25 LC 48 1516S/AP
House Bill 327 (AS PASSED HOUSE AND SENATE)
By: Representatives Leverett of the 123
rd
, Efstration of the 104
th
, Gunter of the 8
th
, Reeves
of the 99
th
, Oliver of the 84
th
, and others
A BILL TO BE ENTITLED
AN ACT
To amend Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to
1
financial institutions, so as to provide for the appointment of a trust director regarding certain2
estates; to update certain fiduciary provisions; to amend Chapter 6B of Title 10 of the3
Official Code of Georgia Annotated, relating to Georgia power of attorney, so as to provide4
for certain delegations to powers of attorney; to amend Code Section 15-9-127 of the Official5
Code of Georgia Annotated, relating to concurrent jurisdiction with superior courts and6
probate court jurisdiction, so as to provide for service of process regarding probate7
proceedings; to amend Title 19 of the Official Code of Georgia Annotated, relating to8
domestic relations, so as to provide for parental powers and rights regarding children born9
out of wedlock or from methods of assisted reproduction; to provide for superior court10
jurisdiction regarding support orders; to amend Code Section 24-12-21 of the Official Code11
of Georgia Annotated, relating to disclosure of AIDS confidential information, so as to12
provide for the dissemination of certain information regarding the estate of a person with13
AIDS; to amend Title 29 of the Official Code of Georgia Annotated, relating to guardian and14
ward, so as to increase the amount of moneys distributed under probate court jurisdiction in15
cases of minors and incapacitated persons; to revise provisions regarding the compensation16
for legal counsel or guardian ad litem; to amend Code Section 31-10-9 of the Official Code17
of Georgia Annotated, relating to registration of births, so as to provide for children born18
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from methods of assisted reproduction; to amend Code Section 43-34-37 of the Official Code
19
of Georgia Annotated, relating to persons authorized to perform artificial insemination and20
civil liability of physician or surgeon, so as to provide for the authorization of performing21
methods of assisted reproduction; to amend Title 44 of the Official Code of Georgia22
Annotated, relating to property, so as to provide for petitions of trustees and trust directors23
regarding nonvested property interests; to provide for certain institutional gifts and funds; to24
amend Code Section 50-18-160 of the Official Code of Georgia Annotated, relating to25
protection of personal information of individuals or nonprofit organizations, so as to provide26
that certain provisions of such Code section shall not apply to the collection and use of27
personal information by the Department of Early Care and Learning for purposes authorized28
by Chapter 1A of Title 20; to amend Code Section 51-4-2 of the Official Code of Georgia29
Annotated, relating to wrongful death of spouse or parent, so as to provide for recovery for30
children born out of wedlock; to amend Title 53 of the Official Code of Georgia Annotated,31
relating to wills, trusts, and administration of estates, so as to provide for the decree of32
adoption; to provide for estate interests of children born out of wedlock or from methods of33
assisted reproduction; to provide for procedures when heirship distribution is in question34
regarding estate property interests; to provide for certain fiduciary powers for estate personal35
representatives; to provide that creditors give personal representatives timely notice of claims36
against the estate; to provide for the filing and service of estate annual return documentation;37
to revise certain definitions relating to trusts; to provide for DNA testing with regard to38
kinship; to provide for the survival of common law and equity regarding trusts; to provide39
for interested parties in nonjudicial settlement agreements; to provide for conditions in40
terrorem trust instruments; to provide for trustee duties to the settlor; to provide for certain41
trustee powers regarding trust modifications; to provide for charitable trusts; to provide for42
the capacity, appointment, and removal of trustees; to provide for trustee duties to the43
beneficiary; to provide for trustee powers; to repeal a provision relating to granting powers44
by qualified beneficiaries; to provide for limitations of actions against a trustee; to provide45
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for nonresidents acting as trustees; to revise provisions regarding trust instrument delegation
46
and unitrusts; to revise provisions relating to trust directors; to provide for electronic trust47
administration records and electronic signatures with respect to trusts; to provide for48
definitions; to provide for conformity to federal law; to provide for related matters; to repeal49
conflicting laws; and for other purposes.50
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:51
SECTION 1.52
Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to financial53
institutions, is amended by revising subsection (b) of Code Section 7-1-223, relating to54
substituted trustee or manager for trust and pooled assets, as follows:55
"(b) Nothing in this Code section or Code Section 7-1-222 shall be construed to impair any56
right of the grantor or beneficiaries of trust or pooled assets, a trust director acting as
57
authorized by and in compliance with Article 18 of Chapter 12 of Title 53 with respect to58
trust or pooled assets, or any person acting as authorized by and in compliance with Code59
Section 53-12-201 with respect to trust or pooled assets under applicable instruments or60
otherwise to secure or provide for the appointment of a substituted trustee or manager."61
SECTION 2.62
Said chapter is further amended by revising subsection (b) of Code Section 7-1-242, relating63
to restriction on corporate fiduciaries, as follows:64
"(b) Acting as a fiduciary for purposes of this Code section includes, but is not limited to:65
(1) Accepting or executing trusts or otherwise acting as a trustee;66
(2) Administering real or tangible personal property located in Georgia or elsewhere. 67
For the purposes of As used in this paragraph, the term 'administer' means to possess,68
purchase, sell, lease, insure, safekeep, manage, or otherwise oversee; and69
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(3) Acting pursuant to a court order as personal representative, executor, or temporary70
administrator of the estate of a deceased person or as guardian or conservator for a minor71
or incapacitated person."72
SECTION 3.73
Said chapter is further amended by revising subsection (d) of Code Section 7-1-322, relating74
to effect of affiliate transfer on bank, abandonment of transfer, and substituted fiduciary, as75
follows:76
"(d) Nothing in this Code section shall be construed to impair any right of the grantor or77
beneficiaries of any fiduciary relationship or a trust director acting as authorized by and in78
compliance with Article 18 of Chapter 12 of Title 53 with respect to such fiduciary79
relationship under applicable instruments or otherwise to secure or provide for the80
appointment of a substituted fiduciary."81
SECTION 4.82
Said chapter is further amended by revising Code Section 7-1-324, relating to designation83
of affiliate trust company as successor fiduciary, as follows:84
"7-1-324.85
Upon any affiliate transfer, the affiliate trust company may be designated in any deed, trust86
instrument, agreement, filing, instrument, notice, certificate, pleading, or other document87
as successor fiduciary pursuant to this part."88
SECTION 5.89
Said chapter is further amended by revising Code Section 7-1-333, relating to limitations on90
investments, as follows:91
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"7-1-333.
92
Trust institutions and foreign trust institutions, as defined by this part, acting in a fiduciary93
capacity and for fiduciary purposes, if exercising due care as a prudent investor, and with94
the consent of any cofiduciary, may invest and reinvest funds held in such fiduciary95
capacity in the shares of stock of one or more fiduciary investment companies, except96
where the will, trust instrument or
indenture, or other instrument under which such trust97
institution or foreign trust institution acts prohibits such investment, provided that the98
fiduciary investment company, by its articles of incorporation issued and granted in99
conformity with Chapter 2 of Title 14, the 'Georgia Business Corporation Code,' shall have100
and possess the corporate powers required by this part and be subject to the limitations set101
forth by this part; provided, further, that no such trust institution or foreign trust institution102
shall invest in the stock of a fiduciary investment company on behalf of any estate, trust,103
or fund administered by such trust institution or foreign trust institution a sum or amount104
which that would result in such estate, trust, or fund having a total investment in such stock105
in excess of the maximum amount or percentage that might be invested by such estate,106
trust, or fund, under the regulations of the department in effect at the time of such107
investment, in any common trust fund having total assets equal to the total assets of the108
fiduciary investment company as increased by the proposed investment; and no trust109
institution or foreign trust institution shall invest in the stock of a fiduciary investment110
company if, immediately after such investment and as a consequence thereof, it would own111
more than 25 percent of the voting securities of such fiduciary investment company which112
that would then be outstanding."113
SECTION 6.114
Said chapter is further amended by revising Code Section 7-1-334, relating to corporate115
powers and limitations and restrictions, as follows:116
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"7-1-334.
117
Every fiduciary investment company in which a trust institution or foreign trust institution118
is authorized by this part to own and hold corporate stock or shares, in order to qualify for119
such investments, shall have such corporate powers as may be granted by Chapter 2 of120
Title 14, the 'Georgia Business Corporation Code,'
by virtue of its incorporation under121
those chapters and shall, in addition, have the following corporate powers under its articles122
of incorporation and, by its articles of incorporation or its bylaws, be subject to the123
limitations and restrictions set forth in this Code section:124
(1) The stock of any such fiduciary investment company shall be owned and held only125
by trust institutions and foreign trust institutions acting as fiduciaries or cofiduciaries but126
may be registered in the name of the nominee or nominees of any such trust institution127
or foreign trust institution. Such stock shall not be subject to transfer or assignment128
except to the trust institution or foreign trust institution on whose behalf the stock is held129
by any such nominee or nominees or to a fiduciary or cofiduciary which that becomes130
successor to the shareholder and which that is also a trust institution or foreign trust131
institution qualified to hold such stock.;132
(2) A fiduciary investment company shall have no less fewer than five directors, who133
need not be shareholders but shall be officers or directors of trust institutions or foreign134
trust institutions holding stock in such fiduciary investment company; provided, however,135
that no more than two directors shall be officers or directors of any one trust institution136
or foreign trust institution if the fiduciary investment company has been organized and137
incorporated by three or more trust institutions.;138
(3) In acquiring, investing, reinvesting, exchanging, selling, and managing its assets,139
every fiduciary investment company shall exercise the judgment and care under the140
circumstances then existing which men prevailing that persons of prudence, discretion,141
and intelligence exercise in the management of their own affairs, not in regard to142
speculation but in regard to the permanent disposition of their funds, considering the143
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probable income as well as the safety of their capital. Within the foregoing limitations,
144
a fiduciary investment company may acquire and retain every kind of investment,145
specifically including, but not limited to,
(but not by way of limitation) bonds,146
debentures, and other corporate obligations and corporate stocks, preferred or common,147
which men that persons of prudence, discretion, and intelligence acquire or retain for148
their own account, provided that a fiduciary investment company shall not at any time:149
(A) Invest in real estate, commodities, or commodity contracts;150
(B) Participate on a joint or joint and several basis in any securities trading account;151
(C) Invest in companies for the purpose of exercising control or management;152
(D) Make loans to any person or persons, except that the purchase of a portion of an153
issue of debt securities, convertible debt securities, debt securities with warrants, rights,154
or options attached, or other similar securities when originally issued or thereafter, of155
a character commonly distributed publicly, shall not be considered the making of a156
loan;157
(E) Purchase or retain the securities of any issuer if immediately after such acquisition158
and as a result thereof the following requirements would not be met: at least 75 percent159
of the total assets in the fiduciary investment company taken at market value are160
represented by cash and cash items, securities issued or guaranteed by the United States161
or an instrumentality thereof, and other securities which that, as to any one issuer, do162
not represent more than 10 percent of the value of the total assets of the fiduciary163
investment company;164
(F) Purchase or otherwise acquire the securities of any other investment company as165
that such term is defined in the act of Congress entitled 'Investment the federal166
Investment Company Act of 1940' 1940;167
(G) Act as underwriter of the securities of other issuers;168
(H) Borrow money; or169
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(I) Engage in margin transactions or short sales or write put or call options for the
170
purchase or sale of securities.
