TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 12. (Revised Trust Code of 2010) Trusts, 53-12-1 through 53-12-506.

ARTICLE 4 REFORMATION, MODIFICATION, DIVISION, CONSOLIDATION, AND TERMINATION OF TRUSTS

53-12-61. Power to direct modification, consolidation, division, or termination; petition to modify or terminate noncharitable irrevocable trust; proceeding to approve proposed modification or termination; distribution of trust property under order for termination.

1. The trust instrument may confer upon a trustee or other person a power to modify, consolidate, divide, or terminate the trust without court approval.
2. During the settlor's lifetime, the court shall approve a petition to modify or terminate a noncharitable irrevocable trust, even if the modification or termination is inconsistent with a material purpose of the trust, if the settlor and all the beneficiaries consent to such modification or termination and the trustee has received notice of the proposed modification or termination. A settlor's power to consent to such trust's modification or termination may be exercised by:
   1. An agent under a power of attorney only to the extent expressly authorized by the power of attorney and the terms of the trust;
   2. The settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or
   3. The settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed.
3. Following the settlor's death the court shall approve a petition to:
   1. Modify a noncharitable irrevocable trust if all the beneficiaries consent, the trustee has received notice of the proposed modification, and the court concludes that modification is not inconsistent with any material purpose of such trust; and
   2. Terminate a noncharitable irrevocable trust if all the beneficiaries consent, the trustee has received notice of the proposed termination, and the court concludes that continuance of such trust is not necessary to achieve any material purpose of such trust.
4. The court may, upon petition:
   1. Modify the trust if, owing to circumstances not anticipated by the settlor, modification would further the purposes of such trust;
   2. Modify the administrative provisions of a trust if continuation of such trust under its existing provisions would impair such trust's administration;
   3. Modify the trust by the appointment of an additional trustee or special fiduciary if such appointment is necessary or helpful to the administration of such trust;
   4. Modify the trust to achieve the settlor's tax objectives, with such modification to have either prospective or retroactive effect;
   5. Order the division of a single trust into two or more trusts or the consolidation of two or more trusts, whether created by the same or different trust instruments or by the same or different persons, into a single trust if the division or consolidation would be helpful to the administration of such trust or trusts; or
   6. Terminate a trust and order distribution of the trust property if the:
      1. Costs of administration are such that the continuance of such trust, the establishment of such trust if it is to be established, or the distribution from a probate estate would defeat or substantially impair the purposes of such trust;
      2. Purpose of such trust has been fulfilled or become illegal or impossible to fulfill; or
      3. Continuance of such trust would impair the accomplishment of the purposes of such trust.
5. A proceeding to approve a proposed modification or termination under this Code section may be commenced by a trustee or beneficiary. A proceeding to approve a proposed modification or termination under subsection (b) of this Code section may be commenced by a trustee, beneficiary, or settlor. In the case of an unfunded testamentary trust, a petition for modification or termination under this Code section may be filed by the personal representative of the settlor's estate.
6. No later than 30 days after filing the petition for modification or termination, notice of a petition to modify or terminate a trust under subsection (d) of this Code section shall be given to the settlor, the trustee, all the beneficiaries, any holder of a power of appointment over the trust property, and such other persons as the court may direct.
7. The court may modify or terminate a trust as provided in this Code section regardless of whether it contains spendthrift provisions or other similar protective provisions.
8. An order under subsection (d) of this Code section shall conform as nearly as practicable to the intention of the settlor.
9. Distribution of the trust property under an order for termination shall be made to or among the current beneficiaries and the vested remainder beneficiaries, or, if there are no vested remainder beneficiaries, among the current beneficiaries and the contingent remainder beneficiaries. The order shall specify the appropriate share, if any, of each current and remainder beneficiary who is to share in the proceeds of the trust so as to conform as nearly as practicable to the intention of the settlor. The order may direct that the interest of a minor beneficiary, or any portion thereof, be converted into qualifying property and distributed to a custodian pursuant to Article 5 of Chapter 5 of Title 44, "The Georgia Transfers to Minors Act."

(Code 1981, §53-12-61, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2018, p. 262, § 7/HB 121.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of this Code section for the former provisions, which read: "The trust instrument may confer upon a trustee or other person a power to modify the trust."