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Pyke & Associates, P.C.
July 1, 2010 Georgia Makes Major Changes Affecting Your Will and/or Trust
Posted On 9/1/2010
Trustees and their beneficiaries should talk more. To make sure that happens, Georgia lawmakers amended the Georgia Trust Code effective July 1, 2010.
But what if you don’t have a trust? What if you aren’t a Trustee? You think the Georgia Trust Code doesn’t affect you?
You’re wrong. Are we sure? Absolutely.
If you have a Revocable Living Trust, a Last Will & Testament that creates a trust upon your death or a Property Power of Attorney, your estate plan was affected by the 2010 Revision of the Georgia Trust Code.
What does that mean? Your estate plan needs to be updated.
The Revised Georgia Trust Code of 2010 has over 100 sections and is located in Title 53, Chapter 12 of the Official Code of Georgia. Many of the new Trust Code provisions affect the terms of your estate plan.
For example, the new Trust Code expands the statutory law related to Trustee duties – adding additional duties that are now, unless specifically waived, required of Trustees. These duties include the duty to inform beneficiaries as to the existence of a trust and the duty to provide reports and accountings.
Well those duties don’t sound so bad, do they? Of course not. But taking a closer look, they may be more intrusive and more of an administrative responsibility than you’d like for your Trustees to be obligated.
The duty to inform, for example, requires the Trustee to notify “qualified beneficiaries” of the existence of a Trust within 60 days of its creation (OCGA §53-12-242). Practically speaking, that means that your Trustee has 60 days from your date of death to notify your beneficiaries of any trusts created by your estate plan. Qualified beneficiaries are defined statutorily as not only the primary beneficiaries who are entitled to distributions, such as your spouse or children, but also any other beneficiaries who would be entitled to distributions if your primary beneficiaries ceased to exist. That’s probably not an administrative duty you want your Trustee to have to “calendar” and you may not want your grandchildren, nieces and nephews or charities to be informed of a trust from which they might never actually benefit. Fortunately, this duty is waivable but if you don’t amend your estate plan, your Trustee is required to fulfill this duty for so long as the Trust exists.
The new duty to provide reports and accountings is also a waivable responsibility, but only if you amend your estate plan to specifically do so. Why would you want to relieve your Trustee of this responsibility? OCGA §53-12-243 statutorily obligates your Trustee to provide to any qualified beneficiary a report about all trust assets, receipts and disbursements. Practically speaking, that means that a beneficiary who may never actually benefit from the trust can require the Trustee to provide information regarding trust activity. Imagine leaving assets to your spouse in a trust protected either from taxes, long term care costs or other claims and then your grandson, who is only a remote contingent beneficiary, requesting a report of how much money your spouse has used from the trust since his grandfather died.
Those are just two examples of the many changes represented in the 2010 Revised Georgia Trust Code. We know that you want your Trustee held accountable, but you’ve picked Trustees you trust and you don’t want to unnecessarily burden them with what may amount to administrative hassles.
Thankfully, the new Trust Code allows your estate plan to waive the requirements you find unnecessarily burdensome. We can only provide such waivers, though, by amending your estate plan. The fee for an Amendment to your Revocable Living Trust addressing the applicable Trust Code provisions will be $410.00 per person and an Amendment to your Last Will and Testament will be $310.00 per person ($620 - $820 respectfully for a married couple). If you are a member of the Annual Maintenance Program (AMP), you receive a 15% discount on these changes. If you are not an AMP member call our office at 770-507-2500 to find out how to join today.