;171
(4) A fiduciary investment company may acquire, purchase, or redeem its own stock and172
may, by means of contract or by its bylaws, bind itself to acquire, purchase, or redeem173
its own stock; but it shall not vote shares of its own stock theretofore redeemed.;174
(5) A fiduciary investment company shall not be responsible for ascertaining the175
investment powers of any fiduciary who may purchase its stock, shall not be liable for176
accepting funds from a fiduciary in violation of restrictions of the will, trust instrument177
or indenture, or other instrument under which such fiduciary is acting in absence of actual178
knowledge of such violation, and shall be accountable only to the department and the179
fiduciaries who are the owners of its stock.; and180
(6) Every fiduciary investment company subject to the supervision and regulation of the181
comptroller of the currency of the United States shall comply with all applicable rules and182
regulations of that agency to the extent that such rules and regulations are in addition to183
or in conflict with rules and regulations promulgated by the department."184
SECTION 7.185
Chapter 6B of Title 10 of the Official Code of Georgia Annotated, relating to Georgia power186
of attorney, is amended in Code Section 10-6B-3, relating to applicability of chapter, by187
revising paragraphs (9) and (10) and by adding a new paragraph to read as follows:188
"(9) Any delegation of authority by a personal representative, trustee, or trust director189
that is expressly provided for under a will or trust instrument or under Title 53, including,190
but not limited to, paragraph (2) of subsection (a) of Code Section 53-7-5, paragraph (1)191
of Code Section 53-12-204, Code Section 53-12-345, and subsection (f) of Code Section192
53-12-503;193
(10) Powers of attorney provided for under Titles 19 and 33; and194
(10)(11) As set forth in Code Section 10-6B-81."195
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SECTION 8.
196
Said chapter is further amended by revising Code Section 10-6B-81, relating to application197
of Chapter 6B, as follows:198
"10-6B-81.199
(a) This Code section and
Code Section 10-6B-19 shall apply retroactively to powers of200
attorney created before July 1, 2018. The remainder of this chapter shall not apply to a201
power of attorney executed before July 1, 2017.202
(b) When Code Section 10-6B-3 this chapter applies to a power of attorney pursuant to203
Code Section 10-6B-3, Chapter 6 of this title shall not apply to such power of attorney.204
(c) When, other than this Code section and Code Section 10-6B-19, this chapter does not205
apply to a power of attorney:206
(1) It shall not affect the application of Chapter 6 of this title; and207
(2) The former provisions of Article 7 of Chapter 6 of this title, as such existed on June208
30, 2017, shall remain applicable."209
SECTION 9.210
Code Section 15-9-127 of the Official Code of Georgia Annotated, relating to concurrent211
jurisdiction with superior courts and probate court jurisdiction, is amended by adding a new212
subsection to read as follows:213
"(d) In a proceeding in the probate court under subsection (a) of this Code section, service214
of summons, notice, or process may be made pursuant to Chapter 11 of Title 53."215
SECTION 10.216
Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is217
amended by revising paragraph (9) of subsection (b) of Code Section 19-7-1, relating to in218
whom parental power lies, how such power lost, and recovery for homicide of child or219
unborn child, as follows:220
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"(9) A superior court order terminating parental rights of the legal father or the biological
221
father who is not the legal father of the child in a petition for legitimation, a petition to222
establish paternity, a divorce proceeding, or a custody proceeding pursuant to this chapter223
or Chapter 5, 8, or 9 of this title, provided that such termination is in the best interest of224
such child; and provided, further, that this paragraph shall not apply to such termination225
when a child has been adopted or is conceived by artificial insemination, in vitro
226
fertilization, or other similar method of assisted reproduction as set forth in subsection227
(a) of Code Section 19-7-21 or when an embryo is adopted as set forth in Article 2 of228
Chapter 8 of this title."229
SECTION 11.230
Said title is further amended by revising Code Section 19-7-21, relating to when children231
conceived by artificial insemination legitimate, as follows:232
"19-7-21.233
(a) All children born within wedlock or within the usual period of gestation thereafter who234
have been conceived by means of artificial insemination, in vitro fertilization, or other235
similar method of assisted reproduction are irrebuttably presumed legitimate if both236
spouses have consented in writing to the use and administration of artificial insemination,237
in vitro fertilization, or other similar method of assisted reproduction.238
(b) Subsection (a) of this Code section shall be subject to Article 2 of Chapter 8 of this239
title, and, in the event of a conflict, the provisions of such article shall prevail."240
SECTION 12.241
Said title is further amended by revising subsection (d) of Code Section 19-7-22, relating to242
petition for legitimation of child, requirement that mother be named as a party, court order,243
effect, claims for custody or visitation, and third-party action for legitimation in response to244
petition to establish paternity, as follows:245
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"(d)(1) Upon the presentation and filing of a legitimation petition, and after a hearing for
246
which notice was provided to all interested parties, the court may issue an order declaring247
the biological father's relationship with the child to be legitimate, provided that such order248
is in the best interests of the child. If such order is issued, the biological father and child249
shall be capable of inheriting from each other in the same manner as if the child was
born250
in lawful wedlock, pursuant to division (2)(A)(i) of Code Section 53-2-3 and251
paragraph (1) of subsection (b) of Code Section 53-2-4. Such order shall specify the252
name by which the child shall be known.253
(2)(A) If the court determines by clear and convincing evidence that the father caused254
his child to be conceived as a result of having nonconsensual sexual intercourse with255
the mother of his child or an offense that consists of the same or similar elements under256
federal law or the laws of another state or territory of the United States, or when the257
mother is less than ten years of age, or an offense which consists of the same or similar258
elements under federal law or the laws of another state or territory of the United States,259
it shall create a presumption against legitimation.260
(B)(i) Notwithstanding division (2)(A)(i) of Code Section 53-2-3, if the court denies261
a legitimation petition under this paragraph, the child shall be capable of inheriting262
from or through his or her father under divisions (2)(A)(ii) through (vi) of Code263
Section 53-2-3 or subparagraph (B) of paragraph (2) of Code Section 53-2-3.264
(ii) Notwithstanding Code Section 53-2-4, if the court denies a legitimation petition265
under this paragraph, the father shall not be capable of inheriting from or through his266
child.267
(C) If there is a pending criminal proceeding in connection with an allegation made268
pursuant to subparagraph (A) of this paragraph, the court shall stay discovery in the269
legitimation action until the completion of such criminal proceeding.270
(D) Except as provided in this paragraph, nothing in this article shall be applied or271
construed to abrogate or limit:272
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(i) The jurisdiction of a probate court or a superior court under Code Section 53-2-20273
to resolve judicially the identity or interest of any heir in accordance with Article 2274
of Chapter 2 of Title 53; or275
(ii) The effect of the findings of such a court in such a proceeding pursuant to Code276
Section 53-2-26."277
SECTION 13.278
Said title is further amended by adding a new subsection to Code Section 19-7-40, relating279
to jurisdiction and administrative determination of paternity, to read as follows:280
"(c) Nothing in this article shall be applied or construed to abrogate or limit:281
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20282
to resolve judicially the identity or interest of any heir in accordance with Article 2 of283
Chapter 2 of Title 53; or284
(2) The effect of the findings of such a court in such a proceeding pursuant to Code285
Section 53-2-26."286
SECTION 14.287
Said title is further amended by revising subsection (e) of Code Section 19-7-43, relating to288
petition, by whom brought, effect of agreement on right to bring petition, stay pending birth289
of child, court order for blood tests, and genetic tests, as follows:290
"(e) In any case for the collection of child support involving the Department of Human291
Services in which the paternity of a child or children has not been established or in which292
the individual receiving services alleges that paternity rests in a person other than the293
previously established father, the Department of Human Services shall order genetic testing294
of the mother, the alleged father, and the child or children as specified in Code Section295
19-7-45. No genetic testing shall be undertaken by the Department of Human Services if296
the child was adopted either by the applicant for services or other alleged parent or if the297
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child was conceived by means of artificial insemination, in vitro fertilization, or other298
similar method of assisted reproduction. The need for genetic testing shall be supported299
by a sworn statement alleging paternity and setting forth facts establishing a reasonable300
possibility of the requisite sexual contact between the parties. The parties shall be given301
notice and an opportunity to contest the order before the Department of Human Services302
prior to the testing or the imposition of any noncooperation sanction."303
SECTION 15.304
Said title is further amended by revising paragraph (3) of subsection (b) and subparagraph305
(d)(1)(C) of Code Section 19-7-54, relating to motion to set aside determination of paternity,306
as follows:307
"(3) The child was not conceived by artificial insemination, in vitro fertilization, or other308
similar method of assisted reproduction while the male ordered to pay child support and309
the child's mother were in wedlock;"310
"(C) The child was conceived by means of artificial insemination, in vitro fertilization,311
or other similar method of assisted reproduction; or"312
SECTION 16.313
Said title is further amended by adding a new Code section to Article 2 of Chapter 11, the314
"Uniform Reciprocal Enforcement of Support Act," to read as follows:315
"19-11-82.316
Nothing in this article shall be applied or construed to abrogate or limit:317
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20318
to resolve judicially the identity or interest of any heir in accordance with Article 2 of319
Chapter 2 of Title 53; or320
(2) The effect of the findings of such a court in such a proceeding pursuant to Code321
Section 53-2-26."322
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SECTION 17.
