code section shall not extend the permissible period of the rule against perpetuities that applies to such original trust.
(f) The exercise of the power to invade the principal of the original trust under subsection (b) of this Code section by a trustee who is also a beneficiary shall be subject to the limitations of Code Section 53-12-270.
(g) This Code section shall not be construed to abridge the right of any trustee who has a power of invasion to distribute property in further trust that arises under any other law or under common law, and nothing in this Code section shall be construed to imply that the common law does not permit the exercise of a power to invade the principal of a trust in the manner authorized under subsection (b) of this Code section.
(h) A second trust may confer a power of appointment upon a beneficiary of the original trust to whom or for the benefit of whom the trustee has the power to distribute the principal of such original trust. For purposes of this subsection, the permissible appointees of the power of appointment conferred upon a beneficiary may include persons who are not beneficiaries of such original trust or second trust.
(i) If any contribution to the original trust qualified for the annual exclusion under Section 2503(b) of the federal Internal Revenue Code, as it existed on February 1, 2018, the marital deduction under Section 2056(a) or 2523(a) of the federal Internal Revenue Code, as it existed on February 1, 2018, or the charitable deduction under Section 170(a), 642(c), 2055(a), or 2522(a) of the federal Internal Revenue Code, as it existed on February 1, 2018, is a direct skip qualifying for treatment under Section 2642(c) of the federal Internal Revenue Code, as it existed on February 1, 2018, or qualified for any other specific tax benefit that would be lost by the existence of the authorized trustee's authority under subsection (b) of this Code section for income, gift, estate, or generation-skipping transfer tax purposes under the federal Internal Revenue Code, then the authorized trustee shall not have the power to distribute the principal of a trust pursuant to subsection (b) of this Code section in a manner that would prevent the contribution to the original trust from qualifying for such exclusion, deduction, or other tax benefit or would reduce such exclusion, deduction, or other tax benefit that was originally claimed with respect to such contribution.
(j) The exercise of the power to invade the principal of the original trust under subsection (b) of this Code section shall be subject to the following limitations:
(1) The second trust need not qualify as a grantor trust for federal income tax purposes, even if the original trust does qualify as a grantor trust, except that if such original trust qualifies as a grantor trust because of the application of Section 672(f)(2)(A) of the federal Internal Revenue Code, as it existed on February 1, 2018, such second trust may not include or omit a term that, if included in or omitted from the original trust instrument, would have prevented such original trust from qualifying under such section;
(2) Unless the settlor objects in a writing delivered to the trustee before the date the trustee proposes to distribute from the original trust to the second trust, such second trust may qualify as a grantor trust for federal income tax purposes, even if such original trust does not so qualify, except that if such original trust does not so qualify and such second trust will so qualify, in whole or in part, with respect to the settlor, such second trust shall grant such settlor or another person a power that would cause such second trust to cease to be a grantor trust for federal income tax purposes; and
(3) When both the original trust and the second trust qualify as grantor trusts for federal income tax purposes and such original trust grants the settlor or another person the power to cause such original trust to cease to be a grantor trust, such second trust shall grant an equivalent power to the settlor or another person unless such settlor objects in a writing delivered to the trustee before the date the trustee proposes to distribute from such original trust to such second trust.
(k) During any period when the original trust owns stock in a Subchapter “S” corporation as defined in Section 1361(a)(1) of the federal Internal Revenue Code, as it existed on February 1, 2018, an authorized trustee shall not exercise a power authorized by subsection (b) of this Code section to distribute part or all of the stock of the Subchapter “S” corporation to a second trust that is not a permitted shareholder under Section 1361(c)(2) of the federal Internal Revenue Code, as it existed on February 1, 2018.
(l) A trustee or other person that reasonably relies on the validity of a distribution of property of the original trust to the second trust under subsection (b) of this Code section or any other law or common law shall not be liable for any action or failure to act as a result of such reliance.
(m) This Code section shall not create or imply a duty for a trustee or trust director to exercise a power conferred by this Code section.
(n) If exercise of the power to invade the principal of the original trust would be effective under subsection (b) of this Code section except that the second trust in part does not comply with this Code section, such exercise of the power shall be effective, a provision in such second trust that is not permitted under this Code section shall be void to the extent necessary to comply with this Code section, and a provision required by this Code section to be in such second trust that is not contained in such second trust shall be deemed to be included in such second trust to the extent necessary to comply with this Code section.
(o) The settlor of the original trust shall be deemed to be the settlor of the second trust with respect to the portion of the principal of the original trust subject to the exercise of the power to invade the principal of such original trust under subsection (b) of this Code section.
(p) A debt, liability, or other obligation enforceable against property of the original trust shall be enforceable to the same extent against the property when held by the second trust after exercise of the power to invade the principal of such original trust under subsection (b) of this Code section.
(q) This Code section shall apply to any trust the meaning and effect of whose trust provisions are determined by the law of this state.
(r) This Code section shall not apply to charitable trusts.
(a) After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property either having a total value less than $100,000.00 or for which the trustee's annual fee for administering the trust is 5 percent or more of the market value of the principal assets of the trust as of the last day of the preceding trust accounting year may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration, provided that in the case of a cemetery trust, notice shall be given to the Attorney General. For purposes of this subsection, the term “cemetery trust” means a trust the sole purpose of which is to hold and invest property to be used for the maintenance and care of cemetery plots.
(b) The court may modify or terminate a trust or remove a trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration.
(c) Upon termination of a trust under this Code section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.
(d) This Code section shall not apply to an easement for conservation.
(e) This Code section shall not apply to trusts governed by Chapter 14 of Title 10.
(a) A spendthrift provision shall only be valid if it prohibits both voluntary and involuntary transfers.
(b) A term of a trust providing that the interest of a beneficiary is held subject to a spendthrift trust, or words of similar import, shall be sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest in the manner set forth in this article.
(c) A beneficiary shall not transfer an interest in a trust in violation of a valid spendthrift provision, and, except as otherwise provided in this Code section, a creditor or assignee of the beneficiary shall not reach the interest or a distribution by the trustee before its receipt by the beneficiary.
(d) A spendthrift provision shall not be valid as to the following claims against a beneficiary's right to a current distribution to the extent the distribution would be subject to garnishment under Article 1 of Chapter 4 of Title 18 if the distribution were disposable earnings:
(1) Alimony or child support;
(2) Taxes or other governmental claims;
(3) Tort judgments;
(4) Judgments or orders for restitution as a result of a criminal conviction of the beneficiary; or
(5) Judgments for necessaries.
The ability of a creditor or assignee to reach a beneficiary's interest under this subsection shall not apply to the extent that it would disqualify the trust as a special needs trust established pursuant to 42 U.S.C. Sections 1396p(d)(4)(A) or 1396p(d)(4)(C).
(e) A provision in a trust instrument that a beneficiary's interest shall terminate or become discretionary upon an attempt by the beneficiary to transfer it, an attempt by the beneficiary's creditors to reach it, or upon the bankruptcy or receivership of the beneficiary shall be valid except to the extent of the proportion of trust property attributable to such beneficiary's contribution.
(f) If a beneficiary is also a contributor to the trust, a spendthrift provision shall not be valid as to such beneficiary to the extent of the proportion of trust property attributable to such beneficiary's contribution. This subsection shall not apply to a special needs trust established pursuant to 42 U.S.C. Sections 1396p(d)(4)(A) or 1396p(d)(4)(C).
(g) Notwithstanding any other provision in this Code section, a spendthrift provision in a pension or retirement arrangement described in sections 401, 403, 404, 408, 408A, 409, 414, or 457 of the federal Internal Revenue Code of 1986 shall be valid with reference to the entire interest of the beneficiary in the income, principal, or both, even if the beneficiary is also a contributor of trust property, except where a claim is made pursuant to a qualified domestic relations order as defined in 26 U.S.C. Section 414(p).
A transferee or creditor of a beneficiary shall not compel the trustee or a trust director to pay any amount that is payable only in the discretion of the trustee or trust director regardless of whether the discretion is expressed in the form of a standard of distribution, including, but not limited to, health, education, maintenance, and support, and whether such trustee or trust director is also a beneficiary. This Code section shall not apply to the extent of the proportion of trust property attributable to the beneficiary's contribution.
(a)(1) As used in this subsection, the term “creditor” means:
(A) With respect to subparagraphs (A) and (B) of paragraph (2) of this subsection, those creditors of a settlor whose claims against the property of the trust are governed by this article, including those creditors identified in subsection (d) of Code Section 53-12-80; and
(B) With respect to subparagraph (C) of paragraph (2) of this subsection, those claimants whose claims against the property of the settlor's estate are governed by Article 4 of Chapter 7 of this title, including those claimants identified in Code Section 53-7-40.
(2) Regardless of whether the trust instrument contains a spendthrift provision, the following rules shall apply:
(A) During the lifetime of the settlor, the property of a revocable trust shall be subject to claims of the settlor's creditors;
(B) With respect to an irrevocable trust:
(i) Creditors or assignees of the settlor may reach the maximum amount that can be distributed to or for the settlor's benefit during the settlor's life or that could have been distributed to or for the settlor's benefit immediately prior to the settlor's death, provided that, if a trust has more than one settlor, the amount the creditors or assignees of a particular settlor may reach shall not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution; and
(ii) The portion of a trust that can be distributed to or for the settlor's benefit pursuant to the power of a trustee, whether arising under the trust instrument or any other law, to make a distribution to or for the benefit of a settlor for the purpose of reimbursing the settlor in an amount equal to any income taxes payable on any portion of the trust principal and income that is treated as the settlor's individual income under applicable law shall not be considered an amount that can be distributed to or for the settlor's benefit during the settlor's life or that could have been distributed to or for the settlor's benefit immediately prior to the settlor's death; and
(C) After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities shall be paid:
(i) The property of a trust that was revocable at the settlor's death or had become irrevocable as a result of the settlor's incapacity shall be subject to claims of the creditors of the settlor's estate to the extent the settlor's probate estate is inadequate; and
(ii) Payments that would not be subject to the claims of the creditors of the settlor's estate if made by way of beneficiary designation to persons other than the settlor's estate shall not be made subject to such claims by virtue of this Code section unless otherwise provided in the trust instrument.
(b)(1) As used in this subsection, the term:
(A) “Inter vivos marital trust” means:
(i) A trust described in Section 2523(e) of the Internal Revenue Code of 1986, as it existed on February 1, 2018;
(ii) A trust for which the election described in Section 2523(f) of the Internal Revenue Code of 1986, as it existed on February 1, 2018, has been made; or
(iii) Another trust to the extent such trust's assets are attributable to a trust described in division (i) or (ii) of this subparagraph.
(B) “Settlor's spouse” means the spouse of the settlor at the time of the creation of an inter vivos marital trust, regardless of whether such spouse is married to the settlor at the time of such spouse's death.
(2) Subject to Article 4 of Chapter 2 of Title 18, after the death of the settlor's spouse, the assets of an inter vivos marital trust shall be deemed to have been contributed by the settlor's spouse and not by the settlor.
The holder of a power of withdrawal, during the period that the power may be exercised, shall be treated in the same manner as the settlor of a revocable trust to the extent of the property subject to the power. The lapse, release, or waiver of a power of withdrawal shall not cause the holder to be treated as a settlor of the trust.
This part shall be known and may be cited as the “Georgia Testamentary Additions to Trusts Act.”
(a) A devise or bequest, the validity of which is determinable by the law of this state, may be made by a will to the trustee of a trust established or to be established by the testator or by the testator and some other person or by some other person, including a funded or unfunded life insurance trust, even if the settlor has reserved any or all rights of ownership of the insurance contracts, if the trust is identified in the testator's will and its provisions are set forth in a written trust instrument, other than a will, executed before or concurrently with the execution of the testator's will or in the valid last will of a person who has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust and notwithstanding the requirements of paragraph (2) of subsection (b) of Code Section 53-12-20. The devise or bequest shall not be invalid because the trust is amendable or revocable or both or because the trust was amended after the execution of the will or after the death of the testator.
(b) Unless the testator's will provides otherwise, the property so devised or bequeathed:
(1) Shall not be deemed to be held under a testamentary trust of the testator but shall become a part of the trust to which it is devised or bequeathed; and
(2) Shall be administered and disposed of in accordance with the provisions of the trust instrument or will setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.
(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the death of the testator shall cause the devise or bequest to lapse.
The trustee of a trust established by the testator or others as provided in Code Section 53-12-101 shall not be required to inquire into or audit the actions of the executor of the testator's estate or to make any claim against the executor unless specifically directed to do so by the settlor in the trust instrument. In the event that the trustee is authorized or directed by the settlor in the trust instrument to pay or advance any part or all of the trust property to the executor of the testator's estate for the payment of debts, taxes, and expenses of administration of the testator's estate, the trustee shall not be liable for the application of the trust property so paid or advanced and shall not be liable for any act done or omitted to be done by the executor with regard to the trust property.
This part shall apply to all devises or bequests made in the will of a testator dying on or after May 31, 1968, whether the will is executed before or after such date. This part shall not invalidate a devise or bequest to a trustee made by a will executed prior to May 31, 1968, by a testator dying prior to such date.
A trust under a testator's will may be designated as the beneficiary of the testator's qualified retirement plan, individual retirement account, other retirement plan, or life insurance policies on the life of the testator so long as the testator's will is admitted to probate in solemn form, whether the designation occurs before or after the execution of the will. Unless the beneficiary designation provides otherwise, the designation of a trust under a will as beneficiary shall not be treated as the designation of the testator's estate as beneficiary nor shall such property, once delivered to the trustee under the testator's will, be deemed to be part of the testator's estate.
A resulting trust is a trust implied for the benefit of the settlor or the settlor's successors in interest when it is determined that the settlor did not intend that the holder of the legal title to the trust property also should have the beneficial interest in the property under any of the following circumstances:
(1) A trust is created but fails, in whole or in part, for any reason;
(2) A trust is fully performed without exhausting all the trust property; or
(3) A purchase money resulting trust as defined in subsection (a) of Code Section 53-12-131 is established.
(a) A purchase money resulting trust is a resulting trust implied for the benefit of the person paying consideration for the transfer to another person of legal title to real or personal property.
(b) Except as provided in subsection (c) of this Code section, the payment of consideration as provided in subsection (a) of this Code section shall create a presumption in favor of a resulting trust, but such presumption shall be rebuttable by a preponderance of the evidence.
(c) If the payor of consideration and transferee of the property as provided in subsection (a) of this Code section are husband and wife, parent and child, or siblings, a gift shall be presumed, but such presumption shall be rebuttable by clear and convincing evidence.
(a) A constructive trust is a trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.
(b) The person claiming the beneficial interest in the property may be found to have waived the right to a constructive trust by subsequent ratification or long acquiescence.
In all cases in which a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, the circumstances, and the conduct of the parties, either to imply or rebut the trust.
As used in this article, the term:
(1) “Deed” means and includes any written agreement, declaration of trust, or other instrument which creates a trust estate in the trustee named therein and sets forth the terms and conditions of the trust and which indicates an intention, either expressly or by implication, that the trust estate created therein should be subject to this chapter, but such term shall not include a warranty deed, quitclaim deed, bill of sale, or other instrument that conveys title to property to a trustee merely by virtue of such fact alone.
(2) “Property” includes improved or unimproved property, real or personal, leaseholds, mortgages, notes, other obligations secured by property or any interest therein, or other interests in such property.
The owners of property located in this state or persons desiring to acquire beneficial ownership of such property may create by deed an estate therein and in the improvements made thereon and in the property to be acquired, for the benefit of themselves and such other persons, whether sui juris or not, who may contribute to the improvement or development or acquisition of the property and their assigns or transferees, provided that the deed creating the estate shall provide for the improvement or development of the property covered thereby or for the acquisition of the property and the trustee therein named, and his or her successor shall have some active duty to perform in and about the trust property or the management or control of the same. The deed creating the estate shall be recorded as provided in Code Section 53-12-152. When such an estate is created, the legal title to the property and all the property added thereto or substituted therefor shall vest and remain in the trustee named and his or her successor, in accordance with the terms of the deed, with all the powers conferred thereby upon the trustee, and shall not during the continuance of the estate pass to or vest in the beneficiaries. At the end of 25 years from the date of the deed creating the estate, the title to such of the property as may then belong to the estate shall vest in the beneficiaries; and, if the deed creating the estate so provides, a renewal of the estate may be made at the end of the 25 years, upon the terms and conditions and in the manner therein set forth, for a like period; provided, however, that in the alternative to the period of 25 years and the renewal thereof, if the deed so provides, the estate may be created for any period of time specified therein which does not extend beyond any number of lives in being and 21 years thereafter.
