2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 12 - Trusts
Article 14 - Trustee Liability
§ 53-12-308. Personal Liability of Trustee

1. 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.
2. 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.
3. A judgment rendered in an action brought against the trust shall impose no personal liability on the trustee or the beneficiary.

(Code 1981, §53-12-308, enacted by Ga. L. 2010, p. 579, § 1/SB 131.)

- For article, "Noticing the Bankruptcy Sale: The Purchased Property May Not Be as 'Free and Clear of All Liens, Claims and Encumberances' as You Think," see 15 (No. 5) Ga. St. B.J. 12 (2010).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1872, § 3377, former Code 1895, § 3203, former O.C.G.A. § 53-12-154, and former O.C.G.A. § 53-12-199 of the 1991 Trust Act are included in the annotations for this Code section.

Trustee shall not incur any individual or personal liability in such action. On the contrary, the statute expressly declares: "The judgment thus rendered shall impose no personal liability on the trustee," etc. It will therefore be seen that one is a mere nominal party, so far as personal interest in the action is concerned, charged with the duty of defending the action, not in one's own behalf, but on behalf of the cestuis que trust. If one fails properly to discharge this duty, one is liable to them in damages. Wagnon v. Pease, 104 Ga. 417, 30 S.E. 895 (1898) (decided under former Code 1895, § 3203). Vason & Davis v. Gardner, 70 Ga. 517 (1883) See also.

- In an action by beneficiaries of a trust to recover on a promissory note, the trial court did not err in limiting their potential counterclaim liability to the amount the beneficiaries would otherwise have received as trust beneficiaries since the beneficiaries could not be held personally liable in an action against the trust. Altama Delta Corp. v. Howell, 225 Ga. App. 78, 483 S.E.2d 127 (1997) (decided under former O.C.G.A. § 53-12-199).

- Insurer did not have a duty to defend a trustee as the real estate at issue was conveyed to the purchasers by another individual acting as attorney-in-fact for the trustee in the trustee's role as trustee, and the trustee did not allege the trustee had any interaction with the purchasers that would have created personal liability under state law, former O.C.G.A. § 53-12-199 (see O.C.G.A. § 53-12-308). Burt v. Great N. Ins. Co., 290 Fed. Appx. 297 (11th Cir. 2008)(Unpublished) (decided under former O.C.G.A. § 53-12-199).

RESEARCH REFERENCES

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, § 267.

ARTICLE 15 NONRESIDENTS AND FOREIGN ENTITIES ACTING AS TRUSTEES

Cross references.

- Fiduciary powers of financial institutions generally, § 7-1-310 et seq.

Foreign guardians generally, § 29-2-74 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, §§ 207, 212.

Am. Jur. Pleading and Practice Forms, Trusts, § 91.