323
Said title is further amended by adding a new Code section to Article 3 of Chapter 11, the324
"Uniform Interstate Family Support Act," to read as follows:325
"19-11-192.
326
Nothing in this article shall be applied or construed to abrogate or limit:327
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20328
to resolve judicially the identity or interest of any heir in accordance with Article 2 of329
Chapter 2 of Title 53; or330
(2) The effect of the findings of such a court in such a proceeding pursuant to Code331
Section 53-2-26."332
SECTION 18.333
Code Section 24-12-21 of the Official Code of Georgia Annotated, relating to disclosure of334
AIDS confidential information, is amended by revising subsections (y) and (bb) as follows:335
"(y) The protection against disclosure provided by Code Section 24-12-20 shall be waived,336
and AIDS confidential information may be disclosed, to the extent that the person337
identified by such information, his or her; such person's heirs, successors, or assigns, or;338
a beneficiary of such person, including, but not limited to, an executor, administrator,339
person's estate; or the personal representative of such person's estate:340
(1) Files a claim or claims other entitlements under any insurance policy or benefit plan341
or is involved in any civil proceeding regarding such claim;342
(2) Places such person's care and treatment, the nature and extent of his or her injuries,343
the extent of his or her damages, his or her medical condition, or the reasons for his or her344
death at issue in any judicial proceeding; or345
(3) Is involved in a dispute regarding coverage under any insurance policy or benefit346
plan."347
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"(bb) AIDS confidential information may be disclosed as a part of any proceeding or
348
procedure authorized or required pursuant to Chapter 3, 4, or 7 of Title 37,
regarding a349
person who is alleged to be or who is mentally ill, developmentally disabled, or alcoholic350
or drug dependent;, or as a part of any proceeding or procedure authorized or required351
pursuant to Title 29, regarding the guardianship of a person or that the conservatorship of352
a person's estate; or as a part of any proceeding or procedure authorized or required353
pursuant to Title 53 regarding the estate of a deceased person, as follows:354
(1) Any person who files or transmits a petition or other document which that discloses355
AIDS confidential information in connection with any such proceeding or procedure shall356
provide a cover page which that contains only the type of proceeding or procedure, the357
court in which the proceeding or procedure is or will be pending, and the words358
'CONFIDENTIAL INFORMATION' without in any way otherwise disclosing thereon359
the name of any individual or that such petition or other document specifically contains360
AIDS confidential information;361
(2) AIDS confidential information shall only be disclosed pursuant to this subsection362
after disclosure to and with the written consent of the person identified by that363
information;, or that person's parent or guardian if that person is a minor; or has that364
person's guardian, if that person previously has been adjudicated as being incompetent,365
in need of a guardian; the personal representative of that person's estate, if that person is366
deceased; or by order of court obtained in accordance with subparagraph (C) of paragraph367
(3) of this subsection;368
(3) If any person files or transmits a petition or other document in connection with any369
such proceeding or procedure which that discloses AIDS confidential information without370
obtaining consent as provided in paragraph (2) of this subsection, the court receiving such371
information shall either obtain written consent as set forth in that paragraph (2) for any372
further use or disclosure of such information or:373
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(A) Return such petition or other document to the person who filed or transmitted
374
same, with directions against further filing or transmittal
transmitting of such375
information in connection with such proceeding or procedure except in compliance with376
this subsection;377
(B) Delete or expunge all references to such AIDS confidential information from the378
particular petition or other document; or379
(C)(i) If the court determines there is a compelling need for such information in380
connection with the particular proceeding or procedure, petition a superior court of381
competent jurisdiction for permission to obtain or disclose that information. If the382
person identified by the information is not yet represented by an attorney in the383
proceeding or procedure in connection with which the information is sought, the384
petitioning court shall appoint an attorney for such person. The petitioning court shall385
have both that person and that person's attorney personally served with notice of the386
petition and of the date, time, and place of the superior court hearing thereon. Such387
hearing shall not be held sooner than 72 hours after service, unless the information is388
to be used in connection with an emergency guardianship proceeding under Code389
Section 29-4-14, in which event the hearing shall not be held sooner than 48 hours390
after service.391
(ii) The superior court in which a petition is filed pursuant to division (i) of this392
subparagraph shall hold an in camera hearing on such petition. The purpose of the393
hearing shall be to determine whether there is clear and convincing evidence of a394
compelling need for the AIDS confidential information sought in connection with the395
particular proceeding or procedure which that cannot be accommodated by other396
means. In assessing compelling need, the superior court shall weigh the public health,397
safety, or welfare needs or any other public or private need for the disclosure against398
the privacy interest of the person identified by the information and the public interest399
which that may be disserved by disclosures which that may deter voluntary HIV tests. 400
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If the court determines that disclosure of that such information is authorized under401
this subparagraph, the court shall order that such disclosure and shall impose402
appropriate safeguards against any unauthorized disclosure. The records of that403
hearing otherwise shall be under seal; and404
(4) The court having jurisdiction over such proceeding or procedure, when it becomes405
apparent that AIDS confidential information will likely be or has been disclosed in406
connection with such proceeding or procedure, shall take such measures as the court407
determines appropriate to preserve the confidentiality of the disclosed information to the408
maximum extent possible. Such measures shall include, without being but shall not be409
limited to, closing the proceeding or procedure to the public and sealing all or any part410
of the records of the proceeding or procedure containing AIDS confidential information. 411
The records of any appeals taken from any such proceeding or procedure shall also be412
sealed. Furthermore, the court may consult with and obtain the advice of medical experts413
or other counsel or advisers as to the relevance and materiality of such information in414
such proceedings or procedures, provided that the identity of the person identified by415
such information is not thereby revealed."416
SECTION 19.417
Title 29 of the Official Code of Georgia Annotated, relating to guardian and ward, is418
amended by revising Code Section 29-6-1, relating to judges of probate courts as custodians419
of certain funds and authority to collect debts, as follows:420
"29-6-1.421
The judges of the probate courts are, in their discretion, made the legal custodians and422
distributors of all moneys up to $15,000.00 $25,000.00 due and owing to any minor or423
incapacitated adult who is in need of a conservator but who has no legal and qualified424
conservator; and the judges are authorized to receive and collect all such moneys arising425
from insurance policies, benefit societies, legacies, inheritances, or any other source. 426
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Without any appointment or qualifying order, the judge is authorized to take charge of the
427
moneys or funds of the minor or adult by virtue of the judge's office as judge of the probate428
court in the county of residence of the minor or adult; provided, however, that notice shall429
be given to the living parents of a minor, if any, or the guardian of an adult, if any. The430
certificate of the judge that no legally qualified conservator has been appointed shall be431
conclusive and shall be sufficient authority to justify any debtor in making payment on432
claims made by the judge."433
SECTION 20.434
Said title is further amended by revising subsection (b) of Code Section 29-9-15, relating to435
compensation for legal counsel or guardian ad litem, as follows:436
"(b) In connection with any proceeding brought pursuant to the provisions of Chapter 2,437
3, 4, 5, 7, or 11 of this title, unless voluntarily waived, the court may award reasonable fees438
and expenses, commensurate with the tasks performed and time devoted to the proceeding,439
including any appeals, to any legal counsel who is retained by or on behalf of a minor, a440
proposed ward, a ward, the petitioner or petitioners, or any other party to any proceeding441
brought pursuant to the provisions of said chapters. As
as directed by the court in the442
exercise of its sound discretion and as the court may deem to be in the best interest of the443
minor, proposed ward, or ward who is the subject of the particular proceeding."444
SECTION 21.445
Code Section 31-10-9 of the Official Code of Georgia Annotated, relating to registration of446
births, is amended by revising subsections (d) and (f) as follows:447
"(d) When a birth occurs on a moving conveyance within the United States and the child448
is first removed from the conveyance in this state, the birth shall be registered in this state449
and the place where it the child is first removed shall be considered the place of birth. 450
When a birth occurs on a moving conveyance while in international waters or airspace or451
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in a foreign country or its airspace and the child is first removed from the conveyance in
452
this state, the birth shall be registered in this state but the certificate shall show the actual453
place of birth insofar as such place
can be determined."454
"(f) The birth certificate of a child born to a married woman as a result of artificial455
insemination, in vitro fertilization, or other similar method of assisted reproduction, with456
consent of her husband, shall be completed in accordance with the provisions of subsection457
(e) of this Code section."458
SECTION 22.459
Code Section 43-34-37 of the Official Code of Georgia Annotated, relating to persons460
authorized to perform artificial insemination and civil liability of physician or surgeon, is461
amended by revising said Code section as follows:462
"43-34-37.463
(a) Physicians and surgeons licensed to practice medicine in accordance with and under464
this article shall be the only persons authorized to administer or perform artificial465
insemination, in vitro fertilization, or other similar method of assisted reproduction upon466
any female human being. Any other person or persons who shall attempt to administer or467
perform or who shall actually administer or perform artificial insemination, in vitro468
fertilization, or other similar method of assisted reproduction upon any female human being469
shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment470
in the penitentiary for not less than one year nor more than five years.471
(b) Any physician or surgeon who obtains written authorization signed by both the472
husband and the wife authorizing him or her to perform or administer artificial473
insemination, in vitro fertilization, or other similar method of assisted reproduction shall474
be relieved of civil liability to the husband and wife or to any child conceived by artificial475
insemination, in vitro fertilization, or other similar method of assisted reproduction for the476
result or results of said artificial insemination, in vitro fertilization, or other similar method477
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of assisted reproduction, provided that the written authorization provided for in this Code478
section obtained shall not relieve any physician or surgeon from any civil liability arising479
from his or her own negligent administration or performance of artificial insemination, in480