(a) The deed creating a trust estate as provided in Code Section 53-12-151 shall, within 30 days of the execution thereof, be filed by the trustee in the office of the clerk of the superior court of the county in which the principal office of the trust is located. The trustee shall concurrently pay to the clerk the fee prescribed in Code Section 15-6-77. Upon the deed being filed with the clerk and the fees being paid, the clerk shall deliver to the trustee or his or her attorney two certified copies of the deed, the filing of the clerk thereon, and a receipt for the costs which have been paid to the clerk.
(b) Upon receiving the two certified copies of the deed, the trustee or his or her attorney shall present the same to the Secretary of State and shall pay $5.00 to the Secretary of State. The Secretary of State shall thereupon attach to one of the certified copies of the deed a certificate in substantially the following form:
STATE OF GEORGIA
OFFICE OF THE SECRETARY OF STATE
This is to certify that a copy of the attached certified copy of a deed, declaration, or agreement of trust dated __________, by and between __________ as settlor(s) and __________ as trustee(s), which states that the trustee(s) may use the name of __________, has been duly filed in the office of the Secretary of State and the fees paid therefor, as provided by law.
WITNESS my hand and official seal this __________ day of __________, ___.
Secretary of State
(c) The certified copy of the deed, together with the certificate of the Secretary of State thereon, shall be received as evidence in any court or proceeding as evidence of the existence of the trust and of its nature, terms, and conditions.
(d) The Secretary of State, at any time, upon the request of any person, shall make and certify additional copies of the deed, filing of the clerk, and certificate of the Secretary of State, upon payment to him or her of a fee of $1.00, plus 10¢ per 100 words for copying, and the additional certified copies shall be likewise admitted in evidence with like force and effect.
(e) Any amendment of a deed shall be filed with the clerk of the superior court and the Secretary of State in the same manner and under the same conditions required in the filing of the original deed, and the fees payable upon the filing shall be computed as if the filing were of an original deed.
If the deed creating a trust estate under Code Section 53-12-151 so provides, the trustee may conduct and transact the affairs of the trust estate under a business or trade name, which name shall be set forth in the deed. The name may include the word “trust” but shall not include the words “trust company.”
When an estate is created pursuant to Code Section 53-12-151 and from time to time thereafter, the trustee shall issue such certificates of beneficial interest as may be provided for by the deed to the persons who are beneficially interested in the estate or who become so interested therein in accordance with the provisions of the deed. The certificates shall pass and be transferred as personalty and in the same manner as shares of stock in corporations and shall be subject to levy and sale under attachment or execution or any other process in like manner as shares of stock. The trustee or person in charge of the estate representing the trustee shall be subject to the same demand as that provided by Code Sections 9-13-58 and 11-8-112 for the levying officer to make upon the officers of a corporation. Persons having claims against the estate may enforce the same by action against the trustee thereof in like manner as actions against corporations, and service thereof may be perfected by serving the trustee, if a resident of this state, and if not, then by publication. The venue of such actions shall be the same as that of similar actions against private corporations, but neither the trustee nor the beneficiaries of the estate shall be personally or individually liable therefor except in cases where officers and stockholders of private corporations would be liable under the law.
The trustee of a trust created under Code Section 53-12-151 shall have sole and exclusive management and control of the property, in accordance with the terms of the deed creating the estate. The exercise by the trustee of any power granted or conferred by the deed, including the power to lease, encumber, and sell, when exercised in accordance with the terms thereof, shall be as valid and effective to all intents and purposes as if the trustee was the sole and exclusive owner of the property in his or her own right. The trustee may resign or be removed and his or her successor may be appointed in the manner of and in accordance with the terms fixed by the deed creating the estate. The same rights, powers, and title over and to the property shall belong to and be vested in the new trustee as are conferred upon the original trustee by the deed creating the estate. The death of a trustee shall not operate to cast title upon his or her heirs, devisees, executors, or administrators, but the same shall vest in his or her successor, when appointed.
In addition to investments in any property, the trustee of a trust created under Code Section 53-12-151 may invest any funds of the trust estate in investments authorized by trustees under the laws of this state; provided, however, that the deed creating the estate may further limit or expand the powers and authority of the trustee with respect to investments, including the power to invest in property located outside this state. The trustee shall be authorized and empowered, in accordance with the terms of the deed creating the estate, from corpus or from income or from both, to repurchase or redeem any issued and outstanding certificates of beneficial interest.
Each trust created pursuant to this article shall make a return to the Secretary of State, upon the creation of the trust and annually thereafter, in the same manner and embracing the same information, insofar as applicable, as returns by corporations which are required to be made under Articles 1 and 16 of Chapter 2 of Title 14, including the provisions with regard to fees, penalty for noncompliance, and recording and certifying of copies of the returns.
Upon the termination of the estate created under Code Section 53-12-151, the legal title to all the property belonging to the estate which is then undisposed of shall pass to and vest in the persons who are, at that time, the beneficiaries of the estate, in shares corresponding to their respective interest as beneficiaries.
(a) Any trust created pursuant to this article may be merged into a domestic corporation for profit organized under the laws of this state and subject to Title 14 if the deed creating the trust expressly authorizes the merger.
(b) With respect to the required procedure for the merger and the rights of dissenting shareholders:
(1) The trust shall comply with any applicable provisions of the deed creating the trust and with the following Code sections, as if the trust were a domestic corporation:
(A) Subsection (b) of Code Section 14-2-1103, as if the trustee of the trust were a board of directors of a domestic corporation;
(B) Subsections (c) through (i) of Code Section 14-2-1103 and Code Sections 14-2-1301 through 14-2-1332, as if the holders of certificates of beneficial interest in the trust were shareholders of a domestic corporation; and
(C) Code Sections 14-2-1105 and 14-2-1105.1; and
(2) The domestic corporation into which the trust is merged shall comply with the provisions of Title 14, relating to the merger of domestic corporations, in the same manner as if the trust being merged into it were a domestic corporation.
(c) Upon compliance with the requirements of this Code section and the filing of articles of merger providing for a merger of the trust into a domestic corporation in the manner provided in Code Sections 14-2-1105 and 14-2-1105.1, the Secretary of State shall treat the merger as if it were a merger of corporations under Code Sections 14-2-1105 and 14-2-1105.1.
(d) If the Secretary of State issues a certificate of merger, the merger shall become effective as of the time of delivery to the Secretary of State of the articles of merger so certified, as provided in Code Section 14-2-1105, or at such later time and date as the articles specify, not to exceed 60 days from the date of delivery of the articles to the Secretary of State. When the merger has become effective:
(1) The trust and the domestic corporation into which the trust is merged shall be a single domestic corporation;
(2) The separate existence of the trust shall cease;
(3) The domestic corporation shall continue to have all the rights, privileges, immunities, and powers and shall be subject to all the duties and liabilities of a corporation organized under Title 14;
(4) The domestic corporation shall possess all the rights, privileges, immunities, and franchises, of a public as well as of a private nature, of the trust; and all property, real, personal, and mixed, all debts due on whatever account, including subscriptions to shares, all other choses in action, and all and every other interest of or belonging to or due to the trust shall be taken and deemed to be transferred to and vested in the domestic corporation without further act or deed; and the title to any real property or any interest therein vested in the trust shall not revert or be in any way impaired by reason of the merger;
(5) The domestic corporation shall be responsible and liable for all the liabilities and obligations of the trust. Any claim existing or action or proceeding pending by or against the trust may be prosecuted as if the merger had not taken place, or the domestic corporation may be substituted in its place. Neither the rights of creditors nor any liens upon the property of the trust shall be impaired by the merger; and
(6) The articles of incorporation of the domestic corporation shall be deemed to be amended to the extent, if any, that changes in its articles of incorporation are stated in the plan of merger.
(a) A charitable trust is a trust in which the settlor provides that the trust property shall be used exclusively for charitable purposes.
(b) Charitable purposes shall include:
(1) The relief of poverty;
(2) The advancement of education;
(3) The advancement of ethics and religion;
(4) The advancement of health;
(5) The advancement of science and the arts and humanities;
(6) The protection and preservation of the environment;
(7) The improvement, maintenance, or repair of cemeteries, other places of disposition of human remains, and memorials;
(8) The prevention of cruelty to animals;
(9) Governmental purposes; and
(10) Other similar subjects having for their object the relief of human suffering or the promotion of human civilization.
The settlor of a charitable trust may retain the power to select the charitable purposes or charitable beneficiaries, or may grant the trustee or any other person the power to select charitable purposes or charitable beneficiaries or to engage in the charitable purposes, without rendering the trust void for indefiniteness.
If a charitable trust or gift cannot be executed in the manner provided by the settlor or donor, the superior court shall exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the settlor or donor.
A charitable trust shall be valid even though under the trust provisions it is to continue for an indefinite or unlimited period.
In all cases in which the rights of beneficiaries under a charitable trust are involved, the Attorney General or the district attorney of the circuit in which the major portion of trust property lies shall represent the interests of the beneficiaries and the interests of this state as parens patriae in all legal matters pertaining to the administration and disposition of such trust. The Attorney General or the district attorney may bring or defend actions, and, insofar as an action of this nature may be deemed an action against the state, the state expressly gives its consent thereto. The venue of such actions may be in any county in this state in which a substantial number of persons who are the beneficiaries of the trust reside. Process shall be directed to the Attorney General or to the district attorney of the circuit in which the major portion of the trust property lies. Service may be perfected by mailing a copy of the petition and process by the clerk of the superior court of the county in which it is filed to the Attorney General or to the district attorney of the circuit in which the major portion of the trust property lies. Any judgment determining rights under any charitable trusts shall be binding on the beneficiaries if the Attorney General or the district attorney of the circuit in which the major portion of the trust property lies is a party and is served as provided in this Code section.
The settlor of a charitable trust may maintain a civil action to enforce the trust.
Notwithstanding any provision therein to the contrary and except as provided in Code Section 53-12-181, the articles of incorporation of any corporation which is a private foundation shall be amended automatically as of the later of the date of incorporation or January 1, 1972, to provide that the corporation shall:
(1) Not engage in any act of self-dealing, as defined in Section 4941(d) of the federal Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4941 of the federal Internal Revenue Code;
(2) Not retain any excess business holdings, as defined in Section 4943(c) of the federal Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4943 of the federal Internal Revenue Code;
(3) Not make any investments which would jeopardize the carrying out of any of the exempt purposes of the corporation, within the meaning of Section 4944 of the federal Internal Revenue Code, so as to give rise to any liability for the tax imposed by Section 4944 of the federal Internal Revenue Code;
(4) Not make any taxable expenditures, as defined in Section 4945(d) of the federal Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4945 of the federal Internal Revenue Code; and
(5) Distribute for the purpose specified in its articles of incorporation for each taxable year amounts at least sufficient to avoid any liability for the tax imposed by Section 4942 of the federal Internal Revenue Code.
Any corporation which is a private foundation may amend its articles of incorporation expressly to exclude the application of Code Section 53-12-180 or any portion thereof in the manner provided by Article 10 of Chapter 2 of Title 14 or Article 8 of Chapter 3 of Title 14, whichever is applicable.
Nothing contained in Code Sections 53-12-180 and 53-12-181 shall cause or be construed to cause a forfeiture or reversion of any of the property of a corporation which is subject to such Code sections.
With respect to property held by a corporation which is a private foundation and which is subject to conditions which permit distributions to the extent of the net income of the property each year but do not permit distributions of the property or any part thereof itself, the directors of the corporation may elect to distribute so much of the property as may be necessary to enable the corporation to avoid liability for any tax imposed by Section 4942 of the federal Internal Revenue Code in the same manner as if the corporation were a trust described in Code Section 53-12-193 and the property were the only property held in the trust and as if the directors were the trustees of the trust.
Nothing in Code Sections 53-12-180 through 53-12-183 shall impair the rights and powers of the courts or the Attorney General of this state with respect to any corporation.
Notwithstanding any provision therein to the contrary and except as provided in Code Section 53-12-192, the governing trust instrument of any trust which is a private foundation, a charitable trust, as defined in Section 4947(a)(1) of the federal Internal Revenue Code, or a split-interest trust, as defined in Section 4947(a)(2) of the federal Internal Revenue Code, shall be amended automatically as of the later of the inception of the trust or January 1, 1972, to include provisions which prohibit the trustees of the trust from:
(1) Engaging in any act of self-dealing, as defined in Section 4941(d) of the federal Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4941 of the federal Internal Revenue Code;
(2) Retaining any excess business holdings, as defined in Section 4943(c) of the federal Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4943 of the federal Internal Revenue Code;
(3) Making any investments which would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of Section 4944 of the federal Internal Revenue Code, so as to give rise to any liability for the tax imposed by Section 4944 of the federal Internal Revenue Code; and
(4) Making any taxable expenditures, as defined in Section 4945(d) of the federal Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4945 of the federal Internal Revenue Code;
provided, however, that in the case of a split-interest trust, as defined in Section 4947(a)(2) of the federal Internal Revenue Code, paragraphs (1) through (4) of this Code section shall apply only to the extent required by Section 4947 of the federal Internal Revenue Code.
Notwithstanding any provision therein to the contrary and except as provided in Code Section 53-12-192, the governing trust instrument of any trust which is a private foundation or which is a charitable trust, as defined in Section 4947(a)(1) of the federal Internal Revenue Code, shall be amended automatically as of the later of the inception of the trust or January 1, 1972, to include a provision which requires the trustees to distribute, for the purposes specified in the governing trust instrument, for each taxable year, amounts at least sufficient to avoid any liability for the tax imposed by Section 4942 of the federal Internal Revenue Code.
The trustees of any trust which is a private foundation, a charitable trust, as defined in Section 4947(a)(1) of the federal Internal Revenue Code, or a split-interest trust, as defined in Section 4947(a)(2) of the federal Internal Revenue Code, may, without judicial proceedings, amend the governing trust instrument of the trust expressly to exclude the application of Code Section 53-12-190 or 53-12-191, or both, by executing a written amendment to the trust and filing a duplicate original of the amendment with the Attorney General of this state, whereupon the Code section or Code sections, as the case may be, shall not apply to the trust.
(a) With respect to any trust which is a private foundation or a charitable trust, as defined in Section 4947(a)(1) of the federal Internal Revenue Code, the governing trust instrument of which permits distributions to the extent of the net income of the trust each year but does not permit distributions from trust principal, the trustees of the trust may elect, without judicial proceedings and notwithstanding any provision to the contrary contained in the governing trust instrument of the trust, to distribute in any year, for the purposes specified in the governing trust instrument, that amount from the principal of the trust which, when added to the income of the trust available for distribution during such year, will enable the trust to avoid any liability for the tax imposed by Section 4942 of the federal Internal Revenue Code by filing a written election, which may be a continuing one, with the Attorney General of this state to have this Code section and Code Section 53-12-183 apply to the trust. A distribution from trust principal pursuant to the election shall only be in the form of cash or securities which are either listed or admitted to unlisted trading privileges upon any stock exchange or are quoted regularly in any newspaper having a general circulation in this state.
(b) Any election made under subsection (a) of this Code section may be revoked at any time by filing written notice of revocation with the Attorney General of this state.
Nothing contained in Code Sections 53-12-190 through 53-12-193 shall cause or be construed to cause a forfeiture or reversion of any of the property of a trust which is subject to such Code sections or to make the purposes of such trust impossible of accomplishment.
Nothing in Code Sections 53-12-190 through 53-12-193 shall impair the rights and powers of the courts or the Attorney General of this state with respect to any trust.
A trustee shall have legal capacity under Georgia law to acquire, hold, and transfer title to property. An individual shall be eligible to serve as a trustee regardless of citizenship or residency. If the trustee is a corporation, partnership, or other entity, it shall be required to have the power to act as a trustee in Georgia.
(a) A settlor may appoint trustees or grant that power to others, including trust beneficiaries.
(b) A trust shall never fail for want of a trustee.
(c) If the trust instrument names a person to fill a vacancy or provides a method of appointing a trustee, any vacancy shall be filled or appointment made as provided in the trust instrument.
(d) The qualified beneficiaries may appoint a trustee by unanimous consent.
(e) In all other cases, the court, on petition of an interested person, may appoint any number of trustees consistent with the intention of the settlor and the interests of the beneficiaries.
(f) The petition provided for in subsection (e) of this Code section shall be served upon all qualified beneficiaries.
(g) A trustee appointed as a successor trustee shall have all the authority of the original trustee.
(a) The acceptance of a trust shall be necessary to constitute a person as trustee. Acceptance may be effected by acts as well as words. After acceptance, the trustee shall not decline the trusteeship.
