2021 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 12 - Trusts
Article 11 - Trustees
Part 2 - Trustee Compensation
§ 53-12-210. Compensation of Trustee

Universal Citation: GA Code § 53-12-210 (2021)
  1. 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.
  2. 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.
  3. 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:
      1. 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.

(Code 1981, §53-12-210, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2011, p. 752, § 53/HB 142; Ga. L. 2018, p. 262, § 15/HB 121; Ga. L. 2020, p. 377, § 1-81/HB 865.)

The 2020 amendment, effective January 1, 2021, substituted "The trustee and all" for "All" at the beginning of paragraphs (a)(1) and (b)(1); substituted "or" for "and" at the end of paragraph (a)(1); inserted "that" in paragraph (c)(1); and substituted "not more" for "less" three times in the table in subparagraph (c)(2)(B).

Law reviews.

- For article on the problems and benefits of multiple fiduciaries in estate planning, see 33 Mercer L. Rev. 355 (1981). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 108-432, former O.C.G.A. § 53-13-29, and former O.C.G.A. § 53-12-173 of the 1991 Trust Act are included in the annotations for this Code section.

Trustee allowed distribution fee of up to 3 percent of value of assets distributed. Lettie Pate Whitehead Found., Inc. v. United States, 606 F.2d 534 (5th Cir. 1979) (decided under former Code 1933, § 108-432).

Administrator not entitled to compensation as trustee.

- Administrator was not entitled to additional compensation under former O.C.G.A. § 53-12-173 (see O.C.G.A. §§ 53-12-210 and53-12-211), governing compensation of a trustee, when assets were never transferred from the estate to a trust, the administrator did not manifest any act to hold the property as trustee, and the administrator's conduct did not show assent to the estate property being passed to the trust under O.C.G.A. § 53-8-15(b). In re Estate of Moore, 292 Ga. App. 236, 664 S.E.2d 259 (2008) (decided under former O.C.G.A. § 53-12-173).

Cited in Trust Co. v. Woodruff, 236 Ga. 220, 223 S.E.2d 91 (1976); Trust Co. Bank v. Heyward, 240 Ga. 557, 242 S.E.2d 257 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, § 574.

C.J.S.

- 90 C.J.S., Trusts, §§ 259. 90A C.J.S., Trusts, § 383.

ALR.

- Right to double commission where same person, natural or corporate, is named as executor and trustee, 84 A.L.R. 667; 85 A.L.R.2d 537.

Trustee's commission in case of successive trusts, or of single trust for benefit of different persons in succession, 85 A.L.R. 163.

Compensation of executor, administrator, or trustee as affected by change in statute after decedent's death and before final account, or after creation of trust, 91 A.L.R. 1421.

Compensation of testamentary trustee for conducting business or taking active part in management of corporation, 99 A.L.R. 961.

Compensation of trustee as affected by neglect or violation of his duties, 110 A.L.R. 566.

Trustee's compensation as payable from income or corpus, 117 A.L.R. 1154.

Expenses of trust administration, such as court costs, costs of litigation, bond premiums, attorneys' fees, etc., as payable from income or corpus, 124 A.L.R. 1183.

Right of creditors to reach by garnishment or other process, commissions of debtor, as executor, administrator, or trustee, 143 A.L.R. 190.

Trustee's right to compensation as affected by provision of trust instrument that contemplates future agreement in that regard between trustee and beneficiary or other person, 165 A.L.R. 772.

Right to double compensation where same person (natural or corporate) acts as executor and trustee, 85 A.L.R.2d 537.

Limiting effect of provision in contract, will, or trust instrument fixing trustee's or executor's fees, 19 A.L.R.3d 520.

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 96 A.L.R.3d 1102.

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