vitro fertilization, or other similar method of assisted reproduction."481
SECTION 23.482
Title 44 of the Official Code of Georgia Annotated, relating to property, is amended by483
revising Code Section 44-5-37, relating to applicability of Code Sections 53-2-112 through484
53-2-114 to elections under or against deed, as follows:485
"44-5-37.486
The principles of Code Sections 53-2-112 through 53-2-114 53-4-70 and 53-4-71 relating487
to elections shall also apply to deeds."488
SECTION 24.489
Said title is further amended by revising Code Section 44-6-203, relating to reform of490
disposition by court to approximate transferor's plan of distribution, as follows:491
"44-6-203.492
Upon the petition of an interested person a trustee, trust director, or other person whose493
interests would be affected, a court shall reform a disposition in the manner that most494
closely approximates the transferor's manifested plan of distribution and is within the495
number of years allowed by paragraph (2) of subsection (a), (b), or (c) of Code Section496
44-6-201 if:497
(1) A nonvested property interest or a power of appointment becomes invalid under Code498
Section 44-6-201;499
(2) A class gift is not but might still become invalid under Code Section 44-6-201 and500
the time has arrived when the share of any class member is to take effect in possession501
or enjoyment; or502
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(3) A nonvested property interest that is not validated by paragraph (1) of subsection (a)
503
of Code Section 44-6-201 can vest, but not within 360 years after its creation."504
SECTION 25.505
Said title is further amended by revising paragraphs (1), (2), and (4) of Code Section506
44-6-204, relating to exceptions to applicability of article, as follows:507
"(1) A nonvested property interest or a power of appointment arising out of a508
nondonative transfer, except a nonvested property interest or a power of appointment509
arising out of:510
(A) A premarital or postmarital agreement;511
(B) A separation or divorce settlement;512
(C) A spouse's election;513
(D) A similar arrangement arising out of a prospective, existing, or previous marital514
relationship between the parties;515
(E) A contract to make or not to revoke a will or trust, including, but not necessarily
516
limited to, a contract made pursuant to Code Section 53-4-30;517
(F) A contract to exercise or not to exercise a power of appointment;518
(G) A transfer in satisfaction of a duty of support; or519
(H) A reciprocal transfer;520
(2) A fiduciary's power relating to the administration or management of assets, including:521
(A) The the power of a fiduciary to sell, lease, or mortgage property,;522
(B) The and the power of a fiduciary to determine principal and income; and523
(C) A power of direction, as such term is defined in Code Section 53-12-500;"524
"(4) A discretionary power of a trustee to distribute or of a trust director to direct the525
distribution of principal before termination of a trust to a beneficiary having an526
indefeasibly vested interest in the income and principal. Nothing; provided, however,527
that nothing contained in paragraphs (2) and (3) of this Code section and this paragraph528
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shall be construed to permit the fiduciary to continue the administration or management
529
of assets once the nonvested property interest becomes invalid as described in subsection530
(a) of Code Section 44-6-201;"531
SECTION 26.532
Said title is further amended by revising subsection (b) of Code Section 44-6-205, relating533
to applicability of article and court reform of nonvested dispositions created before article534
became effective, as follows:535
"(b) With respect to a nonvested property interest or a power of appointment that was536
created before July 1, 2018, and that violates this state's rule against perpetuities as that rule537
existed before July 1, 2018, a court,
upon the petition of an interested party a trustee, trust538
director, or other person whose interests would be affected, may:539
(1) Subject to Code Section 23-1-4, exercise its equitable power;540
(2) Approve a nonjudicial settlement agreement or make any related determination under541
subsection (c) of Code Section 53-12-9;542
(3) Approve a petition to modify or terminate an irrevocable trust under Code Section543
53-12-61; or544
(4) Declare that the exercise of the power to invade the principal of the original trust545
under subsection (b) of Code Section 53-12-62 is appropriate and effective546
so that the nonvested property interest is within the limits of the rule against perpetuities547
applicable when the nonvested property interest or power of appointment was created to548
reform the disposition in the manner that most closely approximates the transferor's549
manifested plan of distribution and is within the limits of the rule against perpetuities550
applicable when the nonvested property interest or power of appointment was created."551
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SECTION 27.
552
Said title is further amended by adding a new Code section to Article 9 of Chapter 6, the553
"Uniform Statutory Rule Against Perpetuities," to read as follows:554
"44-6-207.
555
As used in this article, the term:556
(1) 'Court' means a court of competent jurisdiction as determined in accordance with557
Code Section 53-12-6.558
(2) 'Power of appointment' shall have the same meaning as set forth in Code Section559
53-12-500.560
(3) 'Power of direction' shall have the same meaning as set forth in Code Section561
53-12-500.562
(4) 'Trust' means an express trust, as such term is defined in Code Section 53-12-2."563
SECTION 28.564
Said title is further amended by revising subsections (b) and (e) of Code Section 44-15-3,565
relating to considerations and standard of conduct for institutions receiving gifts, as follows:566
"(b) In addition to complying with the duty of loyalty imposed by law other than this567
chapter, each person responsible for managing and investing an institutional fund shall568
manage and invest such fund in good faith and with the care, skill, and caution an569
ordinarily prudent person in a like position would exercise under similar circumstances,570
considering the purposes, terms, distribution requirements, and other circumstances of the571
institutional fund."572
"(e) Except as otherwise provided by a gift instrument, the following rules shall apply:573
(1) In managing and investing an institutional fund, the following factors, if relevant,574
shall be considered:575
(A) General economic conditions;576
(B) The possible effect of inflation or deflation;577
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(C) The expected tax consequences, if any, of investment decisions or strategies;
578
(D) The role that each investment or course of action plays within the overall579
investment portfolio of such fund;580
(E) The expected total return from income and the appreciation of investments;581
(F) Other resources of the institution;582
(G) The needs of the institution and such fund to make distributions and to preserve583
capital; and
584
(H) An asset's special relationship or special value, if any, to the charitable purposes585
of the institution or to the donor; and586
(I) Any special circumstances;587
(2) Management and investment decisions about an individual asset shall not be made 588
in isolation but rather in the context of the institutional fund's portfolio of investments as589
a whole and as a part of an overall investment strategy having risk and return objectives590
reasonably suited to the institutional fund and to the institution;591
(3) An institution may invest in any kind of property or type of investment consistent592
with the provisions of this Code section;593
(4) An institution shall reasonably manage the risk of concentrated holdings of assets by594
diversifying the investments of the institutional fund or by using some other appropriate595
mechanism, except as provided in this paragraph, as follows:596
(A) The duty imposed by this paragraph shall not apply if the institution reasonably597
determines that, because of special circumstances, or because of the specific purposes,598
terms, distribution requirements, and other circumstances of the institutional fund, the599
purposes of such fund are better served without complying with the duty. For purposes600
of this paragraph, special circumstances shall include an asset's special relationship or601
special value, if any, to the charitable purposes of the institution or to the donor;602
(B) No person responsible for managing and investing an institutional fund shall be603
liable for failing to comply with the duty imposed by this paragraph to the extent that604
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the terms of the gift instrument or express written agreement between the donor and the
605
institution limits or waives the duty; and606
(C) The governing board of an institution may retain property contributed by a donor607
to an institutional fund for as long as the governing board deems advisable;608
(5) Within a reasonable time after receiving property, an institution shall make and carry609
out decisions concerning the retention or disposition of the property or to the rebalancing610
of a portfolio, in order to bring the institutional fund into compliance with the purposes,611
terms, and distribution requirements of the institution or the institutional fund as612
necessary to meet other circumstances of the institution or the institutional fund and the613
requirements of this chapter; and
614
(6) A person that has special skills or expertise, or is selected in reliance upon the615
person's representation that such person has special skills or expertise, has a duty to use616
those skills or expertise in managing and investing institutional funds; and617
(7) In investing and managing institutional funds, an institution may consider the618
personal values of the donor, including, but not limited to, a desire to engage in investing619
strategies that align with social, political, religious, philosophical, environmental,620
governance, or other values or beliefs of the donor; provided, however, that nothing in621
this paragraph shall allow an institutional fund to be used for a purpose other than a622
charitable purpose of the institution."623
SECTION 29.624
Said title is further amended by revising subsection (a) of Code Section 44-15-4, relating to625
management of institutional funds for endowment, as follows:626
"(a) Subject to the intent of a donor expressed in the gift instrument or to any express627
written agreement between a donor and an institution, an institution may appropriate for628
expenditure or accumulate assets of an endowment fund as the institution determines shall629
be prudent for the uses, benefits, purposes, and duration for which the endowment fund is630
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established. Unless stated otherwise in the gift instrument, the assets in an endowment
631
fund shall be donor restricted assets until appropriated for expenditure by the institution. 632
In making a determination to appropriate or accumulate assets, the institution shall act in633
good faith, with the care that an ordinarily prudent person in a like position would exercise634
under similar circumstances,
; shall exercise reasonable care, skill, and caution; and shall635
consider, if relevant, the following factors:636
(1) The duration and preservation of the endowment fund;637
(2) The purposes of the institution and the endowment fund;638
(3) General economic conditions;639
(4) The possible effect of inflation or deflation;640
(5) The expected total return from income and the appreciation of investments;641
(6) Other resources of the institution; and642
(7) The investment policy of the institution; and643
(8) Any special circumstances."644
SECTION 30.645
Said title is further amended by adding new subsections to Code Section 44-15-6, relating646
to modification of restrictions, to read as follows:647
"(e) For purposes of subsection (a) of this Code section, a donor's designee includes, but648
is not limited to, an agent under a power of attorney to the extent authorized by the power649
of attorney and the duly constituted conservator of a donor who is a protected person, as650
such term is defined in Code Section 29-11-2, to the extent such conservator is so651
empowered pursuant to Code Section 29-5-23 or other applicable law.652
(f) For purposes of subsection (b) of this Code section, if the gift instrument establishes653
an express trust, as such term is defined in Code Section 53-12-2, a court shall include a654
probate court or superior court as provided in Code Section 15-9-127 or 53-12-6."655
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SECTION 31.