(b) Except as otherwise provided in subsection (c) of this Code section, a person designated as trustee accepts the trusteeship:
(1) By substantially complying with a method of acceptance provided in the trust instrument; or
(2) If the trust instrument does not provide a method or the method provided in the trust instrument is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.
(c) A person designated as trustee, without accepting the trusteeship, may act to preserve the trust property if, as soon as practicable, the person rejects or declines the trusteeship.
(a) A trustee shall not be required to give a bond to secure performance of the trustee's duties unless:
(1) The trust instrument requires a bond; or
(2) A bond is found by the court to be necessary to protect the interests of beneficiaries or creditors of the trust, even though the trust instrument waives the requirement of a bond.
(b) Even though a bond has been required pursuant to subsection (a) of this Code section or the trust instrument requires a bond, the court may excuse the requirement, reduce or increase the amount of a bond, release a surety, or permit the substitution of another bond with the same or different sureties.
(c) The cost of any bond shall be charged against the trust.
(d) If a bond is required, the bond shall be:
(1) Secured by an individual who is a domiciliary of this state or by a licensed commercial surety authorized to transact business in this state;
(2) Payable to the court for the benefit of interested persons as their interests may appear;
(3) Conditioned upon the faithful discharge of the trustee's duties; and
(4) If imposed by the court, in an amount and with sureties and liabilities as required by the court.
(e) Notwithstanding any other law to the contrary:
(1) A financial institution, trust company, national or state bank, savings bank, or savings and loan association described in Code Section 7-1-242 that seeks to serve as a trustee under any trust created under or governed by the laws of this state shall not be required to give bond for the faithful performance of its duties unless its combined capital, surplus, and undivided profits are less than $3 million as reflected in its last statement filed with the Comptroller of the Currency of the United States or the commissioner of banking and finance; and
(2) In every case in which the trustee of any trust is required to give bond for the faithful performance of the trustee's duties in such fiduciary capacity, the bond shall be in a value equal to double the value of the trust estate; provided, however, that the trustee may give bond in an amount equal to the value of the trust estate if the bond is secured by a licensed commercial surety authorized to transact business in this state. For purposes of this paragraph, the term “trust estate” shall exclude real property and improvements thereon held by the trustee in a fiduciary capacity; provided, however, that upon the conversion of any such real property into personalty, the trustee shall give a new bond including the value of the personalty into which the real property has been converted.
(f) The trustee and any surety shall be held and deemed joint and several obligors and may be subjected jointly and severally to liability in the same action. No prior judgment establishing the liability of the trustee shall be necessary before an action is brought against the sureties on the bond.
(g) When a judgment has been obtained against the principal and surety or sureties on the bond of a trustee, a levy may be made upon any property of any defendant in fi. fa.
(h) A court of competent jurisdiction shall be authorized to enter a judgment and to issue a writ of execution against the principal and surety on the bond of a trustee and shall be further authorized to grant judgment and execution in favor of the surety against the principal upon payment of the judgment by the surety.
(i) Failure to comply with this Code section shall not make void or voidable or otherwise affect an act or transaction of a trustee with any third party.
The authority of cotrustees to act on behalf of the trust shall be as follows:
(1) A power vested in two or more trustees shall only be exercised by their unanimous action; provided, however, that a cotrustee may delegate to one or more other cotrustees the performance of ministerial acts;
(2) If a vacancy occurs in the office of a cotrustee, the remaining cotrustee or cotrustees may act unless or until the vacancy is filled; and
(3) While a cotrustee is unable to act because of inaccessibility, illness, or other temporary incapacity, the remaining cotrustee or cotrustees may act as if they were the only trustees when necessary to accomplish the purposes of the trust.
(a) Trustees shall be compensated in accordance with either the trust instrument or any separate written agreement between the trustee and the settlor. After the settlor's death or incapacity or while the trust is irrevocable, the trust instrument or the agreement relating to such trustee's compensation may be modified as follows:
(1) The trustee and all qualified beneficiaries may by unanimous consent modify the trust instrument or agreement relating to the trustee's compensation without receiving the approval of any court; or
(2) By petition pursuant to Code Section 53-12-61.
(b) If there is no provision for trustee compensation in the trust instrument and there is no separate written agreement between the trustee and the settlor relating to such trustee's compensation, a separate written agreement relating to such trustee's compensation may be entered into between such trustee and the qualified beneficiaries as follows:
(1) The trustee and all qualified beneficiaries may by unanimous consent enter into an agreement relating to such trustee's compensation without receiving the approval of any court; or
(2) Any qualified beneficiary may petition the court to approve an agreement relating to such trustee's compensation. Such petition shall be served upon all qualified beneficiaries.
(c) In cases other than those described in subsections (a) and (b) of this Code section, the trustee shall be entitled to compensation as follows:
(1) With respect to a corporate trustee, its published fee schedule, provided that such fees are reasonable under the circumstances; and
(2) With respect to an individual trustee:
(A) One percent of cash and the fair market value of any other principal asset received upon the initial funding of the trust and at such time as additional principal assets are received; and
(B) An annual fee calculated in accordance with the following schedule based upon the cash and the market value of the other principal assets valued as of the last day of the trust accounting year prorated based on the length of service by such trustee during that year:
| | If the cash and market value of the other principal assets are: | Annual fee: | | | --- | --- | --- | --- | | | | $500,000.00 or less․․․․․․․․․․․․․․․․․․․․․․․․ | 1.75 percent of the cash and market value of the other principal assets. | | | | More than $500,000.00 but not more than $1 million | $8,750.00 plus 1.25 percent of the excess over $500,000.00. | | | | More than $1 million but not more than $2 million | $15,000.00 plus 1.00 percent of the excess over $1 million. | | | | More than $2 million but not more than $5 million | $25,000.00 plus 0.85 percent of the excess over $2 million. | | | | More than $5 million․․․․․․․․․․․․․․․․․․․․․․․ | $50,500.00 plus 0.50 percent of the excess over $5 million.” |
Unless any separate written agreement provides otherwise:
(1) Each cotrustee shall be compensated as specified by the terms of the trust, as each trustee may have agreed or in accordance with a published fee schedule, and such compensation among cotrustees shall not be apportioned unless they shall agree otherwise; and
(2) The annual fee paid pursuant to subparagraph (c)(2)(B) of Code Section 53-12-210 shall be apportioned among trustees and successor trustees according to the proportion of time each rendered services during the year.
(a) A trustee who is receiving compensation as described in subsection (c) of Code Section 53-12-210 may petition the court for compensation that is greater than the compensation allowed under that subsection. Notice of the petition for extra compensation shall be given to all qualified beneficiaries.
(b) After hearing any objection, the court shall allow such extra compensation as the court deems reasonable. The allowance of extra compensation shall be conclusive as to all parties in interest.
A trustee shall be entitled to be reimbursed out of the trust property for reasonable expenses that were properly incurred in the administration of the trust.
(a) Any trustee may receive compensation for services, as specified in this subsection, from a corporation or other business enterprise, where the trust estate owns an interest in the corporation or other business enterprise, provided that:
(1) The services provided by the trustee to the corporation or other business enterprise are of a managerial, executive, or business advisory nature;
(2) The compensation received for the services is reasonable; and
(3) The services are performed and the trustee is paid pursuant to a contract executed by the trustee and the corporation or business enterprise, which contract is approved by a majority of those members of the board of directors or other similar governing authority of the corporation or business enterprise who are not officers or employees of the trustee and are not related to the trustee and provided, further, that the contract is approved by the court.
(b) Any trustee receiving compensation from a corporation or other business enterprise for services to it as described in subsection (a) of this Code section shall not receive extra compensation in respect to such services as provided in Code Section 53-12-212; provided, however, that nothing in this Code section shall prohibit the receipt by the trustee of extra compensation for services rendered in respect to other assets or matters involving the trust estate.
(c) Nothing in this Code section shall prohibit the receipt by trustees of normal commissions and compensation for the usual services performed by trustees pursuant to law or pursuant to any fee agreement executed by the settlor.
(d) The purpose of this Code section is to enable additional compensation to be paid to trustees for business management and advisory services to corporations and business enterprises pursuant to contract, without the necessity of petitioning for extra compensation pursuant to Code Section 53-12-212.
(a) A trustee may resign:
(1) In the manner and under the circumstances described in the trust instrument;
(2) Upon at least 30 days' written notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or
(3) Upon a trustee's petition to the court.
(b) The petition to the court provided for in paragraph (3) of subsection (a) of this Code section shall be served upon all qualified beneficiaries. In approving a trustee's resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.
(c) The resignation of a trustee shall not relieve such trustee from liability for any actions prior to the resignation except to the extent such trustee is relieved by the court in the appropriate proceeding or to the extent relieved by the trust instrument.
(d) If the resignation would create a vacancy required to be filled, then the trustee's resignation shall not be effective until the successor trustee accepts the trust and the resigning trustee shall remain liable for any actions until such acceptance, except as such liability may be limited by court order or the trust instrument.
(a) A trustee may be removed:
(1) In accordance with the provisions of the trust instrument; or
(2) Upon petition to the court by any interested person showing good cause.
(b) In the discretion of the court, in order to protect the trust property or the interests of any beneficiary, on its own motion or on motion of a cotrustee or other interested person, the court may compel the trustee whose removal is being sought to surrender trust property to a cotrustee, a receiver, or temporary trustee pending a decision on a petition for removal of a trustee or pending appellate review of such decision. To the extent the court deems necessary, the powers of the trustee also may be suspended.
(a) At any time following 12 months from the date of acceptance of a trust, but not more frequently than once every 12 months, a trustee may petition the court to approve an interim accounting relieving the trustee from liability for the period covered by the interim accounting.
(b) The petition shall set forth:
(1) The name and address of the trustee;
(2) Any provisions of the trust relating to matters that will be covered by the interim accounting;
(3) The beneficiaries of the trust, specifying any beneficiary believed to be in need of a guardian ad litem;
(4) The period which the accounting covers;
(5) A statement of receipts and disbursements of the trust that have occurred since the trustee's acceptance of the trust or since the effective date of the last accounting;
(6) In a separate schedule, the principal on hand at the beginning of the accounting period and the status at that time of its investment; the investments received from the settlor and still held; additions to principal during the accounting period, with dates and sources of acquisition; investments collected, sold, or charged off during the accounting period, with the consequent loss or gain and whether credited to principal or income; investments made during the accounting period, with the date, source, and cost of each; deductions from the principal during the accounting period, with the date and purpose of each; and principal on hand at the end of the accounting period, how invested, and the estimated market value of each investment;
(7) In a separate schedule, the income on hand at the beginning of the accounting period and in what form held; income received during the accounting period, when, and from what source; income paid out during the accounting period, when, to whom, and for what purpose; and income on hand at the end of the accounting period and how invested;
(8) A statement of the assets and liabilities of the trust as of the end of the accounting period; and
(9) Other information reasonably necessary to explain or understand the accounting.
(c) The petition shall be served on the beneficiaries of the trust and the surety on the trustee's bond, if any.
(d) Upon review of the petition and after considering any objections thereto and any evidence presented, the court may approve the trustee's interim accounting or enter judgment granting appropriate relief. If no objection to the petition is filed within the time allowed by law after service, or if the parties consent, the petition may be approved without notice, hearing, or further proceedings. The final judgment of the court shall be binding on all parties.
(e) Costs and expenses, including reasonable attorney's fees of the trustee, shall be taxed against the trust, unless otherwise directed by the court.
(a) If the trustee resigns, is removed, or dies or upon the termination of the trust, a beneficiary or the successor trustee may petition the court to require the trustee or the trustee's personal representative to appear before the court for a final accounting. Alternatively, the trustee or the trustee's personal representative may petition the court to approve a final accounting relieving the trustee from liability for the period covered by the final accounting. The settlement period shall begin from the acceptance of the trusteeship by the trustee or the end of the period covered by the last interim accounting.
(b) The petition shall set forth:
(1) The name and address of the trustee;
(2) The beneficiaries of the trust, specifying any beneficiary believed to be in need of a guardian ad litem;
(3) The period which the accounting covers; and
(4) If the petition is filed by the trustee or the trustee's personal representative, the petition shall also include the information required to be filed by trustees in conjunction with the approval of an interim accounting as set forth in subsection (b) of Code Section 53-12-230.
(c) The petition shall be served on the beneficiaries, the trustee, the trustee's personal representative, if any, and the surety on the trustee's bond, if any.
(d) Upon review of the trustee's final accounting and after considering any objections thereto and any evidence presented, the court may approve the final accounting or enter judgment granting appropriate relief. If no objection to the petition is filed within the time allowed by law after service, or if the parties consent, the petition may be approved without notice, hearing, or further proceedings. The final judgment of the court shall be binding on all parties.
(e) Costs and expenses, including reasonable attorney's fees of the trustee, shall be taxed against the trust, unless otherwise directed by the court.
Nothing in this article shall restrict the right of any party to seek an equitable accounting.
(a) The duties contained in this part are in addition to and not in limitation of the common law duties of the trustee, except to the extent inconsistent therewith.
(b) Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its provisions and purposes.
(a) In administering a trust, the trustee shall exercise the judgment and care of a prudent person acting in a like capacity and familiar with such matters, considering the purposes, provisions, distribution requirements, and other circumstances of the trust.
(b) A trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in Article 16 of this chapter.
(a) Within 60 days after the date of creation of an irrevocable trust or of the date on which a revocable trust becomes irrevocable, the trustee shall notify the qualified beneficiaries of such trust of the existence of such trust and the name and mailing address of such trustee.
(b) All irrevocable trusts in existence on July 1, 2010, shall be deemed to have waived this provision unless the trust instrument says otherwise.
(a) On reasonable request by any qualified beneficiary, the trustee shall provide the qualified beneficiary with a report of information, to the extent relevant to that beneficiary's interest, about the assets, liabilities, receipts, and disbursements of the trust, the acts of the trustee, and the particulars relating to the administration of such trust, including the trust provisions that describe or affect such beneficiary's interest.
(b)(1) A trustee shall account at least annually, at the termination of the trust, and upon a change of trustees to each beneficiary of an irrevocable trust to whom income is required or authorized in the trustee's discretion to be distributed currently, and to any person who may revoke the trust. At the termination of the trust, the trustee shall also account to each remainder beneficiary. Upon a change of trustees, the trustee shall also account to the successor trustee.
(2) An accounting furnished to a beneficiary pursuant to paragraph (1) of this subsection shall contain a statement of receipts and disbursements of principal and income that have occurred during the last complete fiscal year of the trust or since the last accounting to that beneficiary and a statement of the assets and liabilities of the trust as of the end of the accounting period.
(c) A trustee shall not be required to report information or account to a beneficiary who has waived in writing the right to a report or accounting and has not withdrawn that waiver.
(d) Subsections (a) and (b) of this Code section and the common law duty of the trustee to keep the beneficiaries of the trust reasonably informed of the trust and its administration shall not apply to the extent that the provisions of the trust provide otherwise or the settlor of the trust directs otherwise in a writing delivered to the trustee.
(e) Nothing in this Code section shall affect the power of a court to require or excuse an accounting.
A trustee shall distribute all net income derived from the trust at least annually.
A trustee shall not be under any duty to investigate the resources of any beneficiary when determining whether to distribute trust property to such beneficiary.
(a) A trustee shall administer the trust solely in the interests of the beneficiaries.
(b) This Code section shall not preclude the following transactions, if fair to the beneficiaries:
(1) An agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee;
(2) Payment of reasonable compensation to the trustee; or
(3) Performing and receiving reasonable compensation for performing services of a managerial, executive, or business advisory nature for a corporation or other business enterprise, where the trust estate owns an interest in the corporation or other business enterprise.
Except to the extent that the governing trust instrument clearly manifests an intention that the trustee shall or may favor one or more of the beneficiaries, a trustee shall administer a trust impartially based on what is fair and reasonable to all of the beneficiaries and with due regard to the respective interests of income beneficiaries and remainder beneficiaries.
Notwithstanding the breadth of discretion granted to a trustee in the trust instrument, including the use of such terms as “absolute,” “sole,” or “uncontrolled,” the trustee shall exercise a discretionary power in good faith.
(a) A trustee of an express trust, without court authorization, shall be authorized to exercise:
(1) Powers conferred by the trust instrument; and
(2) Except as limited by the trust instrument:
(A) All powers over the trust property that an unmarried competent owner has over individually owned property;
(B) Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property; and
(C) Any other powers conferred by this chapter.
