2021 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 12 - Trusts
Article 1 - General Provisions
§ 53-12-2. Definitions

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:
   1. 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;
   2. 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
   3. 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:
    1. Is a distributee or permissible distributee of trust income or principal;
    2. 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
    3. 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.

(Code 1981, §53-12-2, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2011, p. 551, § 6/SB 134; Ga. L. 2017, p. 193, § 28/HB 143; Ga. L. 2018, p. 1089, § 7/SB 301.)

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 204 (2018). For note discussing problems with profits generated by escrow account, and proposing federal legislative reform, see 10 Ga. St. B.J. 618 (1974). For comment on First Nat'l Bank & Trust Co. v. Roberts, 187 Ga. 472, 1 S.E.2d 12 (1939), see 1 Ga. B.J. 50 (1939).

ANALYSIS

• General Consideration
• Separation of Legal Title from Beneficial Interest
• Evidence of Intent
• Fraud
• Nature of Transaction
• Incompletely Declared Uses
• Equitable Basis of Implied Trusts
• Statute of Limitations

RESEARCH REFERENCES

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, §§ 128, 130.

- 90 C.J.S., Trusts, §§ 2, 12.

- Rights and remedies of one who advances money to purchase real estate under an oral agreement by the vendee to give a mortgage thereon as security, 18 A.L.R. 1098.

Grantee's oral promise to grantor as giving rise to trust, 35 A.L.R. 280; 45 A.L.R. 851; 80 A.L.R. 195; 129 A.L.R. 689; 159 A.L.R. 997.

Rights of parties under oral agreement to buy land or bid it in at judicial sale for another, 42 A.L.R. 10; 135 A.L.R. 232; 27 A.L.R. 1285.

Remedy of one whose money is fraudulently used in the purchase or improvement of real property, 43 A.L.R. 1415; 47 A.L.R. 371; 778 A.L.R. 1269.

Person taking under probate of forged or fraudulent will as trustee ex maleficio, 52 A.L.R. 779.

Devise or legacy upon promise of devisee or legatee that another shall benefit as creating trust, 66 A.L.R. 156; 155 A.L.R. 106.

Gift or trust by deposit of funds belonging to depositor in a bank account in the name of himself and another, 66 A.L.R. 881.

May unconsummated intention to make a gift of personal property be made effective as a voluntary trust, 96 A.L.R. 383; 123 A.L.R. 1335.

Effect of deed in which the word "trustee" follows the name of grantee, but does not set out terms of trust or name the beneficiary, 137 A.L.R. 460.

Attorney as trustee for purpose of running of statute of limitations against claim for money or property received or collected by him, 151 A.L.R. 1388.

Devise or legacy upon promise of devisee or legatee that another shall benefit as creating trust, 155 A.L.R. 106.

Gift or trust by deposit in bank in another's name or in depositor's own name in trust for another, as affected by lack of knowledge on part of such other person, 157 A.L.R. 925; 168 A.L.R. 1324.

Grantee's oral promise to grantor as giving rise to trust, 159 A.L.R. 997.

Constructive trust against one holding merely bond for deed or other executory contract and not legal title, 173 A.L.R. 1275.

Doctrine of constructive trust or unjust enrichment as applicable between owner and one who fraudulently procures tax certificates, 175 A.L.R. 700.

Purported conveyance or transfer, based on consideration, which is ineffective to transfer the property, as subject of constructive trust, based on transferor's duty to complete the transfer, 12 A.L.R.2d 961.

Constructive trust with respect to partnership personal property assets knowingly received from individual partner for payment of his private debt, 45 A.L.R.2d 1211.

Imposition or declaration of constructive or resulting trust in United States saving bonds, 51 A.L.R.2d 163.

Testamentary nature of life insurance trust, 53 A.L.R.2d 1112.

Validity and effect of gift for charitable purposes which excludes otherwise qualified beneficiaries because of their race or religion, 25 A.L.R.3d 736.

Imposition of constructive trust in property bought with stolen or embezzled funds, 38 A.L.R.3d 1354.

Determination of property rights between local church and parent church body: modern view, 52 A.L.R.3d 324.

Trusts: merger of legal and equitable estates where sole trustees are sole beneficiaries, 7 A.L.R.4th 621.

Power of trustee in bankruptcy to defeat rights of beneficiary of constructive trust under § 544(a) of Bankruptcy Code (11 USCS § 544(a)), 96 A.L.R. Fed. 100.