656
Code Section 50-18-160 of the Official Code of Georgia Annotated, relating to protection657
of personal information of individuals or nonprofit organizations, is amended in658
paragraph (12) of subsection (d) by striking "and" at the end of subparagraph (C), replacing659
the period at the end of subparagraph (D) with "; and", and adding a new subparagraph to660
read as follows:661
"(E) By the Department of Early Care and Learning for purposes authorized in
662
Chapter 1A of Title 20."663
SECTION 32.664
Code Section 51-4-2 of the Official Code of Georgia Annotated, relating to wrongful death665
of spouse or parent, is amended by revising subsection (f) as follows:666
"(f) In actions for recovery under this Code section, the fact that a child has been born out667
of wedlock shall be no bar to recovery, provided that such child born out of wedlock had668
rights of inheritance from or through the child's deceased parent under Code Section669
53-2-3."670
SECTION 33.671
Title 53 of the Official Code of Georgia Annotated, relating to wills, trusts, and672
administration of estates, is amended by revising Code Section 53-1-9, relating to survival673
of common law and equity, as follows:674
"53-1-9.675
Except to the extent that the principles of common law and equity governing wills, trusts,676
and the administration of estates are modified by this title or another provision of law,677
those principles remain the law of this state. Without limitation:678
(1) No provision of this title shall be construed to imply that any other Code section or679
the common law did not, prior to the enactment of such provision, impose, permit, or680
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otherwise address a duty, power, relationship, or any other matter governed by such681
provision; and682
(2) The failure of the General Assembly to codify an established principle of common683
law or equity governing wills, trusts, and the administration of estates shall not be684
construed as evidence that the General Assembly intended to reject that principle unless685
this title or another provision of law is inconsistent with that principle or there is other686
evidence the General Assembly intended that such principle should no longer apply."687
SECTION 34.688
Said title is further amended by revising Code Section 53-2-2, which is reserved, as follows:689
"53-2-2.690
(a) Code Sections 53-2-3 and 53-2-4 shall be subject to the provisions of subparagraph691
(d)(2)(B) of Code Section 19-7-22.692
(b) Nothing in this chapter shall be applied or construed to expand or extend the693
jurisdiction of the probate courts for purposes of Article 2 of Chapter 11 of Title 19, the694
'Uniform Reciprocal Enforcement of Support Act,' or Article 3 of Chapter 11 of Title 19,695
the 'Uniform Interstate Family Support Act.' Reserved."696
SECTION 35.697
Said title is further amended by revising Code Section 53-2-3, relating to inheritance by698
children born out of wedlock, as follows:699
"53-2-3.700
The rights of inheritance of a child born out of wedlock shall be as follows:701
(1) A child born out of wedlock may inherit in the same manner as though legitimate702
from or through the child's mother, the other children of the mother, and any other703
maternal kin;704
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(2)(A) A child born out of wedlock may not inherit from or through the child's father,
705
the other children of the father, or any paternal kin by reason of the paternal kinship,706
unless:707
(i) A court of competent jurisdiction has entered an order declaring the child to be708
legitimate, under the authority of Code Section 19-7-22 or such other authority as may709
be provided by law;710
(ii) A court of competent jurisdiction has otherwise entered a court order establishing711
paternity;
that has not been set aside as provided in Code Section 19-7-54; provided,712
however, that:713
(I) A temporary order of support entered under subsection (a) of Code Section714
19-7-46.2 or an order of support entered under subsection (a) of Code Section715
19-7-49 shall not be conclusive under this division unless such order also satisfies716
division (i) of this subparagraph or unless the court before which proceedings on the717
estate are pending determines, in its discretion, that such order also satisfies division718
(vi) of this subparagraph;719
(II) A support order, as such term is defined in Code Section 19-11-42, shall not be720
conclusive under this division unless such order also satisfies division (i) of this721
subparagraph or unless the court before which proceedings on the estate are pending722
determines, in its discretion, that such order also satisfies division (vi) of this723
subparagraph;724
(III) A temporary order of support entered under subsection (e) of Code Section725
19-11-48 or a temporary order under Code Section 19-11-74 shall not be conclusive726
under this division unless such order also satisfies division (i) of this subparagraph727
or unless the court before which proceedings on the estate are pending determines,728
in its discretion, that such order also satisfies division (vi) of this subparagraph;729
(IV) A support order, as such term is defined in Code Section 19-11-101, shall not730
be conclusive under this division unless such order also satisfies division (i) of this731
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subparagraph or unless the court before which proceedings on the estate are pending732
determines, in its discretion, that such order also satisfies division (vi) of this733
subparagraph;734
(V) A temporary child support order entered under paragraph (3) of subsection (b)735
of Code Section 19-11-140 shall be conclusive under this division. A temporary736
child support order entered under paragraph (5) of subsection (b) of Code Section737
19-11-140 shall satisfy division (vi) of this subparagraph. Any other temporary738
child support order entered under subsection (b) of Code Section 19-11-140 shall739
not be conclusive under this division unless such order also satisfies division (i) of740
this subparagraph or unless the court before which proceedings on the estate are741
pending determines, in its discretion, that such order also satisfies division (vi) of742
this subparagraph;743
(VI) For purposes of this division, an administrative determination of paternity744
made pursuant to subsection (b) of Code Section 19-7-40 shall have the same force745
and effect as a judicial decree;746
(VII) For purposes of this division, a court order for child support, as such term is747
defined in Code Section 19-11-3, issued by an administrative or quasi-judicial entity748
of this state or another state shall have the same force and effect as a judicial decree;749
(VIII) For purposes of this division, a judgment determining parentage of a child750
issued by a tribunal or a foreign tribunal, as such terms are defined in Code Section751
19-11-101, shall be given the same force and effect by the court before which752
proceedings on the estate are pending as such judgment would be given in the753
tribunals of Georgia, as designated by subsection (a) of Code Section 19-11-102;754
and755
(IX) Nothing in this division shall be applied or construed to make available to the756
probate courts the information contained in the state case registry pursuant to757
subsection (e) of Code Section 19-11-39;758
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(iii) The father has executed a sworn statement signed by him attesting to the
759
parent-child relationship, including, but not limited to:
760
(I) A voluntary acknowledgment of legitimation that was valid under the former761
provisions of Code Section 19-7-21.1 and was executed on or before June 30, 2016;762
(II) A voluntary acknowledgment of paternity that satisfies the requirements of763
subsection (b) of Code Section 19-7-46.1 and is neither timely rescinded nor764
successfully challenged as provided by subsection (b) or (c) of Code765
Section 19-7-46.1;766
(III) An acknowledgment of paternity made under oath pursuant to Code Section767
19-11-13; or768
(IV) A voluntary acknowledgment of paternity that is admissible to establish769
parentage of the child under subsection (j) of Code Section 19-11-135;770
(iv)(I) The father has signed the birth certificate of the child.771
(II) The name or social security account number of the father appears on the birth772
certificate of the child or on a certified copy of such birth certificate with the written773
consent of the father in the manner provided by subsection (a) of Code Section774
19-7-46.1 or paragraph (2) of subsection (e) of Code Section 31-10-9.775
(III) The father has acknowledged paternity and the social security account776
information of the father is entered on the birth certificate of the child in the manner777
provided by subsection (a) of Code Section 31-10-9.1; or778
(v) The father has otherwise acknowledged paternity under oath in any manner779
satisfying the definition set forth in paragraph (14) of Code Section 19-11-3 or the780
requirements of subsection (a) of Code Section 19-11-14; or781
(vi) There is other clear and convincing evidence that the child is the child of the782
father.783
(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of784
wedlock may inherit from or through the father, other children of the father, or any785
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paternal kin by reason of the paternal kinship if evidence of the rebuttable
786
presumption of paternity described in this subparagraph is filed with the court before787
which proceedings on the estate are pending and the presumption is not overcome to788
the satisfaction of the trier of fact by clear and convincing evidence.789
(ii) There shall exist a rebuttable presumption of paternity of a child born out of790
wedlock if:
791
(I) The child was born to a mother who was a recipient intended parent as the result792
of an embryo relinquishment pursuant to Article 2 of Chapter 8 of Title 19, the793
child's mother was not married to the presumptive father at the time of the birth of794
the child, the child's mother and presumptive father each, as a recipient intended795
parent, executed a written contract satisfying the requirements of subsection (a) of796
Code Section 19-8-41, the child is presumed to be the legal child of the presumptive797
father under subsection (d) of Code Section 19-8-41, and no expedited order of798
adoption or parentage complying with the requirements of Code Section 19-8-43799
has been entered by a court of competent jurisdiction as a final order vesting800
parental rights and responsibilities in the child's presumptive father as a recipient801
intended parent; or802
(II) Scientifically credible parentage-determination genetic testing establishes at803
least a 97 percent probability of paternity. Parentage-determination Scientifically804
credible parentage-determination genetic testing shall include, but not necessarily805
be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme,806
and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA)807
probes. Parentage-determination genetic testing shall be of a type reasonably relied808
upon by experts in the field of genetic testing; shall be conducted by a laboratory809
accredited by the AABB, formerly known as the American Association of Blood810
Banks, or a successor to its functions, or by an accrediting body designated by the811
secretary of the United States Department of Health and Human Services; and shall812
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be performed by a duly qualified licensed practicing physician, duly qualified813