(b) Without limiting the authority conferred by subsection (a) of this Code section, a trustee of an express trust, without court authorization, shall be authorized:
(1) To sell, exchange, grant options upon, partition, or otherwise dispose of any property or interest therein which the fiduciary may hold from time to time, at public or private sale or otherwise, with or without warranties or representations, upon such terms and conditions, including credit, and for such consideration as the fiduciary deems advisable and to transfer and convey the property or interest therein which is at the disposal of the fiduciary, in fee simple absolute or otherwise, free of all trust. The party dealing with the fiduciary shall not be under a duty to follow the proceeds or other consideration received;
(2) To invest and reinvest in any property which the fiduciary deems advisable, including, but not limited to, common or preferred stocks, bonds, debentures, notes, mortgages, or other securities, in or outside the United States; insurance contracts on the life of any beneficiary or of any person in whom a beneficiary has an insurable interest or in annuity contracts for any beneficiary; any real or personal property; investment trusts, including the securities of or other interests in any open-end or closed-end management investment company or investment trust registered under the federal Investment Company Act of 1940, 15 U.S.C. Section 80a-1, et seq.; and participations in common trust funds;
(3) To the extent and upon such terms and conditions and for such periods of time as the fiduciary shall deem necessary or advisable, to continue or participate in the operation of any business or other enterprise, whatever its form or organization, including, but not limited to, the power:
(A) To effect incorporation, dissolution, or other change in the form of the organization of the business or enterprise;
(B) To dispose of any interest therein or acquire the interest of others therein;
(C) To contribute or invest additional capital thereto or to lend money thereto in any such case upon such terms and conditions as the fiduciary shall approve from time to time; and
(D) To determine whether the liabilities incurred in the conduct of the business are to be chargeable solely to the part of the property held by the fiduciary set aside for use in the business or to the property held by the fiduciary as a whole.
In all cases in which the fiduciary is required to file accounts in any court or in any other public office, it shall not be necessary to itemize receipts, disbursements, and distributions of property; but it shall be sufficient for the fiduciary to show in the account a single figure or consolidation of figures, and the fiduciary shall be permitted to account for money and property received from the business and any payments made to the business in lump sum without itemization;
(4) To form a corporation or other entity and to transfer, assign, and convey to the corporation or entity all or any part of the property held by the fiduciary in exchange for the stock, securities, or obligations of or other interests in any such corporation or entity and to continue to hold the stock, securities, obligations, and interests;
(5) To continue any farming operation and to do any and all things deemed advisable by the fiduciary in the management and maintenance of the farm and the production and marketing of crops and dairy, poultry, livestock, orchard, and forest products, including, but not limited to, the power:
(A) To operate the farm with hired labor, tenants, or sharecroppers;
(B) To lease or rent the farm for cash or for a share of the crops;
(C) To purchase or otherwise acquire farm machinery, equipment, and livestock;
(D) To construct, repair, and improve farm buildings of all kinds needed, in the fiduciary's judgment, for the operation of the farm;
(E) To make or obtain loans or advances at the prevailing rate or rates of interest for farm purposes, such as for production, harvesting, or marketing; or for the construction, repair, or improvement of farm buildings; or for the purchase of farm machinery, equipment, or livestock;
(F) To employ approved soil conservation practices, in order to conserve, improve, and maintain the fertility and productivity of the soil;
(G) To protect, manage, and improve the timber and forest on the farm and to sell the timber and forest products when it is to the best interest of the persons to whom the fiduciary owes a duty of care;
(H) To ditch, dam, and drain damp or wet fields and areas of the farm when and where needed;
(I) To engage in the production of livestock, poultry, or dairy products and to construct such fences and buildings and to plant pastures and crops as may be necessary to carry on such operations;
(J) To market the products of the farm; and
(K) In general, to employ good husbandry in the farming operation;
(6) To manage real property:
(A) To improve, manage, protect, and subdivide any real property;
(B) To dedicate, or withdraw from dedication, parks, streets, highways, or alleys;
(C) To terminate any subdivision or part thereof;
(D) To borrow money for the purposes authorized by this paragraph for the periods of time and upon the terms and conditions as to rates, maturities, and renewals as the fiduciary shall deem advisable and to mortgage or otherwise encumber the property or part thereof, whether in possession or reversion;
(E) To lease the property or part thereof, the lease to commence at the present or in the future, upon the terms and conditions, including options to renew or purchase, and for the period or periods of time as the fiduciary deems advisable even though the period or periods may extend beyond the duration of the estate or trust;
(F) To make gravel, sand, oil, gas, and other mineral leases, contracts, licenses, conveyances, or grants of every nature and kind which are lawful in the jurisdiction in which the property lies;
(G) To manage and improve timber and forests on the property, to sell the timber and forest products, and to make grants, leases, and contracts with respect thereto;
(H) To modify, renew, or extend leases;
(I) To employ agents to rent and collect rents;
(J) To create easements and to release, convey, or assign any right, title, or interest with respect to any easement on the property or part thereof;
(K) To erect, repair, or renovate any building or other improvement on the property and to remove or demolish any building or other improvement in whole or in part; and
(L) To deal with the property and every part thereof in all other ways and for such other purposes or considerations as it would be lawful for any person owning the same to deal with such property either in the same or in different ways from those specified elsewhere in this paragraph;
(7) To lease personal property held by the fiduciary or part thereof, the lease to commence at the present or in the future, upon the terms and conditions, including options to renew or purchase, and for the period or periods of time as the fiduciary deems advisable even though the period or periods may extend beyond the duration of the estate or trust;
(8)(A) To pay debts, taxes, assessments, compensation of the fiduciary, and other expenses incurred in the collection, care, administration, and protection of the property held by the fiduciary; and
(B) To pay from the estate or trust all charges that the fiduciary deems necessary or appropriate to comply with laws regulating environmental conditions and to remedy or ameliorate any such conditions which the fiduciary determines adversely affect the property held by the fiduciary or otherwise are liabilities of the estate or trust and to apportion all such charges among the several bequests and trusts and the interests of the beneficiaries in such manner as the fiduciary deems fair, prudent, and equitable under the circumstances;
(9) To receive additional property from any source and to administer the additional property as a portion of the appropriate estate or trust under the management of the fiduciary, provided that the fiduciary shall not be required to receive the property without the fiduciary's consent;
(10) In dealing with one or more fiduciaries of the estate or any trust created by the decedent or the settlor or any spouse or child of the decedent or settlor and irrespective of whether the fiduciary is a personal representative or trustee of such other estate or trust:
(A) To sell real or personal property of the estate or trust to such fiduciary or to exchange such property with such fiduciary upon such terms and conditions as to sale price, terms of payment, and security as shall seem advisable to the fiduciary; and the fiduciary shall be under no duty to follow the proceeds of any such sale; and
(B) To borrow money from the estate or trust for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and securities as the fiduciary shall deem advisable for the purpose of paying debts of the decedent or settlor, taxes, the costs of the administration of the estate or trust, and like charges against the estate or trust or any part thereof or of discharging any other liabilities of the estate or trust and to mortgage, pledge, or otherwise encumber such portion of the estate or trust as may be required to secure the loan and to renew existing loans;
(11) To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the fiduciary shall deem advisable for the purpose of paying debts, taxes, or other charges against the estate or trust or any part thereof and to mortgage, pledge, or otherwise encumber such portion of the property held by the fiduciary as may be required to secure the loan and to renew existing loans either as maker or endorser;
(12) To make loans out of the property held by the fiduciary, including loans to a beneficiary on terms and conditions the fiduciary considers to be fair and reasonable under the circumstances, and the fiduciary has a lien on future distributions for repayment of those loans;
(13) To vote shares of stock or other ownership interests held by the fiduciary, in person or by proxy, with or without power of substitution;
(14) To hold a security in the name of a nominee or in other form without disclosure of the fiduciary relationship, so that title to the security may pass by delivery; but the fiduciary shall be liable for any act of the nominee in connection with the security so held;
(15) To exercise all options, rights, and privileges to convert stocks, bonds, debentures, notes, mortgages, or other property into other stocks, bonds, debentures, notes, mortgages, or other property; to subscribe for other or additional stocks, bonds, debentures, notes, mortgages, or other property; and to hold the stocks, bonds, debentures, notes, mortgages, or other property so acquired as investments of the estate or trust so long as the fiduciary shall deem advisable;
(16) To unite with other owners of property similar to any which may be held at any time by the fiduciary, in carrying out any plan for the consolidation or merger, dissolution or liquidation, foreclosure, lease, or sale of the property or the incorporation or reincorporation, reorganization, or readjustment of the capital or financial structure of any corporation, company, or association the securities of which may form any portion of an estate or trust; to become and serve as a member of a shareholders' or bondholders' protective committee; to deposit securities in accordance with any plan agreed upon; to pay any assessments, expenses, or sums of money that may be required for the protection or furtherance of the interest of the beneficiaries to whom the fiduciary owes a duty of care with reference to any such plan; and to receive as investments of the estate or trust any securities issued as a result of the execution of such plan;
(17) To adjust the interest rate from time to time on any obligation, whether secured or unsecured, constituting a part of the estate or trust;
(18) To continue any obligation, whether secured or unsecured, upon and after maturity, with or without renewal or extension, upon such terms as the fiduciary shall deem advisable, without regard to the value of the security, if any, at the time of the continuance;
(19) To foreclose, as an incident to the collection of any bond, note, or other obligation, any deed to secure debt or any mortgage, deed of trust, or other lien securing the bond, note, or other obligation and to bid in the property at the foreclosure sale or to acquire the property by deed from the mortgagor or obligor without foreclosure; and to retain the property so bid in or taken over without foreclosure;
(20) To carry such insurance coverage as the fiduciary shall deem advisable;
(21) To collect, receive, and issue receipts for rents, issues, profits, and income of the estate or trust;
(22)(A) To compromise, adjust, mediate, arbitrate, or otherwise deal with and settle claims involving the fiduciary or the property held by the fiduciary;
(B) To compromise, adjust, mediate, arbitrate, bring or defend actions on, abandon, or otherwise deal with and settle claims in favor of or against the estate or trust as the fiduciary shall deem advisable; the fiduciary's decision shall be conclusive between the fiduciary and the beneficiaries to whom the fiduciary owes a duty of care and the person against or for whom the claim is asserted, in the absence of fraud by such persons and, in the absence of fraud, bad faith, or gross negligence of the fiduciary, shall be conclusive between the fiduciary and the beneficiaries to whom the fiduciary owes a duty of care; and
(C) To compromise all debts, the collection of which are doubtful, belonging to the estate or trust when such settlements will advance the interests of those represented;
(23) To employ and compensate, out of income or principal or both and in such proportion as the fiduciary shall deem advisable, persons deemed by the fiduciary needful to advise or assist in the administration of the estate or trust, including, but not limited to, agents, accountants, brokers, attorneys at law, attorneys in fact, investment brokers, rental agents, realtors, appraisers, and tax specialists; and to do so without liability for any neglect, omission, misconduct, or default of any such agent or representative selected and retained with due care on the part of the fiduciary; provided, however, that, if an attorney in fact is appointed by a power of attorney to which Chapter 6B of Title 10 is applicable under Code Section 10-6B-81, the exercise of the fiduciary powers of the trustee by the attorney in fact shall be subject to Code Section 10-6B-40;
(24) To acquire, receive, hold, and retain undivided the principal of several trusts created by a single trust instrument until division shall become necessary in order to make distributions; to hold, manage, invest, reinvest, and account for the several shares or parts of shares by appropriate entries in the fiduciary's books of account and to allocate to each share or part of share its proportionate part of all receipts and expenses; provided, however, that this paragraph shall not defer the vesting in possession of any share or part of share of the trust;
(25) To set up proper and reasonable reserves for taxes, assessments, insurance premiums, depreciation, obsolescence, amortization, depletion of mineral or timber properties, repairs, improvements, and general maintenance of buildings or other property out of rents, profits, or other income received;
(26) To value property held by the fiduciary and to distribute such property in cash or in kind, or partly in cash and partly in kind, in divided or undivided interests, as the fiduciary finds to be most practical and in the best interest of the distributees, the fiduciary being able to distribute types of assets differently among the distributees;
(27) To transfer money or other property distributable to a beneficiary who is under age 21, an adult for whom a guardian or conservator has been appointed, or an adult who the fiduciary reasonably believes is incapacitated by distributing such money or property directly to the beneficiary or applying it for the beneficiary's benefit, or by:
(A) Distributing it to the beneficiary's conservator or, if the beneficiary does not have a conservator, the beneficiary's guardian;
(B) Distributing it to the beneficiary's custodian under “The Georgia Transfers to Minors Act” or similar state law and, for that purpose, creating a custodianship and designating a custodian;
(C) Distributing it to the beneficiary's custodial trustee under the Uniform Custodial Trust Act as enacted in another state and, for that purpose, creating a custodial trust; or
(D) Distributing it to any other person, whether or not appointed guardian or conservator by any court, who shall, in fact, have the care and custody of the person of the beneficiary.
The fiduciary shall not be under any duty to see to the application of the distributions so made if the fiduciary exercised due care in the selection of the person, including the beneficiary, to whom the payments were made; and the receipt of the person shall be full acquittance to the fiduciary;
(28) To determine:
(A) What is principal and what is income of any estate or trust and to allocate or apportion receipts and expenses, as between principal and income, in the exercise of the fiduciary's discretion and, by way of illustration and not limitation of the fiduciary's discretion, to charge premiums on securities purchased at a premium against principal or income or partly against each;
(B) Whether to apply stock dividends and other noncash dividends to income or principal or to apportion them as the fiduciary shall deem advisable; and
(C) What expenses, costs, and taxes, other than estate, inheritance, and succession taxes and other governmental charges, shall be charged against principal or income or apportioned between principal and income and in what proportions; and
(29) To make, modify, and execute contracts and other instruments, under seal or otherwise, as the fiduciary deems advisable.
(c) The exercise of a power shall be subject to the fiduciary duties prescribed by this title.
(d) If a testator incorporates by reference into a will or a probate court grants to a personal representative any or all of the powers contained in this Code section, then:
(1) As used in this Code section, the term:
(A) “Beneficiary” includes a distributee of the estate;
(B) “Trust” includes the estate held by the personal representative; and
(C) “Trustee” or “fiduciary” includes the personal representative; and
(2) A conferral upon a personal representative of the powers provided by paragraph (1) of subsection (b) of this Code section shall not authorize such personal representative to bind the estate by any warranty in any conveyance or contract in violation of subsection (a) of Code Section 53-8-14.
A corporate fiduciary, without authorization by the court, may exercise the power:
(1) To retain stock or other securities of its own issue received on the creation of the trust or later contributed to the trust, including the securities into which the securities originally received or contributed may be converted or which may be derived therefrom as a result of merger, consolidation, stock dividends, splits, liquidations, and similar procedures. The corporate fiduciary may exercise by purchase or otherwise any rights, warrants, or conversion features attaching to any such securities. The authority described in this paragraph shall:
(A) Apply to the exchange or conversion of stock or securities of the corporate fiduciary's own issue, whether or not any new stock or securities received in exchange therefor are substantially equivalent to those originally held;
(B) Apply to the continued retention of all new stock and securities resulting from merger, consolidation, stock dividends, splits, liquidations, and similar procedures and received by virtue of such conversion or exchange of stock or securities of the corporate fiduciary's own issue, whether or not the new stock or securities are substantially equivalent to those originally received by the fiduciary;
(C) Have reference, inter alia, to the exchange of such stock or securities for stock or securities of any holding company which owns stock or other interests in one or more other corporations, including the corporate fiduciary, whether the holding company is newly formed or already existing and whether or not any of the corporations own assets identical or similar to the assets of or carry on a business identical or similar to the corporation whose stock or securities were previously received by the fiduciary and the continued retention of stock or securities, or both, of the holding company; and
(D) Apply regardless of whether any of the corporations have officers, directors, employees, agents, or trustees in common with the corporation whose stock or securities were previously received by the fiduciary; and
(2) To borrow money from its own banking department for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the fiduciary shall deem advisable for the purpose of paying debts, taxes, or other charges against the estate or any trust or any part thereof, and to mortgage, pledge, or otherwise encumber such portion of the estate or any trust as may be required to secure the loan or loans; and to renew existing loans either as maker or endorser.
(a) By an expressed intention of the testator or settlor contained in a will or in a trust instrument in writing whereby an express trust is created, any or all of the powers or any portion thereof enumerated in this part, as they exist at the time of the signing of the will by the testator or at the time of the signing by the first settlor who signs the trust instrument, may be, by appropriate reference made thereto, incorporated in the will or other written instrument with the same effect as though such language were set forth verbatim in the trust instrument.
(b) At any time after the execution of a revocable trust, the settlor or anyone who is authorized by the trust instrument to modify the trust may incorporate any or all of the powers or any portion thereof enumerated in this part, as they exist at the time of the incorporation.
