O.C.G.A.

O.C.G.A. § 53-12-260 (2019)

Discretionary powers

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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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.

History

Code 1981, § 53-12-260, enacted by Ga. L. 2010, p. 579, § 1/SB 131.

Annotations

Law reviews. - For annual survey on

wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS No evidence of bad faith. - Trial court did not err when the court granted the trustees summary judgment on the son’s claims for breach of trust and breach of fiduciary duty because there was no evidence of bad faith, and, therefore, judicial intervention into the trustees’ consis-

tent decisions to treat all beneficiaries, including themselves, equally in the form of per stirpes distributions was not authorized; the son produced no evidence that the trustees ignored the beneficiaries’ means of support, but even if the trustees had done so, the trustees could, in the

trustees’ discretion, exclude the beneficiaries’ resources from their consideration on the basis of both: (i) the trust instrument’s grant to distribute either equal or unequal amounts to each of the settlor’s children; and (ii) the trustees’ personal knowledge concerning the settlor’s intended treatment of the children. McPherson v. McPherson, 307 Ga. App. 548, 705 S.E.2d 314 (2011). Trustee’s/executor’s powers did not entitle trustee to ignore purpose of trust or commit waste. - Trial court erred in concluding that a widow’s considerable powers of control over two testamentary trusts as trustee and executor entitled her to summary judgment on two of the children’s/beneficiaries’ claims against the trust created for the purpose of supporting them during their lifetimes; she was required to diligently and in good faith ascertain whether they required support, and her powers over the assets did not entitle her to commit waste. Peterson v. Peterson, 303 Ga. 211, 811 S.E.2d 309 (2018). Jury instruction on standard of

care. - In a breach of trust action, the trial court did not apply an incorrect standard of care in that a co-trustee could only be held liable if the co-trustee failed to act in good faith because if there was any error, the error was created by the co-trustee since the co-trustee consented to the instructions given and failed to request a charge that clearly set forth what the co-trustee asserted to be the proper standard for acts performed with absolute discretion. Reliance Trust Co. v. Candler, 294 Ga. 15, 751 S.E.2d 47 (2013). Jury question as to whether duty of good faith breached. - 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).

Notes of Decisions

Cited in 7 cases (1 in the last 5 years), 2011–2025 · leading case: McPherson v. McPherson, 705 S.E.2d 314 (Ga. Ct. App. 2011).

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McPherson v. McPherson, 705 S.E.2d 314 (Ga. Ct. App. 2011). · cites it 4× “See OCGA § 53-12-7 (specifying those provisions, not including OCGA § 53-12-245, which a trust instrument may not vary).”

Callaway v. Willard., 830 S.E.2d 464 (Ga. Ct. App. 2019). · cites it 4× “While Callaway argues that he was entitled to these fees under the terms of the Trust, he does not dispute the trial court's calculation of the fees and costs. 24 See supra notes 11-14 & accompanying text.”

Reliance Trust Co. v. Candler, 751 S.E.2d 47 (Ga. 2013). · cites it 6× “We granted Reliance’s petition for a writ of certiorari, directing the parties to address only these points: Did the Court of Appeals err when it upheld the jury’s verdict in favor of Respondents/Appellees and when it affirmed the trial court’s award of interest? 1.”

Rollins Et Al. v. Rollins Et Al., 790 S.E.2d 157 (Ga. Ct. App. 2016). · cites it 2× “” OCGA § 53-12-260 (emphasis supplied). The trust instrument at issue here does not use such terms, though it does grant the trustees the power to adopt “any form of management.”

Rollins v. Rollins, 741 S.E.2d 251 (Ga. Ct. App. 2013). · cites it 2× “OCGA § 53-12-260. See Smith v. Hawks, 182 Ga.”

Wells Fargo Bank, N.A. v. Rose McNeill (Ga. Ct. App. 2025). · cites it 2× “548, 550 (1) (a) ( 705 SE2d 314 ) (2011); OCGA § 53-12-260 (“Notwithstanding the breadth of discretion granted to a trustee in the trust instrument, .”

Glen W. Rollins v. Gary W. Rollins (Ga. Ct. App. 2013). · cites it 2× “agreement, without notifying the Beneficiaries, to further concentrate control of RIF in Gary and Randall and remove control from the Beneficiaries’ S-Trusts, and in altering the RIF agreement to sanction non pro rata distributions wholly at Gary and Randall’s discretion, and…”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.