immunologist, or other duly qualified person; provided, however, that in all cases814
the court before which proceedings on the estate are pending shall determine the815
number and qualifications of the experts.816
(C) If any one of the requirements of divisions (i) through (v) (vi) of subparagraph (A)817
of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph818
(B) of this paragraph shall have been established and shall not have been rebutted by819
the presentation of clear and convincing evidence as determined by the trier of fact, a820
child born out of wedlock may inherit in the same manner as though legitimate from821
and through the child's father, the other children of his or her father, and any other822
paternal kin;.823
(D) In determining whether clear and convincing evidence has been presented under824
this paragraph, the trier of fact may consider and determine the relevance, materiality,825
and weight of any admissible evidence; provided, however, that:826
(i) The requirement of reasonable certainty only, as provided by subsection (a) of827
Code Section 24-14-40, shall not apply to such determination; and828
(ii) The party bearing the burden of proof that the child is the child of the father by829
the presentation of clear and convincing evidence under division (vi) of subparagraph830
(A) of this paragraph shall not be relieved from the onus of proving identity, as831
provided by subsection (b) of Code Section 24-14-40.832
(E) Except as provided by division (d)(2)(B)(i) of Code Section 19-7-22, nothing in833
this paragraph shall be applied or construed to abrogate or limit:834
(i) The jurisdiction of a probate court or a superior court under Code Section 53-2-20835
to resolve judicially the identity or interest of any heir in accordance with Article 2836
of this chapter; or837
(ii) The effect of the findings of such a court in such a proceeding pursuant to Code838
Section 53-2-26;839
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(3) In distributions under this Code section, the children of a deceased child born out of
840
wedlock shall represent that deceased child in the manner provided by Code Section
841
53-2-1; and842
(4) The limitation imposed by subsection (b) of Code Section 19-11-14 upon the full843
faith and credit to be given by the courts of this state to a determination of paternity made844
by another state shall not affect the rights of inheritance of a child under a voluntary845
acknowledgment or an administrative or judicial determination otherwise satisfying the846
requirements of this Code section."847
SECTION 36.848
Said title is further amended by revising Code Section 53-2-4, relating to inheritance from849
children born out of wedlock, as follows:850
"53-2-4.851
(a) The mother of a child born out of wedlock, the other children of the mother, and other852
maternal kin may inherit from and through the child born out of wedlock in the same853
manner as though the child were legitimate.854
(b) The father of a child born out of wedlock, the other children of the father, and other855
paternal kin may inherit from and through the child born out of wedlock in the same856
manner as if the child were legitimate if:857
(1) A court of competent jurisdiction has entered an order declaring the child to be858
legitimate under the authority of Code Section 19-7-22 or such other authority as may be859
provided by law;860
(2) A court of competent jurisdiction has otherwise entered a court order establishing861
paternity that has not been set aside as provided in Code Section 19-7-54; provided,862
however, that:863
(A) A temporary order of support entered under subsection (a) of Code Section864
19-7-46.2 or an order of support entered under subsection (a) of Code Section 19-7-49865
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shall not be conclusive under this paragraph unless such order also satisfies paragraph866
(1) of this subsection;867
(B) A support order, as such term is defined in Code Section 19-11-42, shall not be868
conclusive under this paragraph unless such order also satisfies paragraph (1) of this869
subsection;870
(C) A temporary order of support entered under subsection (e) of Code Section871
19-11-48 or a temporary order under Code Section 19-11-74 shall not be conclusive872
under this paragraph unless such order also satisfies paragraph (1) of this subsection;873
(D) A support order, as such term is defined in Code Section 19-11-101, shall not be874
conclusive under this paragraph unless such order also satisfies paragraph (1) of this875
subsection;876
(E) A temporary child support order entered under paragraph (3) of subsection (b) of877
Code Section 19-11-140 shall be conclusive under this paragraph. Any other temporary878
child support order entered under subsection (b) of Code Section 19-11-140 shall not879
be conclusive under this paragraph unless such order also satisfies paragraph (1) of this880
subsection;881
(F) For purposes of this paragraph, an administrative determination of paternity made882
pursuant to subsection (b) of Code Section 19-7-40 shall have the same force and effect883
as a judicial decree;884
(G) For purposes of this paragraph, a court order for child support, as such term is885
defined in Code Section 19-11-3, issued by an administrative or quasi-judicial entity886
of this state or another state shall have the same force and effect as a judicial decree;887
(H) For purposes of this paragraph, a judgment determining parentage of a child issued888
by a tribunal or a foreign tribunal, as such terms are defined in Code Section 19-11-101,889
shall be given the same force and effect as such judgment would be given in the890
tribunals of Georgia, as designated by subsection (a) of Code Section 19-11-102; and891
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(I) Nothing in this paragraph shall be applied or construed to make available to the892
probate courts the information contained in the state case registry pursuant to893
subsection (e) of Code Section 19-11-39;894
(3)(A) The father has, during the lifetime of the child, executed a sworn statement895
signed by the father attesting to the parent-child relationship, including, but not limited896
to:897
(i) A voluntary acknowledgment of legitimation that was valid under the former898
provisions of Code Section 19-7-21.1 and was executed on or before June 30, 2016;899
(ii) A voluntary acknowledgment of paternity that satisfies the requirements of900
subsection (b) of Code Section 19-7-46.1 and is neither timely rescinded nor901
successfully challenged as provided by subsection (b) or (c) of Code Section902
19-7-46.1;903
(iii) An acknowledgment of paternity made under oath pursuant to Code Section904
19-11-13; or905
(iv) A voluntary acknowledgment of paternity that is admissible to establish906
parentage of the child under subsection (j) of Code Section 19-11-135.;907
(B) However, provided, however, that when the court determines by clear and908
convincing evidence that the father caused his child to be conceived as a result of909
having nonconsensual sexual intercourse with the mother of his child or when the910
mother is less than ten years of age, such sworn statement shall be insufficient for911
purposes of this subsection;912
(4) During The father has, during the lifetime of the child,:913
(A) The father has signed the birth certificate of the child; or914
(B) The name or social security account number of the father appears on the birth915
certificate of the child or on a certified copy of such birth certificate with the written916
consent of the father in the manner provided by subsection (a) of Code Section917
19-7-46.1 or paragraph (2) of subsection (e) of Code Section 31-10-9; or918
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(C) The father has acknowledged paternity and the social security account information919
of the father has been entered on the birth certificate of the child in the manner provided920
by subsection (a) of Code Section 31-10-9.1;921
(5) During the lifetime of the child, the father has otherwise acknowledged paternity922
under oath in any manner satisfying the definition set forth in paragraph (14) of Code923
Section 19-11-3 or the requirements of subsection (a) of Code Section 19-11-14;924
provided, however, that, when the court determines by clear and convincing evidence that925
the father caused his child to be conceived as a result of having nonconsensual sexual926
intercourse with the mother of his child or when the mother is less than ten years of age,927
such acknowledgment under oath shall be insufficient for purposes of this subsection; or928
(5)(6) The presumption of paternity described in division (2)(B)(ii) of Code Section929
53-2-3 has been established and has not been rebutted by the presentation of clear and930
convincing evidence as determined by the trier of fact.931
(c) In determining whether clear and convincing evidence has been presented under932
paragraph (6) of subsection (b) of this Code section, the trier of fact may consider and933
determine the relevance, materiality, and weight of any admissible evidence; provided,934
however, that the requirement of reasonable certainty only, as provided by subsection (a)935
of Code Section 24-14-40, shall not apply to such determination.936
(d) Except as provided by division (d)(2)(B)(ii) of Code Section 19-7-22, nothing in937
subsection (b) of this Code section shall be applied or construed to abrogate or limit:938
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20939
to resolve judicially the identity or interest of any heir in accordance with Article 2 of this940
chapter; or941
(2) The effect of the findings of such a court in such a proceeding pursuant to Code942
Section 53-2-26.943
(e) The limitation imposed by subsection (b) of Code Section 19-11-14 upon the full faith944
and credit to be given by the courts of this state to a determination of paternity made by945
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another state shall not affect the rights of inheritance of the father of a child born out of946
wedlock, the other children of the father, and other paternal kin under a voluntary947
acknowledgment or an administrative or judicial determination otherwise satisfying the948
requirements of subsection (b) of this Code section."949
SECTION 37.950
Said title is further amended by revising Code Section 53-2-5, relating to inheritance from951
children conceived by artificial insemination, as follows:952
"53-2-5.953
(a) An individual conceived by artificial insemination, in vitro fertilization, or other similar954
method of assisted reproduction and presumed legitimate in accordance with Code Section955
19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of956
intestacy from the parents and from relatives of the parents, and the parents and relatives957
of the parents shall likewise be entitled to inherit as heirs from and through such individual.958
(b) Subsection (a) of this Code section shall be subject to Article 2 of Chapter 8 of Title959
19, and, in the event of a conflict, the provisions of such article shall prevail."960
SECTION 38.961
Said title is further amended by adding a new Code section to Article 1 of Chapter 2, relating962
to descent and distribution, to read as follows:963
"53-2-9.964
As used in this article, the term 'child born out of wedlock' shall have the same meaning965
as set forth in Code Section 19-7-23."966
SECTION 39.967
Said title is further amended by revising Code Section 53-2-20, relating to jurisdiction of968
probate or superior court, as follows:969
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"53-2-20.