(c) Incorporation of one or more of the powers contained in this part, by reference to the appropriate portion of Code Section 53-12-261, shall be in addition to and not in limitation of the common-law or statutory powers of the fiduciary.
(d)(1) A provision in any will or trust instrument which incorporates powers by citation to Georgia Laws 1973, page 846; Code 1933, Section 108-1204 (Harrison); former Code Section 53-12-232 or 53-15-3; or Code Section 53-12-261, which were in effect at the time the trust was created and which was valid under the law in existence at the time the will was signed by the testator or at the time of the signing by the first settlor who signed the trust instrument shall be effective notwithstanding the subsequent repeal or amendment of such statute.
(2) A provision in any will or trust instrument which was signed by the testator or by the first settlor to sign after June 30, 1991, but before July 1, 1992, and which incorporates powers by citation to former Code Section 53-15-3 in effect on the date of such signing shall be deemed to mean and refer to the corresponding powers contained in former Code Section 53-12-232.
(e) If any or all of the powers contained in this part are incorporated by reference into a will by a testator or granted to a personal representative by a probate court, then:
(1) As used in this part, the term:
(A) “Beneficiary” includes a distributee of the estate.
(B) “Trust” includes the estate held by the personal representative; and
(C) “Trustee” or “fiduciary” includes the personal representative; and
(2) A conferral upon a personal representative of the powers provided by paragraph (1) of subsection (b) of Code Section 53-12-261 or by the corresponding provision of any statute incorporated pursuant to subsection (d) of this Code section shall not authorize such personal representative to bind the estate by any warranty in any conveyance or contract in violation of subsection (a) of Code Section 53-8-14.
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.
(a) 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.
(b) 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.
(c) 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.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) A certification of trust in recordable form may be recorded in the office of the clerk of superior court.
Whenever a bank or trust company is duly authorized to act and is acting as a fiduciary, which term shall include an executor, administrator, trustee, guardian, or conservator, and has a nominee in whose name securities, including, without limitation, bonds, stocks, notes, and other evidences of title to intangible personal property, held as a fiduciary, may be registered, it shall be lawful to register securities in the name of the nominee without mention of the fiduciary relationship in the trust instrument evidencing the securities or on the books of the issuer of the same, provided that:
(1) The records of the corporate fiduciary shall at all times clearly show that the securities are held by the corporate fiduciary in its capacity as fiduciary, together with the beneficial owner or owners thereof and all facts relating to its ownership, possession, and holding thereof; and
(2) The corporate fiduciary shall not be relieved of liability for the safe custody, control, and proper distribution of the securities by reason of the registration of same in the name of any nominee.
If two or more fiduciaries are acting jointly in reference to any securities, it shall be lawful to register the property in the name of any nominee or any joint corporate fiduciary. In the event that more than one corporate fiduciary is acting, it shall be lawful to register securities in the name of any nominee of any one of the corporate fiduciaries.
(a) Any fiduciary holding securities in its fiduciary capacity, any bank or trust company holding securities as a custodian or managing agent, and any bank or trust company holding securities as custodian for a fiduciary shall be authorized to deposit or arrange for the deposit of the securities in a clearing corporation, as defined in Article 8 of Title 11. When the securities are deposited, certificates representing securities of the same class of the same issuer may be merged and held in bulk, in the name of the nominee of the clearing corporation, with any other such securities deposited in the clearing corporation by any person, regardless of the ownership of the securities, and certificates of small denominations may be merged into one or more certificates of larger denomination. The records of the fiduciary and the records of the bank or trust company acting as custodian, as managing agent, or as custodian for a fiduciary shall at all times show the name of the party for whose account the securities are deposited. Title to the securities may be transferred by bookkeeping entry on the books of the clearing corporation without physical delivery of certificates representing the securities.
(b) A bank or trust company depositing securities pursuant to this Code section shall be subject to such rules and regulations as, in the case of state chartered institutions, the commissioner of banking and finance and, in the case of national banking associations, the comptroller of the currency may from time to time issue.
(c) A bank or trust company acting as custodian for a fiduciary, on demand by the fiduciary, shall certify in writing to the fiduciary the securities deposited by the bank or trust company in the clearing corporation for the account of the fiduciary. A fiduciary, on demand by any party to a judicial proceeding for the settlement of the fiduciary's account or on demand by the attorney for the party, shall certify in writing to the party the securities deposited by the fiduciary in the clearing corporation for its account as the fiduciary.
(d) This Code section shall apply to any fiduciary holding securities in its fiduciary capacity and to any bank or trust company holding securities as a custodian, managing agent, or custodian for a fiduciary acting on April 13, 1973, or acting thereafter, regardless of the date of the agreement, instrument, or court order by which it is appointed and regardless of whether or not the fiduciary, custodian, managing agent, or custodian for a fiduciary owns capital stock of the clearing corporation.
The trustee shall be accountable to the beneficiary for the trust property. A violation by the trustee of any duty that the trustee owes the beneficiary shall be a breach of trust.
(a) If a trustee commits a breach of trust, or threatens to commit a breach of trust, a beneficiary shall have a cause of action to seek:
(1) To recover damages;
(2) To compel the trustee to perform the trustee's duties;
(3) To require an accounting;
(4) To enjoin the trustee from committing a breach of trust;
(5) To compel the trustee to redress a breach of trust by payment of money or otherwise;
(6) To appoint a temporary trustee to take possession of the trust property and administer the trust or to suspend a trustee with or without the appointment of a temporary trustee;
(7) To remove the trustee; and
(8) To reduce or deny compensation of the trustee.
(b) When trust assets are misapplied and can be traced in the hands of persons affected with notice of the misapplication, the trust shall attach to such assets. A creditor of a trust may follow assets in the hands of beneficiaries even if they were received without notice.
(c) The remedy set forth in subsection (c) of Code Section 53-12-363 shall be the exclusive remedy for an abuse of discretion as provided in Code Sections 53-12-361 and 53-12-362.
(d) The provision of remedies for breach of trust shall not prevent resort to any other appropriate remedy provided by statute or common law.
(a) A trustee who commits a breach of trust shall be personally chargeable with any damages resulting from such breach of trust, including, but not limited to:
(1) Any loss or depreciation in value of the trust property as a result of such breach of trust, with interest;
(2) Any profit made by the trustee through such breach of trust, with interest;
(3) Any amount that would reasonably have accrued to the trust or beneficiary if there had been no breach of trust, with interest; and
(4) In the discretion of the court, expenses of litigation, including reasonable attorney's fees incurred in bringing an action on such breach or threat to commit such breach.
(b) If the trustee is liable for interest, then the amount of the liability for interest shall be the greater of:
(1) The amount of interest that accrues at the legal rate on judgments; or
(2) The amount of interest actually received.
(a) No provision in a trust instrument shall be effective to relieve the trustee of liability for a breach of trust committed in bad faith or with reckless indifference to the interests of the beneficiaries.
(b) A trustee of a revocable trust shall not be liable to a beneficiary for any act performed or omitted pursuant to written direction from a person holding the power to revoke, including a person to whom the power to revoke the trust is delegated. If the trust is revocable in part, then this subsection shall apply with respect to the interest of the beneficiary in that part of the trust property.
(a) A successor trustee shall be liable to the beneficiary for breach of trust involving acts or omissions of a predecessor trustee only if the successor trustee:
(1) Knows or reasonably should have known of a situation constituting a breach of trust committed by the predecessor trustee and the successor trustee improperly permits it to continue;
(2) Neglects to take reasonable steps to compel the predecessor to deliver the trust property to the successor trustee; or
(3) Neglects to take reasonable steps to redress a breach of trust committed by the predecessor trustee in a case where the successor trustee knows or reasonably should have known of the predecessor trustee's breach.
(b) A trustee succeeding a trustee who was also the settlor shall not be liable to the beneficiary for any action taken or omitted to be taken by the prior trustee nor shall such successor trustee have a duty to institute any action against such prior trustee or to file any claim against such prior trustee's estate for any of the prior trustee's acts or omissions as trustee. This subsection shall apply only with respect to a trust or any portion of a trust that was revocable by the settlor during the time that the settlor served as trustee and committed the act or omission.
(a) A trustee shall be liable to the beneficiary for a breach committed by a cotrustee if such trustee:
(1) Participates in a breach of trust committed by the cotrustee;
(2) Improperly delegates the administration of the trust to the cotrustee;
(3) Approves, knowingly acquiesces in, or conceals a breach of trust committed by the cotrustee;
(4) Negligently enables the cotrustee to commit a breach of trust; or
(5) Neglects to take reasonable steps to compel the cotrustee to redress a breach of trust in a case where such trustee knows or reasonably should have known of the breach of trust.
(b) If two or more cotrustees are jointly liable to the beneficiary, each cotrustee shall be entitled to contribution from the other, as determined by the degree of each cotrustee's fault.
(a) A trustee may maintain an action against a cotrustee to:
(1) Compel the cotrustee to perform duties required under the trust;
(2) Enjoin the cotrustee from committing a breach of trust; or
(3) Compel the cotrustee to redress a breach of trust committed by such cotrustee.
(b) The provision of remedies for a breach of trust shall not prevent resort to any other appropriate remedy provided by statute or common law.
(a) Unless a claim is previously barred by adjudication, consent, limitation, or otherwise, if a beneficiary has received a written report that adequately discloses the existence of a claim against the trustee for a breach of trust, the claim shall be barred as to that beneficiary unless a proceeding to assert the claim is commenced within two years after receipt of the report. A report adequately discloses existence of a claim if it provides sufficient information so that the beneficiary knows of such claim or reasonably should have inquired into the existence of such claim. If the beneficiary has not received a report which adequately discloses the existence of a claim against the trustee for a breach of trust, such claim shall be barred as to that beneficiary unless a proceeding to assert such claim is commenced within six years after the beneficiary discovered, or reasonably should have discovered, the subject of such claim.
(b) A successor trustee's claim against a predecessor trustee shall be barred unless a proceeding to assert such claim is commenced within two years after such successor trustee takes office.
(c) A trustee's claim against a cotrustee shall be barred unless a proceeding to assert such claim is commenced within two years after the date the cause of action against the cotrustee arises.
(a) A trustee shall not be personally liable on any warranty made in any conveyance unless the intention to create a personal liability is distinctly expressed.
(b) Unless otherwise provided in the contract, a trustee shall not be personally liable on contracts properly entered into in the trustee's fiduciary capacity unless the trustee fails to reveal the trustee's representative capacity in the contract.
(c) A judgment rendered in an action brought against the trust shall impose no personal liability on the trustee or the beneficiary.
(a) Any nonresident who is eligible to serve as a trustee under Code Section 53-12-201 may act as a trustee in this state pursuant to the terms of this Code section.
(b) Any nonresident trustee who acts as a trustee in this state shall be deemed to have consented to service upon the Secretary of State of any summons, notice, or process in connection with any action or proceeding in the courts of this state growing out of or based upon any act or failure to act on the part of the trustee unless the trustee shall designate as the agent for such service some person who may be found and served with notice, summons, or process in this state by a designation to be filed, from time to time, in the office of the Secretary of State, giving the name of the agent and the place in this state where the agent may be found and served.
(c) If a nonresident trustee fails to designate a person who may be found and served with summons, notice, or process in this state, service of summons, notice, or process shall be made upon such trustee by serving a copy of the petition or other pleading, with process attached thereto, on the Secretary of State. The service shall be sufficient service upon such nonresident trustee, provided that notice of the service and a copy of the petition and process is forthwith sent by registered or certified mail or statutory overnight delivery by the plaintiff or the plaintiff's agent to such trustee, in the state where such trustee resides, and the return receipt is appended to the summons or other process and filed with the summons, petition, and other papers in the court where the action is pending. The Secretary of State shall charge and collect a fee as set out in Code Section 45-13-26 for service of process on him or her under this Code section.
(a) Any foreign entity may act in this state as trustee, executor, administrator, guardian, or any other like or similar fiduciary capacity, whether the appointment is by law, will, deed, inter vivos trust, security deed, mortgage, deed of trust, court order, or otherwise without the necessity of complying with any law of this state relating to the qualification of foreign entities to do business in this state or the licensing of foreign entities to do business in this state, except as provided in this article, and notwithstanding any prohibition, limitation, or restriction contained in any other law of this state, provided only that the foreign entity is authorized to act in the fiduciary capacity in the state in which it is chartered or licensed or, if the foreign entity is a national banking association, in the state in which it has its principal place of business.
(b) Any foreign entity seeking to exercise fiduciary powers in this state, upon qualifying in this state to act in any of such fiduciary capacities, shall not be required by law to give bond, if bond is relieved by the instrument, law, or court order in which such entity has been designated to act in such fiduciary capacity.
(c) Nothing in this article shall be construed to prohibit or make unlawful any activity in this state by a bank or other entity which is not incorporated or organized under the laws of this state or by a national bank which does not have its principal place of business in this state, which activity would be lawful in the absence of this article.
A foreign entity, insofar as it acts in a fiduciary capacity in this state pursuant to this article, shall not establish or maintain in this state a place of business, branch office, or agency for the conduct in this state of business as a fiduciary unless it obtains a certificate of authority to transact business in this state as required by Article 15 of Chapter 2 of Title 14.
(a) Prior to the time when any foreign entity acts pursuant to the authority of this article in any fiduciary capacity in this state, the foreign entity shall file with the Secretary of State a verified statement which shall state:
(1) The correct name of the foreign entity;
(2) The name of the state under the laws of which it is incorporated or organized or, if the foreign entity is a national banking association, a statement of that fact;
(3) The address of its principal business office;
(4) In what fiduciary capacity it desires to act in this state;
(5) That it is authorized to act in a similar fiduciary capacity in the state in which it is chartered or licensed or, if it is a national banking association, in which it has its principal place of business;
(6) The name of the governmental entity that issued the charter or license; and
(7) The name and address of a person who may be found and served with notice, summons, or process in this state and who is designated by the foreign entity as its agent for such service.
(b) The statement provided for in subsection (a) of this Code section shall be verified by an officer of the foreign entity, and there shall be filed with it such certificates of public officials and copies of documents certified by public officials as may be necessary to show that the foreign entity is authorized to act in a fiduciary capacity similar to those in which it desires to act in this state, in the state in which it is chartered or licensed, or, if it is a national banking association, in which it has its principal place of business.
(c) Any foreign entity that acts as a trustee in this state shall be deemed to have consented to service upon the Secretary of State of any summons, notice, or process in connection with any action or proceeding in the courts of this state growing out of or based upon any act or failure to act on the part of the trustee unless the trustee shall designate as the agent for such service some person who may be found and served with notice, summons, or process in this state by a designation to be filed, from time to time, in the office of the Secretary of State, giving the name of the agent and the place in this state where the agent may be found and served.
(d) If a foreign entity fails to designate a person who may be found and served with summons, notice, or process in this state, service of summons, notice, or process shall be made upon such foreign entity by serving a copy of the petition or other pleading, with process attached thereto on the Secretary of State. The service shall be sufficient service upon such foreign entity, provided that notice of the service and a copy of the petition and process is forthwith sent by registered or certified mail or statutory overnight delivery by the plaintiff or the plaintiff's agent to such foreign entity at the address that is on file with the Secretary of State, and the return receipt is appended to the summons or other process and filed with the summons, petition, and other papers in the court where the action is pending. The Secretary of State shall charge and collect a fee as set out in Code Section 45-13-26 for service of process on him or her under this Code section.
(a) A trustee shall invest and manage trust assets as a prudent investor would by considering the purposes, provisions, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.
(b) A trustee's investment and management decisions respecting individual assets shall be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
(c) Among the factors that a trustee shall consider in investing and managing trust assets are such of the following as are relevant to the trust or its beneficiaries:
(1) General economic conditions;
(2) The possible effect of inflation or deflation;
(3) Anticipated tax consequences;
(4) The attributes of the portfolio;
(5) The expected return from income and appreciation;
(6) Needs for liquidity, regularity of income, and preservation or appreciation of capital;
(7) An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries or to the settlor;
(8) The anticipated duration of the trust; and
(9) Any special circumstances.
(d) In investing and managing trust assets, the trustee may consider the personal values of the beneficiaries, including but not limited to a desire to engage in investing strategies that align with social, political, religious, philosophical, environmental, governance, or other values or beliefs of the beneficiaries.
(e) Any determination of liability for investment performance shall consider not only the performance of a particular investment but also the performance of the portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
(f) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets.
(g) A trustee may invest in any kind of property or type of investment consistent with the standards of this article.
(h) A trustee who has special investment skills or expertise shall have a duty to use those special skills or expertise. A trustee who is named trustee in reliance upon such trustee's representation that such trustee has special investment skills or expertise shall be held liable for failure to make use of such degree of skill or expertise.
