O.C.G.A.
O.C.G.A.

O.C.G.A. § 53-12-45 (2019)

Limitation on action contesting validity of revocable trust

✓ 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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(a) Any judicial proceeding to contest the validity of a trust that was revocable immediately before the settlor’s death shall be commenced within two years of the settlor’s death.

(b) Upon the death of the settlor of a trust that was revocable immediately before the settlor’s death, the trustee may proceed to distribute the trust property in accordance with the trust provisions. The trustee shall not be subject to liability for doing so unless:

(1) The trustee knows of a pending judicial proceeding contesting the validity of the trust; or

(2) A potential contestant has notified the trustee in writing of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent such notification.

(c) A beneficiary of a trust that is determined to have been invalid shall be liable to return any distribution received.

History

Code 1981, § 53-12-45, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2011, p. 752, § 53/HB 142.

Annotations

Law reviews. - For annual survey of

law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010).

JUDICIAL DECISIONS Action time barred. - Because a decedent died in May 2013, the two-year period in O.C.G.A. § 53-12-45(a) barred the niece’s challenge to the decedent’s revocable trust’s validity asserted in January 2017; it was immaterial whether

§ 53-12-45(a) was a statute of limitation or repose because the niece had actual notice of the trust two months after the decedent died. Howell v. Bates, 350 Ga. App. 708, 830 S.E.2d 250 (2019).

ARTICLE 4 REFORMATION, MODIFICATION, DIVISION, CONSOLIDATION, AND TERMINATION OF TRUSTS RESEARCH REFERENCES Am. Jur. 2d. - 76 Am. Jur. 2d, Trusts, § 67 et seq. Am. Jur. Pleading and Practice

Forms. - Am. Jur. Pleading and Practice Forms, Trusts, §§ 8, 9, 13, 14, 35 to 37.

Notes of Decisions
Cited in 3 cases (1 in the last 5 years), 2019–2021 · leading case: Howell v. Bates as Tr. of Anne S. Florance Revocable Trust, 830 S.E.2d 250 (Ga. Ct. App. 2019).
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Howell v. Bates as Tr. of Anne S. Florance Revocable Trust, 830 S.E.2d 250 (Ga. Ct. App. 2019). · cites it 14× “Howell contends that the superior court erred in ruling that OCGA § 53-12-45 (a) was a statute of repose and that, as a result, she was time-barred from challenging the validity of the Trust.”
Emily Howell v. Philip A. Bates, as Tr. of the Anne S. Florance Revocable Trust (Ga. Ct. App. 2019). · cites it 8× “15 Even if the estate had standing to assert a claim challenging the validity of the Trust, such claim might be time-barred under OCGA § 53-12-45 (a). See Division 2, infra.”
Suzanne Giller v. Robert Slosberg (Ga. Ct. App. 2021). · cites it 2× “To support their argument that a superior court lacks authority to impose a constructive trust once it sets aside financial documents on the basis of undue influence, Giller and Seidner cite OCGA § 53-12-45 (c), claiming the statute demands that distributions of a trust deemed…”
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