970
(a)
The identity or interest of any heir may be resolved judicially upon application to the971
probate court that has jurisdiction by virtue of a pending administration or that would have972
jurisdiction in the event of an administration of the estate of the decedent. Alternatively,973
the petition may be filed in the superior court of the county where the probate court having974
jurisdiction, as defined in this Code section, is located; provided, however, that, if the975
petition is filed in connection with a contested proceeding to determine a purported heir's976
entitlement to a year's support from the decedent's estate pursuant to Chapter 3 of this title,977
such petition must be filed in the probate court having jurisdiction.978
(b) The proceedings for the determination of such questions shall conform to the979
requirements set forth in this article.980
(c) Regardless of its terms, an agreement, other than an agreement approved in accordance981
with Article 3 of Chapter 7 of Title 19 by a court having jurisdiction under Code Section982
19-7-40, between an alleged or presumed father of an individual claiming to be an heir and983
such individual claiming to be an heir or the mother of such individual claiming to be an984
heir shall not bar a petition under this article."985
SECTION 40.986
Said title is further amended by revising Code Section 53-2-21, relating to filing of petition,987
as follows:988
"53-2-21.989
(a) Any personal representative, guardian, conservator, committee, trustee, trust director,990
other fiduciary, or other person having a status which that either by operation of law or991
pursuant to written instrument devolves upon such person a duty of distributing property992
to heirs may file a petition for determination of heirship as provided in Code Section993
53-2-20. The petition shall allege:994
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(1) The the names, addresses, ages, and relationship, so far as known to the petitioner,995
of all parties at in interest, other than creditors, and the nature and character of such996
interests.; and997
(2) Whether The petition shall further allege whether the petitioner has reason to998
apprehend that there may be others entitled to participate in the distribution whose names999
are unknown to the petitioner.1000
(b) With respect to the estate of a decedent who the petitioner knows or has reason to1001
apprehend is an obligor within the meaning of subparagraph (B) of paragraph (17) of Code1002
Section 19-11-101, an individual who is an obligee within the meaning of subparagraph (C)1003
of paragraph (16) of Code Section 19-11-101 is a party in interest for purposes of1004
subsection (a) of this Code section."1005
SECTION 41.1006
Said title is further amended by revising Code Section 53-2-22, relating to petition by person1007
claiming to be heir or distributee, as follows:1008
"53-2-22.1009
(a) Any individual claiming to be an heir or any person in any way interested as a1010
distributee in any property under the laws of intestacy may apply to either the probate court1011
or the superior court specified in Code Section 53-2-20 to have the claim of heirship and1012
quantity of interest established. The petition in such a case shall contain the same1013
averments as to all parties at in interest required of persons filing under Code Section1014
53-2-21 with the person charged with the duty of distribution being named as a party.1015
(b) With respect to the estate of a decedent who is an obligor within the meaning of1016
subparagraph (B) of paragraph (17) of Code Section 19-11-101, an individual who is an1017
obligee within the meaning of subparagraph (C) of paragraph (16) of Code Section1018
19-11-101 is a party in interest who may file a petition for determination of heirship under1019
subsection (a) of this Code section."1020
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SECTION 42.
1021
Said title is further amended by revising Code Section 53-2-23, relating to superior court1022
procedure, as follows:1023
"53-2-23.1024
(a)
Upon the filing in a superior court of a petition described in Code Section 53-2-21 or1025
53-2-22, service on the parties in interest shall be effected in the same manner as prescribed1026
in cases in which equitable relief is sought; and the provided, however, that the superior1027
court additionally may order service in the manner provided by Code Section 19-7-41. The1028
case shall thereafter proceed to judgment in the manner provided for such cases by the rules1029
of practice in the superior courts.1030
(b) With respect to a direct request seeking determination of parentage of a child pursuant1031
to Part 7 of Article 3 of Chapter 11 of Title 19 that is filed by a petitioner in the superior1032
court as a designated tribunal under subsection (a) of Code Section 19-11-102, this article1033
shall apply in the proceeding, as provided by subsection (a) of Code Section 19-11-184, to1034
the extent the petitioner seeks such determination of parentage for the purpose of1035
establishing the identity or interest of such child as an heir of the decedent; provided,1036
however, that nothing in this subsection shall be applied or construed to expand or extend1037
the jurisdiction of the probate courts for purposes of Article 3 of Chapter 11 of Title 19, the1038
'Uniform Interstate Family Support Act,' or to expand or extend the jurisdiction of the1039
Office of State Administrative Hearings and the Department of Human Services for1040
purposes of this article."1041
SECTION 43.1042
Said title is further amended by revising Code Section 53-2-24, relating to probate court1043
procedure, as follows:1044
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"53-2-24.
1045
Upon the filing in a probate court of a petition described in Code Section 53-2-21 or1046
53-2-22, a citation shall be issued and parties in interest shall be served as provided in1047
Chapter 11 of this title; provided, however, that the probate court additionally may order
1048
service in the manner provided by Code Section 19-7-41."1049
SECTION 44.1050
Said title is further amended by revising Code Section 53-2-25, relating to intervention by1051
person claiming to be heir or distributee, as follows:1052
"53-2-25.1053
Any individual claiming to be an heir or any person in any way interested as a distributee1054
and who is not named as such in any petition filed and pending under this article may file1055
a motion to intervene in the proceeding pursuant to Code Section 9-11-24."1056
SECTION 45.1057
Said title is further amended by revising Code Section 53-2-26, relating to effect of findings1058
of court, as follows:1059
"53-2-26.1060
(a) In the absence of fraud, the findings of the superior court or the probate court in a1061
proceeding brought under this article shall be binding and conclusive as to every person1062
and as to every issue decided.1063
(b) With respect to the judgment of the superior court or the probate court in a proceeding1064
brought under this article, nothing in subsection (a) of this Code section shall be applied1065
or construed to abrogate or infringe:1066
(1) Any right of appeal provided by Title 5; or1067
(2) Any right to relief provided by Code Section 9-11-60."1068
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SECTION 46.
1069
Said title is further amended by revising Code Section 53-2-27, relating to DNA testing for1070
kinship, procedure, and costs, as follows:1071
"53-2-27.1072
(a)(1)
When the kinship of any party in interest to a decedent is in controversy in any1073
proceeding under this article, a probate court or superior court may order the removal and1074
testing of deoxyribonucleic acid (DNA) samples from the remains of the decedent and1075
from any party in interest whose kinship to the decedent is in controversy for purposes1076
of comparison and determination of the statistical likelihood of such kinship; provided,1077
however, that no DNA testing shall be ordered with respect to any party in interest whose1078
kinship to the decedent was created or terminated by a decree of adoption, pursuant to1079
subsection (a) of Code Section 19-8-19, unless the right of inheritance of such party in1080
interest was not affected by the adoption, pursuant to subsection (b) of Code Section1081
19-8-19, or if such party in interest was conceived by means of artificial insemination,1082
in vitro fertilization, or other similar method of assisted reproduction; and provided,1083
further, that, for purposes of this subsection, a decree of adoption shall include:1084
(A) Any such decree entered pursuant to Article 1 of Chapter 8 of Title 19;1085
(B) Any such decree recognized in this state pursuant to Code Section 19-8-22; or1086
(C) A final order entered pursuant to Code Section 19-8-43.1087
(2) The court may order the disinterment of the decedent's remains if reasonably1088
necessary to obtain such DNA samples for testing under this subsection.1089
(b) The An order pursuant to subsection (a) of this Code section may be made entered only1090
on motion for good cause shown and upon notice to all parties in interest, and such order1091
shall specify the time, place, manner, conditions, and scope of the removal and testing of1092
samples, and the person or persons by whom it is such removal and testing of DNA1093
samples are to be made. When such motion is made prior to the birth of a child whose1094
kinship to the decedent is in controversy, such order shall direct that the DNA testing be1095
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conducted as soon as medically feasible after the birth of such child and may stay the1096
proceedings until after the child's birth except service of notice; provided, however, that1097
the requirements of paragraph (1) of subsection (b) of Code Section 53-2-1 shall remain1098
applicable to such child. Such motion, when made by a party in interest, shall be supported1099
by affidavit setting forth:1100
(1) The factual basis for a reasonable belief that the party in interest whose kinship to the1101
decedent is in controversy is or is not so related; and1102
(2) If disinterment of the decedent's remains is sought, the factual basis for a reasonable1103
belief that reliable DNA samples from the decedent are not otherwise reasonably1104
available from any other source.1105
(c) Upon request of a party in interest to a proceeding under this article or as ordered by1106
the court on its own motion in the exercise of its discretion, the movant shall, within ten1107
days after such request is made or such order is entered, but in no event later than ten days1108
prior to the date of a hearing at which such report may be introduced into evidence, deliver1109
to all parties in interest a copy of a detailed written report of the tester and of any other1110
expert or other qualified person involved in the determination of such statistical likelihood1111
setting out his or her findings, including the results of all tests made and conclusions or1112
opinions based thereon. Unless a party in interest objects in writing within seven days after1113
receiving such report and prior to the date of such hearing, such report shall be admitted1114
in evidence without the need for foundation testimony or other proof of authenticity or1115
accuracy. When a timely objection is filed, such report shall be admitted in evidence when1116
offered by a duly qualified licensed practicing physician, duly qualified immunologist, or1117
other duly qualified person; provided, however, that in all cases the court shall determine1118
the number and qualifications of the experts. Other relevant evidence shall be admitted as1119
is deemed appropriate by the court. To provide any party in interest an adequate1120
opportunity to be heard or as otherwise appears reasonably necessary to a just1121
determination in a proceeding under this article, the court shall grant a continuance of any1122