(i) In investing and managing trust assets, a trustee may only incur costs that are appropriate and reasonable in relation to the assets, the purposes of the trust, and the skills of the trustee.
(j) A trustee that is a bank or trust company shall not be precluded from acquiring and retaining the securities of or other interests in an investment company or investment trust because the bank or trust company or an affiliate provides services to the investment company or investment trust as investment adviser, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and receives compensation for such services, if the costs are otherwise appropriate and reasonable in relation to the assets.
A trustee shall reasonably manage the risk of concentrated holdings of assets in a trust by diversifying or by using other appropriate mechanisms, except as otherwise provided in this Code section, as follows:
(1) The duty imposed by this Code section shall not apply if the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without complying with the duty;
(2) The trustee shall not be liable for failing to comply with the duty imposed by this Code section to the extent that the terms of the trust instrument limit or waive the duty; and
(3) Except as provided in this paragraph, the duty imposed by this Code section shall apply on or after January 1, 2011. With respect to any trust that is or becomes irrevocable before January 1, 2011, the duty imposed by this Code section shall not apply:
(A) To the trust to the extent such trust instrument directs or permits the trustee to retain, invest, exchange, or reinvest assets without regard to any duty to diversify, without the need to diversify or create a diversity of investments, or without liability for either depreciation or failing to diversify, or contains other similar language expressing a settlor's intent to provide similar discretion to the trustee; or
(B) Absent gross neglect, with respect to an asset that was transferred to the trustee of such trust by any settlor or gratuitous transferor.
Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets in order to bring the trust portfolio into compliance with the purposes, provisions, distributions requirements, and other circumstances of the trust and with the requirements of this article.
Compliance with the investment rules of this part shall be determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight.
The following terminology or comparable language in the provisions of a trust, unless otherwise limited or modified, shall authorize any investment or strategy permitted under this article and Article 17 of this chapter: “investments permissible by law for investment of trust funds,” “legal investments,” “authorized investments,” “using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital,” “prudent man rule,” “prudent trustee rule,” “prudent person rule,” and “prudent investor rule.”
(a) A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:
(1) Selecting an agent;
(2) Establishing the scope and terms of the delegation consistent with the purposes and provisions of the trust; and
(3) Reviewing periodically the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
(b) In performing a delegation function, an agent shall owe a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
(c) A trustee who complies with the requirements of subsection (a) of this Code section, and who takes reasonable steps to compel an agent to whom the function was delegated to redress a breach of duty to the trust, shall not be liable to the beneficiaries of the trust or to the trust for the decisions or actions of the agent to whom the function was delegated.
(d) By accepting the delegation of a trust function from the trustee of a trust that is subject to the laws of this state, an agent shall waive the defense of lack of personal jurisdiction and shall submit to the jurisdiction of this state.
In allocating receipts and disbursements to or between principal and income and with respect to any matter within the scope of Article 17 of this chapter:
(1) A trustee shall administer a trust in accordance with the governing trust instrument, even if there is a different provision in Article 17 of this chapter;
(2) A trustee may administer a trust by the exercise of a discretionary power of administration regarding a matter within the scope of Article 17 of this chapter given to the trustee by the governing trust instrument, even if the exercise of the power produces a result different from a result required or permitted by Article 17 of this chapter. No inference that the trustee has improperly exercised the discretionary power shall arise from the fact that the trustee has made an allocation contrary to a provision of Article 17 of this chapter;
(3) A trustee shall administer a trust in accordance with Article 17 of this chapter if the governing trust instrument does not contain a different provision or does not give the trustee a discretionary power of administration regarding a matter within the scope of Article 17 of this chapter; and
(4) A trustee shall add a receipt or charge a disbursement to principal to the extent that the governing trust instrument and Article 17 of this chapter do not provide a rule for allocating the receipt or disbursement to or between principal and income.
(a) Subject to subsections (c) and (f) of this Code section, a trustee may adjust between principal and income by allocating an amount of income to principal or an amount of principal to income to the extent the trustee considers appropriate if:
(1) The governing trust instrument describes what may or shall be distributed to a beneficiary by referring to the trust's income; and
(2) The trustee determines, after applying the rules in Code Section 53-12-360, that the trustee is unable to comply with Code Section 53-12-247.
(b) In deciding whether and to what extent to exercise the power conferred by subsection (a) of this Code section, a trustee may consider, among other things:
(1) The size of the trust;
(2) The nature and estimated duration of the trust;
(3) The liquidity and distribution requirements of the trust;
(4) The needs for regular distributions and preservation and appreciation of capital;
(5) The expected tax consequences of an adjustment;
(6) The net amount allocated to income under this chapter and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;
(7) The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, and tangible and intangible personal property or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor or testator;
(8) To the extent reasonably known to the trustee, the needs of the beneficiaries for present and future distributions authorized or required by the governing trust instrument;
(9) Whether and to what extent the governing trust instrument gives the trustee the power to invade principal or accumulate income or prohibits the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income;
(10) The intent of the settlor or testator; and
(11) The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation on the trust.
(c) A trustee shall not make an adjustment under this Code section:
(1) If the adjustment would change the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
(2) If the adjustment is from trust funds which are permanently set aside for charitable purposes under the governing trust instrument and for which a federal charitable, estate, or gift tax deduction has been taken, unless both income and principal are so set aside;
(3) If:
(A) Possessing or exercising the power to make an adjustment would cause an individual to be treated as the owner of all or part of the trust for federal income tax purposes; and
(B) The individual would not be treated as the owner if the trustee did not possess the power to make an adjustment;
(4) If:
(A) Possessing or exercising the power to make an adjustment would cause all or part of the trust assets to be subject to federal estate, gift, or generation-skipping transfer tax with respect to an individual; and
(B) The assets would not be subject to federal estate, gift, or generation-skipping tax with respect to the individual if the trustee did not possess the power to make an adjustment;
(5) If the trustee is a beneficiary of the trust; or
(6) If the trust has been converted under Code Section 53-12-362.
(d) If paragraph (3), (4), or (5) of subsection (c) of this Code section applies to a trustee and there is more than one trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee is prohibited by the governing trust instrument.
(e)(1) If paragraph (2) of this subsection applies, a trustee may release:
(A) The entire power conferred by subsection (a) of this Code section;
(B) The power to adjust from income to principal; or
(C) The power to adjust from principal to income.
(2) A release under paragraph (1) of this subsection shall be permissible if:
(A) The trustee is uncertain about whether possessing or exercising the power will cause a result described in paragraphs (1) through (6) of subsection (c) of this Code section; or
(B) The trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (c) of this Code section.
(3) The release may be permanent or for a specified period, including a period measured by the life of an individual.
(f) A governing trust instrument which limits the power of a trustee to make an adjustment between principal and income shall not affect the application of this Code section unless it is clear from the governing trust instrument that it is intended to deny the trustee the power of adjustment conferred by subsection (a) of this Code section.
(a) Unless expressly prohibited by the trust instrument, a trustee may release the power to adjust under Code Section 53-12-361 and convert a trust into a unitrust as described in this Code section if:
(1) The trustee determines that the conversion will enable such trustee to better carry out the intent of the settlor or testator and the purposes of the trust;
(2) The trustee gives written notice of such trustee's intention to release the power to adjust and to convert the trust into a unitrust and of how the unitrust will operate, including what initial decisions such trustee will make under this Code section, to:
(A) The settlor, if living;
(B) All living persons who are currently receiving or eligible to receive distributions of income of the trust; and
(C) Without regard to the exercise of any power of appointment, all living persons who would receive principal of the trust if the trust were to terminate at the time of the giving of such notice and all living persons who would receive or be eligible to receive distributions of income or principal of the trust if the interests of all of the beneficiaries currently eligible to receive income under subparagraph (B) of this paragraph were to terminate at the time of the giving of such notice.
(3) At least one person receiving notice under each of subparagraphs (B) and (C) of paragraph (2) of this subsection is legally competent; and
(4) No beneficiary objects to the conversion to a unitrust in a writing delivered to the trustee within 60 days of the mailing of the notice under paragraph (2) of this subsection.
(b)(1) The trustee may petition the superior court to order the conversion to a unitrust.
(2) A beneficiary may request a trustee to convert to a unitrust. If the trustee does not convert, the beneficiary may petition the superior court to order the conversion.
(3) The court shall order conversion if the court concludes that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust.
(c) In deciding whether to exercise the power to convert to a unitrust as provided by subsection (a) of this Code section, a trustee may consider, among other things:
(1) The size of the trust;
(2) The nature and estimated duration of the trust;
(3) The liquidity and distribution requirements of the trust;
(4) The needs for regular distributions and preservation and appreciation of capital;
(5) The expected tax consequences of the conversion;
(6) The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, and tangible and intangible personal property or real property; and the extent to which an asset is used by a beneficiary;
(7) To the extent reasonably known to the trustee, the needs of the beneficiaries for present and future distributions authorized or required by the governing trust instrument;
(8) Whether and to what extent the governing trust instrument gives the trustee the power to invade principal or accumulate income or prohibits the trustee from invading principal or accumulating income and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income; and
(9) The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation on the trust.
(d) After a trust is converted to a unitrust:
(1) The trustee shall follow an investment policy seeking a total return for the investments held by the trust, whether the return is to be derived from:
(A) Appreciation of capital;
(B) Earnings and distributions from capital; or
(C) Both appreciation of capital and earnings and distributions from capital;
(2) The trustee shall make regular distributions in accordance with the governing trust instrument construed in accordance with the provisions of this Code section;
(3) The term “income” in the governing trust instrument shall mean an annual unitrust distribution equal to 4 percent of the net fair market value of the trust's assets or the payout percentage ordered under paragraph (1) of subsection (g) of this Code section, whether such assets would be considered income or principal under other provisions of this article and Article 17 of this chapter, averaged over the lesser of:
(A) The three preceding years; or
(B) The period during which the trust has been in existence;
(4) The trustee can determine the fair market value of the property in the trust by appraisal or other reasonable method or estimate; and
(5) The fair market value of the trust property shall not include the value of any residential property or any tangible personal property that, as of the first business day of the current valuation year, one or more of the current beneficiaries of the trust have or had the right to occupy or have had the right to possess or control, other than in his or her capacity as trustee of the trust, and instead the right of occupancy or the right to possession or control shall be deemed to be the unitrust amount with respect to such residential property.
(e) The trustee may in the trustee's discretion from time to time determine:
(1) The effective date of a conversion to a unitrust;
(2) The provisions for prorating a unitrust distribution for a short year in which a beneficiary's right to payments commences or ceases;
(3) The frequency of unitrust distributions during the year;
(4) The effect of other payments from or contributions to the trust on the trust's valuation;
(5) Whether to value the trust's assets annually or more frequently;
(6) What valuation dates to use;
(7) How frequently to value nonliquid assets and whether to estimate their value; and
(8) Any other matters necessary for the proper functioning of the unitrust.
(f)(1) Expenses which would be deducted from income if the trust were not a unitrust shall not be deducted from the unitrust distribution.
(2) The unitrust distribution shall be paid from net income, as such term would be determined if the trust were not a unitrust. To the extent net income is insufficient, the unitrust distribution shall be paid from net realized short-term capital gains. To the extent income and net realized short-term capital gains are insufficient, the unitrust distribution shall be paid from net realized long-term capital gains. To the extent income and net realized short-term and long-term capital gains are insufficient, the unitrust distribution shall be paid from the principal of the trust.
(g) The trustee or, if the trustee declines to do so, a beneficiary may petition the superior court to:
(1) Select a payout percentage different from 4 percent but not lower than 3 percent or higher than 5 percent;
(2) Provide for a distribution of net income, as would be determined if the trust were not a unitrust, in excess of the unitrust distribution if such distribution is necessary to preserve a tax benefit;
(3) Average the valuation of the trust's net assets over a period other than three years; or
(4) Reconvert from a unitrust. Upon a reconversion, the power to adjust under Code Section 53-12-361 shall be revived.
(h) A conversion to a unitrust shall not affect a provision in the governing trust instrument directing or authorizing the trustee to distribute principal or authorizing a beneficiary to withdraw a portion or all of the principal.
(i) A trustee shall not convert a trust into a unitrust:
(1) If payment of the unitrust distribution would change the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
(2) If the unitrust distribution would be made from trust funds which are permanently set aside for charitable purposes under the governing trust instrument and for which a federal charitable, estate, or gift tax deduction has been taken, unless both income and principal are so set aside;
(3) If:
(A) Possessing or exercising the power to convert would cause an individual to be treated as the owner of all or part of the trust for federal income tax purposes; and
(B) The individual would not be treated as the owner if the trustee did not possess the power to convert; or
(4) If:
(A) Possessing or exercising the power to convert would cause all or part of the trust assets to be subject to federal estate, gift, or generation-skipping transfer tax with respect to an individual; and
(B) The assets would not be subject to federal estate, gift, or generation-skipping transfer tax with respect to the individual if the trustee did not possess the power to convert.
(j)(1) If paragraph (3) or (4) of subsection (i) of this Code section applies to a trustee and there is more than one trustee, a cotrustee to whom such provision does not apply may convert the trust unless the exercise of the power by the remaining trustee is prohibited by the governing trust instrument.
(2) If paragraph (3) or (4) of subsection (i) of this Code section applies to all the trustees, the trustees may petition the superior court to direct a conversion.
(k)(1) A trustee may release the power conferred by subsection (a) of this Code section to convert to a unitrust if:
(A) The trustee is uncertain about whether possessing or exercising the power to convert will cause a result described in paragraph (3) or (4) of subsection (i) of this Code section; or
(B) The trustee determines that possessing or exercising the power to convert will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (i) of this Code section.
(2) The release of the power to convert may be permanent or for a specified period, including a period measured by the life of an individual.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(a) The following provisions shall apply to a trust which by its governing trust instrument requires the distribution at least annually of a unitrust amount equal to a fixed percentage of not less than 3 percent nor more than 5 percent per year of the net fair market value of the trust's assets, valued at least annually, such trust to be referred to as an “express total return unitrust”:
(1) The unitrust amount may be determined by reference to the net fair market value of the trust's assets in one year or more than one year;
(2) Distribution of such a fixed percentage unitrust amount shall be considered a distribution of all of the income of the total return unitrust and shall not be considered a fundamental departure from applicable state law, regardless of whether the total return unitrust is created and governed by Code Section 53-12-362 or by the provisions of the governing trust instrument;
(3) Such a distribution of the fixed percentage of not less than 3 percent nor more than 5 percent shall be considered a reasonable apportionment of the total return of a total return unitrust;
(4) The governing trust instrument may grant discretion to the trustee to adopt a consistent practice of treating capital gains as part of the unitrust distribution, to the extent that the unitrust distribution exceeds the net accounting income, or it may specify the ordering of such classes of income;
(5) Unless the trust provisions specifically provide otherwise, or grant discretion to the trustee as set forth in paragraph (4) of this subsection, a distribution of the unitrust amount shall be considered to have been made from the following sources in order of priority:
(A) From net accounting income determined as if the trust were not a unitrust;
(B) From ordinary income not allocable to net accounting income;
(C) From net realized short-term capital gains;
(D) From net realized long-term capital gains; and
(E) From the principal of the trust estate; and
(6) The trust document may provide that assets used by the trust beneficiary, such as a residence property or tangible personal property, may be excluded from the net fair market value for computing the unitrust amount. Such use may be considered equivalent to the income or unitrust amount.
(b) A trust which provides for a fixed percentage payout in excess of 5 percent per year shall be considered to have paid out all of the income of the total return unitrust and to have paid out principal of such trust to the extent that the fixed percentage payout exceeds 5 percent per year.
(c) This Code section shall be effective for trusts established and wills executed on or after July 1, 2010.
This article shall be known and may be cited as the “Georgia Principal and Income Act.”
As used in this article, the term:
(1) “Accounting period” means a calendar year unless another 12 month period is selected by a fiduciary. Such term includes a portion of a calendar year or other 12 month period that begins when an income interest begins or ends when an income interest ends.
(2) “Beneficiary” includes, in the case of a decedent's estate, an heir and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
(3) “Fiduciary” means a personal representative or a trustee. Such term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function.
(4) “Income” means money or property that a fiduciary receives as current return from a principal asset. Such term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in Part 4 of this article.
(5) “Income beneficiary” means a person to whom net income of a trust is or may be payable.
(6) “Income interest” means the right of an income beneficiary to receive all or part of net income, whether the trust provisions require it to be distributed or authorize it to be distributed in the trustee's discretion.
(7) “Mandatory income interest” means the right of an income beneficiary to receive net income that the trust provisions require the fiduciary to distribute.
(8) “Net income” means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this article to or from income during the period.
