2021 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 12 - Trusts
Article 14 - Trustee Liability
§ 53-12-303. Relief of Liability

1. 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.
2. 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.

(Code 1981, §53-12-303, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2018, p. 262, § 23/HB 121.)

- For article on the problems and benefits of multiple fiduciaries in estate planning, see 33 Mercer L. Rev. 355 (1981). 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 O.C.G.A. § 53-12-194 of the 1991 Trust Act are included in the annotations for this Code section.

- Trial court erred in granting beneficiaries' motion to dismiss for failure to state a claim a trustee's counterclaim, alleging that by filing their complaint, the beneficiaries breached contracts in which they released trustee from any liability because the beneficiaries' complaint sought damages for negligence and for conduct that preceded and followed the execution of a release and indemnification agreement; the trial court erred in ruling that the release provisions were facially void under the limits on trust instruments imposed by former O.C.G.A. § 53-12-194 (see O.C.G.A. § 53-12-303) and were not subject to enforcement through a breach of contract claim because the release and indemnification agreement did not meet the definition of a trust instrument set forth in former O.C.G.A. § 53-12-2 (see O.C.G.A. § 53-12-2), and the beneficiaries and trustee executed them long after the creation of the trust and several years after the settlor's death. Heiman v. Mayfield, 300 Ga. App. 879, 686 S.E.2d 284 (2009) (decided under former O.C.G.A. § 53-12-194).

- Co-trustee was entitled to summary judgment on a trust beneficiary's breach of fiduciary duty claim because the beneficiary waived any claim against the co-trustee in the delegation instrument; former O.C.G.A. § 53-12-194(a), prohibiting such waivers of claims against trustees in a trust instrument, did not apply because the delegation instrument was not a trust instrument. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014)(decided under former O.C.G.A. § 53- 12-194).

- Pursuant to an instrument delegating a trustee as co-trustee, the trust beneficiary waived any claim against the trustee for acts relating to an asset transfer by the beneficiary; former O.C.G.A. § 53-12-194(a), prohibiting such insulations from liability, applied to trust instruments, and the document delegating the co-trustee was not a trust instrument. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014)(decided under former O.C.G.A. § 53-12-194).

- Jury question was presented as to whether two trustees of their children's trusts acted against the interests of the beneficiaries (their children) in bad faith by amending a partnership agreement to concentrate all voting power in themselves to the exclusion of the beneficiaries, who otherwise would have become partners when they turned 45. Likewise, the trustees as partners owed duties to the trusts as partners in the partnership. Rollins v. Rollins, 338 Ga. App. 308, 790 S.E.2d 157 (2016).

RESEARCH REFERENCES

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, §§ 446, 447.