(9) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; a governmental subdivision, agency, or instrumentality; a public corporation; or any other legal or commercial entity.
(10) “Principal” means property held in trust for distribution to a remainder beneficiary when the trust terminates.
(11) “Terms of the trust” means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding.
(12) “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.
(a) If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends, and no interest is provided for by the terms of the trust, the pecuniary amount usually bears interest at the legal rate after the expiration of 12 months from the date the income interest terminates.
(b) The general rule in subsection (a) of this Code section shall be subservient to the equity and necessity of a particular case.
Expenses incurred in connection with the settlement of a decedent's estate or the winding up of a terminating income interest, including interest and penalties concerning taxes, fees of attorneys and personal representatives and trustees, and court costs, may be charged against the principal or income in the discretion of the personal representative or trustee.
(a) An income beneficiary shall be entitled to net income from the date on which the income interest begins. An income interest shall begin on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.
(b) An asset shall become subject to a trust:
(1) On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor's life;
(2) On the date of a testator's death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator's estate; or
(3) On the date of an individual's death in the case of an asset that is transferred to a fiduciary by a third party because of such individual's death.
(c) An asset shall become subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (d) of this Code section, even if there is an intervening period of administration to wind up the preceding income interest.
(d) An income interest shall end on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.
(a) A trustee shall allocate an income receipt or disbursement to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.
(b) A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement shall be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins shall be allocated to principal, and the balance shall be allocated to income.
(c) An item of income or an obligation shall be due on the date the payor is required to make a payment. If a payment date is not stated, there shall be no due date for the purposes of this Code section. Distributions to shareholders or other owners from an entity to which Code Section 53-12-410 applies shall be deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date shall be periodic for receipts or disbursements that have to be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.
(a) As used in this Code section, the term “undistributed income” means net income received before the date on which an income interest ends. Such term shall not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.
(b) When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than 5 percent of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked shall be added to principal.
(c) When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the trust's assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements.
(a) As used in this Code section, the term “entity” means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate to which Code Section 53-12-411 applies, a business or activity to which Code Section 53-12-412 applies, or an asset-backed security to which Code Section 53-12-431 applies.
(b) Except as otherwise provided in this Code section, a trustee shall allocate to income money received from an entity.
(c) A trustee shall allocate the following receipts from an entity to principal:
(1) Property other than money;
(2) Money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity;
(3) Money received in total or partial liquidation of the entity; and
(4) Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.
(d) Money shall be received in partial liquidation:
(1) To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or
(2) If the total amount of money and property received in a distribution or series of related distributions is greater than 20 percent of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt.
(e) Money shall not be received in partial liquidation, nor shall it be taken into account under paragraph (2) of subsection (d) of this Code section, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.
(f) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors.
A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest and shall allocate to principal an amount received as a distribution of principal from such trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such trust to a trustee, Code Section 53-12-410 or 53-12-431 shall apply to a receipt from the trust.
(a) If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust's general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.
(b) A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts shall be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust's general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.
(c) Activities for which a trustee may maintain separate accounting records shall include:
(1) Retail, manufacturing, service, and other traditional business activities;
(2) Farming;
(3) Raising and selling livestock and other animals;
(4) Management of rental properties;
(5) Extraction of minerals and other natural resources;
(6) Timber operations; and
(7) Activities to which Code Section 53-12-430 applies.
A trustee shall allocate to principal:
(1) To the extent not allocated to income under this article, assets received from a transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating income interest, or a payor under a contract naming the trust or its trustee as beneficiary;
(2) Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to the provisions of this article;
(3) Amounts recovered from third parties to reimburse the trust because of disbursements described in paragraph (7) of subsection (a) of Code Section 53-12-451 or for other reasons to the extent not based on the loss of income;
(4) Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest shall be income;
(5) Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and
(6) Other receipts as provided in this article.
To the extent that a trustee accounts for receipts from rental property pursuant to this Code section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, shall be added to principal and held subject to the terms of the lease and shall not be available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to such amount.
(a) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, shall be allocated to income without any provision for amortization of premium.
(b) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust shall be allocated to income.
(c) This Code section shall not apply to an obligation to which Code Section 53-12-425 through 53-12-428, 53-12-430, or 53-12-431 applies.
(a) Except as otherwise provided in subsection (b) of this Code section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income and to principal if the premiums are paid from principal.
(b) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to Code Section 53-12-412, loss of profits from a business.
(c) This Code section shall not apply to a contract to which Code Section 53-12-425 applies.
If a trustee determines that an allocation between principal and income required by Code Sections 53-12-425 through 53-12-428 or Code Section 53-12-431 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in Code Section 53-12-361 applies to the allocation. Such power may be exercised by a cotrustee in the circumstances described in Code Section 53-12-361 and may be released for the reasons and in the manner described in such Code section. An allocation shall be presumed to be insubstantial if:
(1) The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than 10 percent; or
(2) The value of the asset producing the receipt for which the allocation would be made is less than 10 percent of the total value of the trust's assets at the beginning of the accounting period.
(a) As used in this Code section, the term:
(1) “Payment” means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payor in exchange for future payments. Such term includes a payment made in money or property from the payor's general assets or from a separate fund created by the payor. Such term also includes any payment from a separate fund, regardless of the reason for the payment.
(2) “Separate fund” includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan.
(b) To the extent that a payment is characterized as interest or a dividend or a payment made in lieu of interest or a dividend, a trustee shall allocate it to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.
(c) If no part of a payment is characterized as interest, a dividend, or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income 10 percent of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment shall not be required to be made to the extent that it is made because the trustee exercises a right of withdrawal.
(d) Except as otherwise provided in subsection (e) of this Code section, subsections (f) and (g) of this Code section shall apply, and subsections (b) and (c) of this Code section shall not apply, in determining the allocation of a payment made from a separate fund to:
(1) A trust to which an election to qualify for a marital deduction under Section 2056(b)(7) of the federal Internal Revenue Code of 1986 has been made; or
(2) A trust that qualifies for the marital deduction under Section 2056(b)(5) of the federal Internal Revenue Code of 1986.
(e) Subsections (d), (f), and (g) of this Code section shall not apply if and to the extent that the series of payments would, without the application of subsection (d) of this Code section, qualify for the marital deduction under Section 2056(b)(7)(C) of the federal Internal Revenue Code of 1986.
(f) A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a trust subject to this article. Upon request of the surviving spouse, the trustee shall demand of the person administering the separate fund that this internal income be distributed to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to the surviving spouse. The trustee shall allocate the balance to principal. Upon request of the surviving spouse, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period.
(g) If a trustee cannot determine the internal income of a separate fund but can determine the value of such separate fund, the internal income of such separate fund shall be deemed to be equal to 4 percent of the fund's value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund's value, the internal income of the fund shall be deemed to equal the product of the interest rate and the present value of the expected future payments, as determined under Section 7520 of the federal Internal Revenue Code of 1986 for the month preceding the accounting period for which the computation is made.
(h) This Code section shall not apply to payments to which Code Section 53-12-426 applies.
(a) As used in this Code section, the term “liquidating asset” means an asset whose value will diminish or terminate because such asset is expected to produce receipts for a period of limited duration. Such term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. Such term shall not include a payment subject to Code Section 53-12-425, resources subject to Code Section 53-12-427, timber subject to Code Section 53-12-428, an activity subject to Code Section 53-12-430, an asset subject to Code Section 53-12-431, or any asset for which the trustee establishes a reserve for depreciation under Code Section 53-12-452.
(b) A trustee shall allocate to income 10 percent of the receipts from a liquidating asset and the balance to principal.
(a) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this Code section, the trustee shall allocate them as follows:
(1) If received as nominal delay rental or nominal annual rent on a lease, a receipt shall be allocated to income;
(2) If received from a production payment, a receipt shall be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance shall be allocated to principal;
(3) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, 90 percent shall be allocated to principal and the balance to income; and
(4) If an amount is received from a working interest or any other interest not provided for in paragraph (1), (2), or (3) of this subsection, 90 percent of the net amount received shall be allocated to principal and the balance to income.
(b) An amount received on account of an interest in water that is renewable shall be allocated to income. If the water is not renewable, 90 percent of the amount shall be allocated to principal and the balance to income.
(c) This Code section shall apply whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.
(d) If a trust owns an interest in minerals, water, or other natural resources on July 1, 2010, the trustee may allocate receipts from the interest as provided in this Code section or in the manner used by the trustee before July 1, 2010. If the trust acquires an interest in minerals, water, or other natural resources after July 1, 2010, the trustee shall allocate receipts from the interest as provided in this Code section.
(a) To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this Code section, the trustee shall allocate the net receipts:
(1) To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;
(2) To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;
(3) To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust by determining the amount of timber removed from the land under the lease or contract and applying the rules in paragraphs (1) and (2) of this subsection; or
(4) To principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to paragraph (1), (2), or (3) of this subsection.
(b) In determining net receipts to be allocated pursuant to subsection (a) of this Code section, a trustee shall deduct and transfer to principal a reasonable amount for depletion.
(c) This Code section shall apply whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.
(d) If a trust owns an interest in timberland on July 1, 2010, the trustee may allocate net receipts from the sale of timber and related products as provided in this Code section or in the manner used by the trustee before July 1, 2010. If the trust acquires an interest in timberland after July 1, 2010, the trustee shall allocate net receipts from the sale of timber and related products as provided in this Code section.
(a) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under Code Section 53-12-361 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by Code Section 53-12-361. The trustee may decide which action or combination of actions to take.
(b) In cases not governed by subsection (a) of this Code section, proceeds from the sale or other disposition of an asset shall be principal without regard to the amount of income the asset produces during any accounting period.
(a) As used in this Code section, the term “derivative” means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.
(b) To the extent that a trustee does not account under Code Section 53-12-412 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.
(c) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option shall be allocated to principal. An amount paid to acquire the option shall be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, shall be allocated to principal.
(a) As used in this Code section, the term “asset-backed security” means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. Such term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. Such term shall not include an asset to which Code Section 53-12-410 or 53-12-425 applies.
(b) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payor identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
(c) If a trust receives one or more payments in exchange for the trust's entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust's interest in the asset-backed security over more than one accounting period, the trustee shall allocate 10 percent of the payment to income and the balance to principal.
(a) A trustee shall make the following disbursements from income:
(1) One-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;
(2) One-half of all court costs, attorney's fees, and other fees and expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;
(3) All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and court costs, attorney's fees, and other fees and expenses of a proceeding or other matter that concerns primarily the income interest; and
(4) Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.
(b) Any of the above disbursements made in connection with judicial proceedings may be varied by the order of the court.
(c) All other disbursements shall be made from principal.
(a) A trustee shall make the following disbursements from principal:
(1) The remaining one-half of the disbursements described in paragraphs (1) and (2) of subsection (a) of Code Section 53-12-450;
(2) All of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination and disbursements made to prepare property for sale;
(3) Payments on the principal of a trust debt;
(4) Court costs, attorney's fees, and other fees and expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;
(5) Premiums paid on a policy of insurance not described in paragraph (4) of subsection (a) of Code Section 53-12-450, of which the trust is the owner and beneficiary;
(6) Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and
(7) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters.
(b) Any of the disbursements provided for in subsection (a) of this Code section made in connection with judicial proceedings may be varied by the order of the court.
(c) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of such obligation.
(a) As used in this Code section, the term “depreciation” means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.
(b) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation but shall not transfer any amount for depreciation:
(1) Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
(2) During the administration of a decedent's estate; or
(3) Under this Code section if the trustee is accounting under Code Section 53-12-412 for the business or activity in which the asset is used.
(c) An amount transferred to principal need not be held as a separate fund.
Wherever a charge that is properly allocable to income has been made or is expected to be made from principal because of the unusually large nature of the charge or otherwise, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
(a) A tax required to be paid by a trustee based on receipts allocated to income shall be paid from income.
(b) A tax required to be paid by a trustee based on receipts allocated to principal shall be paid from principal, even if the tax is called an income tax by the taxing authority.
(c) A tax required to be paid by a trustee on the trust's share of an entity's taxable income shall be paid:
(1) From income to the extent that receipts from the entity are allocated only to income;
(2) From principal to the extent that receipts from the entity are allocated only to principal;
(3) Proportionately from principal and income to the extent that receipts from the entity are allocated to both income and principal; and
(4) From principal to the extent that the tax exceeds the total receipts from the entity.
(d) After applying subsections (a) through (c) of this Code section, the trustee shall adjust income or principal receipts to the extent that its taxes are reduced because it receives a deduction for payments made to a beneficiary.
(a) A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from:
(1) Elections and decisions, other than those described in subsection (b) of this Code section, that the fiduciary makes from time to time regarding tax matters;
(2) An income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or
(3) The ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary.
(b) If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust, or beneficiary are decreased, each estate, trust, or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement shall equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust, or beneficiary whose income taxes are reduced shall be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.
As used in this article, the term:
(1) “Directed trustee” means a trustee that is subject to a trust director's power of direction.
(2) “Power of appointment” means a power that enables a person, acting in a nonfiduciary capacity, to:
(A) Designate a recipient of either an ownership interest in or another power of appointment over trust property;
(B) Rescind or terminate either an ownership interest in or another power of appointment over trust property; and
(C) Determine when a beneficiary shall have the rights granted under Code Sections 53-12-242 and 53-12-243 or similar rights granted under the governing instrument.
(3) “Power of direction” means a power over a trust granted to a person by the trust instrument to the extent the power is exercisable in a capacity other than as a trustee. Such term includes a power over the administration of the trust or the investment, management, or distribution of the trust property; a power to consent to a trustee's actions, whether through exercise of an affirmative power to consent or through nonexercise of a veto power over a trustee's actions, where a trustee may not act without such consent; and all further powers appropriate to the exercise or nonexercise of such powers held by the trust director pursuant to subsection (a) of Code Section 53-12-502. Such term shall exclude the powers described in subsection (b) of Code Section 53-12-501.
(4) “Trust director” means a person that is granted a power of direction by a trust to the extent the power is exercisable in a capacity other than as a trustee, regardless of whether the trust instrument refers to such person as a trust director and regardless of whether the person is a beneficiary or settlor of the trust.
(a) This article shall apply when the trust instrument evidences the settlor's intent to provide for the office and function of a trust director, regardless of the terms used to describe such office and functions.
(b) This article shall not apply to:
(1) A power of appointment;
(2) A power to appoint or remove a trustee or trust director;
(3) A power of a settlor to revoke the trust or amend the trust instrument;
(4) A power of a beneficiary over a trust to the extent the exercise or nonexercise of the power affects the beneficial interest of the beneficiary or a person represented by the beneficiary under Code Section 53-12-8 with respect to the exercise or nonexercise of the power; or
(5) A power over a trust if both:
(A) The trust instrument provides such power is held in a nonfiduciary capacity; and
(B) Such power is held in a nonfiduciary capacity to achieve the settlor's tax objectives.
(c) Except as otherwise provided in the trust instrument, for purposes of this Code section a power granted to a person to designate a recipient of an ownership interest in or power over trust property that is exercisable in a capacity other than as a trustee is a power of appointment and not a power of direction.
(a) Except as otherwise provided in this Code section, a trust instrument may grant powers of direction to a trust director.
(b) Except as otherwise provided in the trust instrument, when a trust instrument grants powers of direction to a trust director, the trust director shall have any further powers appropriate to the exercise or nonexercise of the powers of direction.
(c) A trust director shall have the same power to employ and compensate persons, subject to the same limitations, that a trustee has under paragraph (23) of subsection (b) of Code Section 53-12-261.
(d) The powers of direction of a trust director who is also a beneficiary shall be subject to the limitations of Code Section 53-12-270.
(e) In the case of a power to modify the trust:
(1) The duties or liabilities of a trustee may not be enlarged without the trustee's express consent; and
(2) A trustee shall not be liable for failing to act in accordance with a modification or termination of a trust of which the trustee had no notice.
(a) Except as otherwise provided in this article, with respect to a power of direction, a trust director shall have the same fiduciary duty and liability in the exercise or nonexercise of the power of direction as a trustee in a like position and under similar circumstances.
(b) Where a trust director individually holds a power of direction, the trust director shall not have the liability of a cotrustee, whether under Code Section 53-12-305 or otherwise, with respect to a trustee or other trust director. Where a trust director holds a power of direction jointly with a trustee or other trust director, the trust director shall have the liability of a cotrustee, whether under Code Section 53-12-305 or otherwise, with respect to a trustee or other trust director regarding the actions of that trustee or other trust director that are within the scope of the jointly held power.
(c) Except as otherwise provided in the trust instrument, a trust director shall not have the duties imposed by Code Section 53-12-242 and subsection (b) of Code Section 53-12-243.
(d) Without limiting the scope of subsection (a) of this Code section:
(1) The trust instrument may vary a trust director's duty or liability to the same extent the trust instrument could vary the duty or liability of a trustee in a like position and under similar circumstances;
(2) An action against a trust director for breach of trust must be commenced within the same limitation period as under Code Section 53-12-307 for an action for breach of trust against a trustee in a like position and under similar circumstances; and
(3) A report or accounting shall have the same effect on the limitation period for an action against a trust director for breach of trust that the report or accounting would have under Code Section 53-12-307 in an action for breach of trust against a trustee in a like position and under similar circumstances.
(e) A trust instrument may make the existence of a trust director's power of direction contingent upon the occurrence of certain events, including a request to the trust director from a beneficiary or other similar party. A trust instrument may also provide that a trust director's power of direction terminates or is rescinded upon the occurrence of certain events, including but not limited to the passage of a specified period of time after a request. For purposes of Code Section 53-12-501, when a power of direction is contingent upon a request to a trust director from a person identified in the trust instrument, such person shall be deemed to hold a power of appointment.
(f) A trust instrument may empower a trust director to delegate a power of direction to a trustee and provide that, upon written acceptance of such delegation by the trustee, the trustee shall assume the fiduciary duties and liabilities conferred by the power of direction until such time as the trust director or trustee terminates the delegation by written notice. Except as otherwise provided in the trust instrument, during the time a power of direction is delegated in accordance with this subsection, the trust director making such delegation shall not be subject to a fiduciary obligation to monitor the trustee's exercise or nonexercise of the delegated power.
(g) Subject to subsection (j) of this Code section, a trust director shall:
(1) Keep trustees and other trust directors reasonably informed of the exercise or nonexercise of the trust director's power of direction to the extent such exercise or nonexercise is relevant to the party's powers and duties regarding the trust; and
(2) Respond to reasonable requests from trustees and other trust directors for information to the extent such information is relevant to the party's powers and duties regarding the trust.
(h) A trust director acting in reliance on information provided by a trustee or another trust director shall not be liable for a breach of trust to the extent the breach resulted from such reliance, unless the trust director acts in bad faith.
(i) Except as otherwise provided in the trust instrument, if a trust director is licensed, certified, or otherwise authorized or permitted by law other than this article to provide health care in the ordinary course of the trust director's business or practice of a profession, to the extent the trust director acts in such capacity, the trust director shall have no duty or liability under this article.
(j)(1) Except as otherwise provided in the trust instrument, a trust director shall not have a duty to:
(A) Monitor a trustee or another trust director regarding matters outside the scope of the trust director's powers of direction; or
(B) Inform or give advice to a settlor, beneficiary, trustee, or another trust director concerning an instance in which the director might have acted differently from a trustee or another trust director.
(2) By taking one of the actions described in paragraph (1) of this subsection, a trust director does not assume any of the duties excluded by this subsection.
(k) A trust instrument may impose a duty or liability on a trust director in addition to the duties and liabilities under this Code section.
(l) A trust director that has reasonable doubt about a duty imposed by this Code section may petition the court for instructions.
(m) A trust director shall be subject to the same rules as a trustee in a like position and under similar circumstances in the exercise or nonexercise of a power of direction regarding:
(1) A payback provision in the trust necessary to comply with the reimbursement requirements of Medicaid law in Section 1917 of the Social Security Act, 42 U.S.C. Section 1396p(d)(4)(A), as amended, and regulations issued thereunder; and
(2) A charitable interest in the trust.
(a) Unless compliance by the directed trustee would clearly constitute an act committed in bad faith on the part of the directed trustee, a directed trustee shall take reasonable action to comply with a trust director's exercise or nonexercise of a power of direction and shall not be liable for such action. A directed trustee must not comply with a trust director's exercise or nonexercise of a power of direction to the extent that compliance by the directed trustee would clearly constitute an act committed in bad faith.
(b) For purposes of subsection (a) of this Code section, a direction from a trust director shall be within the scope of the trust director's powers of direction if the directed trustee believes in good faith that the direction is within the trust director's powers of direction.
(c) Subject to subsection (f) of this Code section, a directed trustee shall:
(1) Except as provided otherwise in the trust instrument, provide information to a trust director as if the trust director were a beneficiary of an irrevocable trust to whom income is required or authorized in the trustee's discretion to be distributed; and
(2) Respond to reasonable requests from a trust director for information to the extent such information is relevant to the trust director's powers and duties regarding the trust.
(d) A directed trustee acting in reliance on information provided by a trust director shall not be liable for a breach of trust to the extent the breach resulted from such reliance, unless by so acting the directed trustee acts in bad faith.
(e) A trustee shall not be liable for a failure to sufficiently report or provide information to a beneficiary or other party when such failure is related to the failure of a trust director to provide information to the trustee.
(f)(1) Except as otherwise provided in the trust instrument, a trustee shall not have a duty to:
(A) Monitor, investigate, review, or evaluate a trust director, including a trust director's actions or inactions;
(B) Provide any accountings, reports, or other information to a trust director beyond that required by subsection (c) of this Code section;
(C) Advise a trust director regarding the scope, nature, execution, standard of care, potential liability, or other aspects of their status as trust director;
(D) If compliance with a direction from the trust director would constitute an act committed in bad faith, take any action in response to such direction other than the refusal to comply with such direction;
(E) Attempt to compel a trust director to act or not act;
(F) Petition the court regarding a trust director's action, inaction, capacity, or any similar matter; or
(G) Inform or give advice to a settlor, beneficiary, trustee, or trust director concerning an instance in which the trustee might have acted differently from the trust director.
(2) By taking one of the actions described in paragraph (1) of this subsection, a directed trustee does not assume any of the duties excluded by this subsection.
(g) An exercise of a power of direction under which a trust director may release a trustee from liability for breach of trust shall not be effective if the release was induced in bad faith or by the provision of false or incomplete information by the trustee.
(h) A trust instrument may impose a duty or liability on a directed trustee in addition to the duties and liabilities under this Code section.
(i) A directed trustee that has reasonable doubt about a duty imposed by this Code section may petition the court for instructions.
A trust instrument may relieve a cotrustee from duty and liability with respect to another cotrustee's exercise or nonexercise of a power of the other cotrustee to the same extent that a directed trustee is relieved from duty and liability with respect to a trust director's power of direction under this article.
(a) An individual shall be eligible to serve as a trust director regardless of citizenship and residency. If the trust director is a corporation, partnership, or other entity, it shall be required to have the power to act as a trustee in Georgia.
(b) The rules applicable to a trustee apply to a trust director regarding:
(1) Jurisdiction under Code Section 53-12-6;
(2) Appointment and acceptance, compensation, and resignation and removal of trustees under Article 11 of this chapter;
(3) Accounting under Article 12 of this chapter; and
(4) Nonresidents and foreign entities acting as trustees under Article 15 of this chapter.
(c) In an action against a trust director for breach of trust, the trust director may assert the same defenses a trustee in a like position and under similar circumstances could assert in an action for breach of trust against the trustee.
(d) By accepting appointment as a trust director of a trust subject to this article, a trust director submits to personal jurisdiction of the courts of this state regarding any matter related to a power or duty of a trust director. This subsection shall not preclude use of another method to obtain jurisdiction over a trust director.
(e) As used in this Code, where the context requires or permits, the term “trustee” includes a trust director.
This chapter shall be known and may be cited as the “Revised Uniform Fiduciary Access to Digital Assets Act.”
As used in this chapter, the term:
(1) “Account” means an arrangement under a terms-of-service agreement in which a custodian provides goods or services to the user.
(2)(A) “Agent” means an attorney in fact granted authority under a durable or nondurable power of attorney, including a person granted authority to act in the place of an individual under Chapter 6B of Title 10 and a person serving under a financial power of attorney created pursuant to Article 7 of Chapter 6 of Title 10 as it existed on June 30, 2017.
(B) Such term shall not include a:
(i) Health care agent, as defined in paragraph (6) of Code Section 31-32-2;
(ii) Person serving under a conditional power of attorney, as defined in subsection (a) of Code Section 10-6-6, unless the conditional power of attorney has become effective at a specified time or on the occurrence of a specified event or contingency; or
(iii) Person to whom power and authority regarding the care and custody of a child, including temporary written permission to seek emergency medical treatment or other services for a child, has been delegated under Article 4 of Chapter 9 of Title 19.
(3) “Catalogue of electronic communications” means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.
(4)(A) “Conservator” means a person appointed:
(i) Pursuant to Code Section 7-1-640 or 7-1-643;
(ii) By a court to manage the estate of a living individual; or
(iii) By a court pursuant to Article 2 of Chapter 9 of this title to manage the estate of an individual who is missing or believed to be dead.
(B) Such term shall include a guardian of the property appointed prior to July 1, 2005, but shall not include a conservator appointed pursuant to paragraph (1) of Code Section 9-16-14 unless the order appointing such conservator expressly so states and the proceeding pursuant to Chapter 16 of Title 9 in which such conservator is appointed concerns specific property consisting of or including digital assets.
(5) “Content of an electronic communication” means information concerning the substance or meaning of the communication which:
(A) Has been sent or received by a user;
(B) Is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and
(C) Is not readily accessible to the public.
(6) “Court” means the probate court.
(7) “Custodian” means a person that engages in the transmission of, maintains, processes, receives, or stores a digital asset or electronic communication of another person.
(8) “Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user.
(9) “Digital asset” means an electronic record in which an individual has a right or interest. Such term shall not include an underlying asset or liability unless the asset or liability is itself an electronic record.
(10) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(11) “Electronic communication” has the meaning set forth in 18 U.S.C. Section 2510(12), effective January 1, 2018.
(12) “Electronic communication service” means a custodian that provides to a user the ability to send or receive an electronic communication.
(13) “Fiduciary” means an original, additional, or successor personal representative, conservator, agent, or trustee.
(14) “Information” includes data, text, images, videos, sounds, codes, computer programs, software, and data bases.
(15) “Online tool” means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
(16) “Person” means an individual, estate, business or nonprofit entity, corporation, business trust, trust, partnership, limited liability company, association, unincorporated organization, joint venture, commercial entity, joint-stock company, public corporation, government or governmental subdivision, agency, instrumentality, or other legal or commercial entity.
(17) “Personal representative” means an original, additional, or successor executor, administrator, county administrator, or administrator with the will annexed, or a person legally authorized to perform substantially the same functions.
(18) “Power of attorney” means a writing or other record that grants a person authority to act in the place of an individual, including a conditional power of attorney, as defined in subsection (a) of Code Section 10-6-6, a power of attorney created pursuant to Chapter 6B of Title 10, and a financial power of attorney created pursuant to Article 7 of Chapter 6 of Title 10 as it existed on June 30, 2017.
(19) “Principal” means an individual who grants authority to a person to act in the place of such individual in a power of attorney.
(20) “Protected person” means an individual for whom a conservator has been appointed, including a minor, as defined in Code Section 29-1-1, and a ward, as defined in Code Section 29-1-1. Such term shall include an individual for whom a petition for the appointment of a conservator is pending, including both a proposed ward, as defined in Code Section 29-1-1, and a respondent, as defined in Code Section 29-11-2.
(21) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(22) “Remote computing service” means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. Section 2510(14), in effect on January 1, 2018.
(23) “Terms-of-service agreement” means an agreement that controls the relationship between a user and a custodian.
(24) “Trustee” means a person with legal title to property under a trust instrument, as defined in Code Section 53-12-2, that creates a beneficial interest in another. Such term shall include an original, additional, or successor trustee.
(25) “User” means a person whose digital asset or electronic communication is carried, maintained, processed, received, or stored by a custodian or to which a custodian provides services.
(26) “Will” means the legal declaration of an individual's testamentary intention regarding such individual's property or other matters. Such term shall include all codicils to such legal declaration, a testamentary instrument that only appoints an executor, and an instrument that revokes or revises a testamentary instrument.
(a) This chapter shall apply to a:
(1) Fiduciary acting under a will or power of attorney;
(2) Personal representative acting for a decedent;
(3) Conservatorship; and
(4) Trustee.
(b) This chapter shall apply to a custodian if the user resides in this state or resided in this state at the time of the user's death.
(c) This chapter shall not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
In any proceeding brought pursuant to this chapter, service of notice shall be made in the manner provided by Chapter 11 of this title.
(a) A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool shall override a contrary direction by the user in a will, trust, power of attorney, or other record.
(b) If a user has not used an online tool to give direction under subsection (a) of this Code section or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
(c) A user's direction under subsection (a) or (b) of this Code section shall override a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.
(a) This chapter shall not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
(b) This chapter shall not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
(c) A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under Code Section 53-13-10.
(a) When disclosing digital assets of a user under this chapter, the custodian may at its sole discretion:
(1) Grant a fiduciary or designated recipient full access to the user's account;
(2) Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(3) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(b) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
(c) A custodian need not disclose under this chapter a digital asset deleted by a user.
(d) If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
(1) A subset limited by date of the user's digital assets;
(2) All of the user's digital assets to the fiduciary or designated recipient;
(3) None of the user's digital assets; or
(4) All of the user's digital assets to the court for review in camera.
If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the death certificate of the user;
(3) A certified copy of the letters testamentary, letters of administration, or other letters of appointment of the personal representative;
(4) Unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and
(5) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(B) Evidence linking the account to the user; or
(C) A finding by the court that:
(i) The user had a specific account with the custodian, identifiable by the information specified in subparagraph (A) of this paragraph;
(ii) Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. Section 2701, in effect on January 1, 2018; 47 U.S.C. Section 222, in effect on January 1, 2018; or other applicable law;
(iii) Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
(iv) Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the personal representative gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the death certificate of the user;
(3) A certified copy of the letters testamentary, letters of administration, or other letters of appointment of the personal representative; and
(4) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(B) Evidence linking the account to the user;
(C) An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
(D) A finding by the court that:
(i) The user had a specific account with the custodian, identifiable by the information specified in subparagraph (A) of this paragraph; or
(ii) Disclosure of the user's digital assets is reasonably necessary for administration of the estate.
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(B) Evidence linking the account to the principal.
Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) An original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(B) Evidence linking the account to the principal.
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the trust instrument or a certification of the trust under Code Section 53-12-280 that includes consent to disclosure of the content of electronic communications to the trustee;
(3) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(B) Evidence linking the account to the trust.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the trust instrument or a certification of the trust under Code Section 53-12-280;
(3) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(B) Evidence linking the account to the trust.
(a) After an opportunity for a hearing under subsection (b) or (c) of Code Section 29-3-22 or under subsection (b) or (c) of Code Section 29-5-23, the court may grant a conservator access to the digital assets of a protected person.
(b) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and
(3) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
(B) Evidence linking the account to the protected person.
(c) A conservator with general authority to manage the assets of a protected person may request that a custodian of the digital assets of the protected person suspend or terminate an account of the protected person for good cause. A request made under this Code section shall be accompanied by a certified copy of the court order giving the conservator authority over the protected person's property.
(a) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including the duty of care, loyalty, and confidentiality.
(b) A fiduciary's or designated recipient's authority with respect to a digital asset of a user:
(1) Except as otherwise provided in Code Section 53-13-10, shall be subject to the applicable terms of service;
(2) Shall be subject to other applicable law, including copyright law;
(3) In the case of a fiduciary, shall be limited by the scope of the fiduciary's duties; and
(4) May not be used to impersonate the user.
(c) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor has or had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(d) A fiduciary acting within the scope of the fiduciary's duties shall be an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of liability under applicable computer fraud and unauthorized computer access laws, including Article 6 of Chapter 9 of Title 16.
(e) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor shall:
(1) Have the right to access the property and any digital asset stored in it; and
(2) Be an authorized user for the purpose of computer fraud and unauthorized computer access laws, including Article 6 of Chapter 9 of Title 16.
(f) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(g) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by:
(1) If the user is deceased, a certified copy of the death certificate of the user;
(2) A certified copy of the letters testamentary, letters of administration, or other letters of appointment of the personal representative, court order, power of attorney, or trust giving the fiduciary authority over the account; and
(3) If requested by the custodian:
(A) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(B) Evidence linking the account to the user; or
(C) A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph (A) of this paragraph.
(a) Not later than 60 days after receipt of the information required under Code Sections 53-13-13 through 53-13-30, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
(b) An order under subsection (a) of this Code section directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. Section 2702, in effect on July 1, 2018.
(c) A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.
(d) A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
(e) This chapter shall not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order that:
(1) Specifies that an account belongs to the protected person or principal;
(2) Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
(3) Contains a finding required by law other than this chapter.
(f) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but shall not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
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