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such hearing. Upon motion of any party in interest or on the court's own motion, any1123
hearing or trial held in a proceeding under this article may be held in closed court without1124
any person other than those necessary to the proceeding being admitted.1125
(d)(1) The costs of obtaining and testing of such DNA samples, including the costs of1126
disinterment and reinterment of the remains of the decedent, if necessary, as well as the1127
costs of providing the report, shall be assessed against and paid by the moving party, and1128
the court may award such costs as part of its final decree; provided, however, that the1129
court may, in its discretion after all parties in interest have been given reasonable1130
opportunity to be heard, cast all or part of such costs against one or more parties in1131
interest upon entering a finding of fact that any such party has asserted in bad faith a1132
position with respect to the kinship in controversy in a proceeding under this article or1133
has failed unreasonably to cooperate with an order for DNA testing entered pursuant to1134
this Code section. The costs of disinterment may include a reasonable fee for services1135
provided by a cemetery company in connection therewith, subject to the limitation upon1136
such charges imposed by subsection (d) of Code Section 10-14-17.1137
(2) Except as otherwise provided by paragraph (1) of this subsection, the court may, in1138
its discretion after all parties in interest have been given reasonable opportunity to be1139
heard, order reasonable fees of counsel, experts, and guardians ad litem and other costs1140
of the proceeding, including pretrial proceedings, to be paid by the parties in interest in1141
proportions and at times determined by the court.1142
(3) The trier of fact shall receive without foundation or the need for third-party testimony1143
evidence of the costs and fees provided for by this subsection, and the evidence so1144
presented shall constitute prima-facie evidence of the amounts of the costs so incurred. 1145
Copies of bills for the obtaining and testing of DNA samples, including the costs of1146
disinterment and reinterment of the remains of the decedent, if necessary, furnished to all1147
parties in interest at least ten days prior to the date of a hearing at which such copies of1148
bills may be introduced into evidence, are admissible in evidence to prove that the1149
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charges billed were reasonable, necessary, and customary; provided, however, that1150
nothing in this paragraph shall be construed to limit the right of a thorough and sifting1151
cross-examination as to such evidence.1152
(e) DNA testing performed pursuant to this Code section shall be conducted by a1153
laboratory certified by the American Association of Blood Banks, shall be conducted so1154
that the results meet the standards the American Association of Blood Banks requires in1155
order for such results to be admitted as evidence in a court of law, and shall be performed1156
by a duly qualified licensed practicing physician, duly qualified immunologist, or other1157
duly qualified person; provided, however, that in all cases the court before which1158
proceedings on the estate are pending shall determine the number and qualifications of the1159
experts.1160
(f) An order for DNA testing entered pursuant to this Code section shall be enforceable by1161
contempt; provided, however, that, if the movant refuses to submit to such an order, the1162
court may, in its discretion after all parties in interest have been given reasonable1163
opportunity to be heard, dismiss or strike the movant's pleadings upon motion by any party1164
in interest or on the court's own motion.1165
(g) Except as ordered by the court for good cause shown pursuant to subsection (b) of this1166
Code section, the genetic material collected for DNA testing performed pursuant to this1167
Code section:1168
(1) If collected through the disinterment of the decedent's remains, shall be destroyed1169
within a reasonable time as determined by the court;1170
(2) If made available from a source other than through the disinterment of the decedent's1171
remains, shall be destroyed or returned in the manner reasonably directed by such source1172
or in accordance with such source's standard rules and regulations; and1173
(3) Shall not be shared with any other person or entity except to the extent reasonably1174
necessary for compliance with paragraphs (1) and (2) of this subsection.1175
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(h) The disinterment and reinterment of the decedent's remains in accordance with a court1176
order entered pursuant to subsection (a) of this Code section:1177
(1) Shall not require a permit under Code Section 12-3-52, 12-3-82, or 36-72-4 as a1178
condition precedent to such disinterment;1179
(2) Shall not require authorization under subsection (f) of Code Section 31-10-20 as a1180
condition precedent to such disinterment or reinterment;1181
(3) Shall not constitute a disturbance, destruction, defacing, mutilation, removal, or1182
exposure of interred human remains under Code Section 31-21-6;1183
(4) Shall not constitute a violation of any provision of Code Section 31-21-44;1184
(5) Shall be supervised, monitored, or carried out as provided in Code Section 36-72-151185
when such disinterment or reinterment is in an abandoned cemetery or burial ground, as1186
defined in Code Section 36-72-2; provided, however, that nothing in Code Section1187
36-72-15 shall affect the assessment, allocation, or payment of costs ordered by the court1188
pursuant to subsection (d) of this Code section; and1189
(6) May be done by any person who is or is able to be authorized to disinter the remains1190
of a human body under Code Section 45-16-45 or subsection (b) of Code Section1191
45-16-51; provided, however, that nothing in this paragraph shall limit the persons whom1192
the court may designate to perform such disinterment pursuant to subsection (b) of this1193
Code section.1194
(i) Any person disinterring or reinterring a decedent's remains in accordance with a court1195
order entered pursuant to subsection (a) of this Code section shall be deemed to be a person1196
having duties imposed upon that person relating to the possession or disposition of dead1197
bodies while in the performance of said duties within the meaning of subsection (b) of1198
Code Section 31-21-44.1199
(j) DNA testing performed pursuant to this Code section shall be deemed to be genetic1200
testing conducted to obtain information for therapeutic or diagnostic purposes within the1201
meaning of subsection (a) of Code Section 33-54-3; provided, however, that DNA testing1202
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performed pursuant to this Code section may be conducted without written consent prior1203
to the decedent's death.1204
(k) Any court issuing an order with respect to a determination of heirship under this article1205
shall not, insofar as possible, attach the written results from DNA testing to any pleading1206
or court order."1207
SECTION 47.1208
Said title is further amended by adding a new Code section to Article 2 of Chapter 2, relating1209
to judicial determination of heirs and interests, to read as follows:1210
"53-2-28.1211
(a) Any proceeding brought under this article is a civil action, which shall be governed by1212
the rules of civil procedure except as otherwise expressly provided in this article. Except1213
to the extent otherwise provided in Code Section 53-2-27, expressly provided in this Code1214
section, or modified by another applicable statute, the common law as expounded by1215
Georgia courts shall continue to be applied to the admission and exclusion of evidence and1216
to procedures at trial in proceedings brought under this article.1217
(b) If in any proceeding brought under this article no answer or objection has been filed1218
within the time required by Chapter 11 of this title or by Chapter 11 of Title 9, the 'Georgia1219
Civil Practice Act,' as applicable, the case shall automatically become in default unless the1220
time for filing such answer or objection has been extended as provided by law. In any1221
proceeding brought under this article that has become in default:1222
(1) In the probate court, the default thereafter shall be governed by Code Section1223
15-9-47; and1224
(2) In the superior court, the default thereafter shall be governed by Code Section1225
9-11-55.1226
(c) In proceedings under this article, the provisions of Title 19 shall be supplemental to the1227
provisions of this title, and the provisions of this title shall be construed and applied in para1228
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materia with the provisions of Title 19, except to the extent that the provisions of Title 191229
are in conflict with or are incompatible with the provisions of this title."1230
SECTION 48.1231
Said title is further amended by revising subsection (c) of Code Section 53-2-40, relating to1232
petition, as follows:1233
"(c) The personal representative of the estate of a deceased heir is authorized to agree to1234
the division on behalf of that such heir. If the estate of a deceased heir has no personal1235
representative, such deceased heir's estate may be represented in the proceeding by a1236
guardian, pursuant to Code Section 53-11-2, and such guardian is authorized to agree to the1237
division on behalf of such heir."1238
SECTION 49.1239
Said title is further amended by revising subsection (b) of Code Section 53-2-51, relating to1240
procedure, as follows:1241
"(b) Upon filing of the petition, the probate court:1242
(1) Shall shall issue a citation as provided in Chapter 11 of this title, requiring the heirs,1243
if any, to file any objection to the petition by a date that is at least 60 days from the date1244
of the citation,;1245
(2) Shall and shall order notice by publication to all heirs of the decedent as provided in1246
Code Section 53-11-4; and1247
(3) May direct any additional service, as provided in Code Section 53-11-5."1248
SECTION 50.1249
Said title is further amended by revising paragraph (2) of subsection (b) of and by adding a1250
new subsection to Code Section 53-4-5, relating to written statement or list disposing of1251
items of tangible personal property, to read as follows:1252
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"(2) Describes the items and the beneficiaries recipients thereof with reasonable1253
certainty; and"1254
"(c) A written statement or list meeting the requirements of subsection (b) of this Code1255
section shall not be deemed to be the testator's will or a part of such testator's will."1256
SECTION 51.1257
Said title is further amended by adding a new subsection to Code Section 53-4-20, relating1258
to required writing, signing, witnesses, and codicil, to read as follows:1259
"(d) A will or codicil that was executed or attested pursuant to the authority of the1260
Governor's Executive Order 04.09.20.01 shall not be treated as invalid solely because it1261
was not executed or attested in the testator's physical presence."1262
SECTION 52.1263
Said title is further amended by revising Code Section 53-5-8, relating to notice to1264
beneficiary provided by personal representative and representation for beneficiaries, as1265
follows:1266
"53-5-8.1267
(a) As used in this Code section, the term 'beneficiary' means a person, including a trust,1268
that is designated in a will to take an interest in real or personal property; that has a present1269
interest, including, but not limited to, a vested remainder interest, but not including a trust1270
beneficiary where there is a trustee who is not also the personal representative required to1271
give notice; and whose identity and whereabouts are known or may be determined by1272
reasonable diligence. The personal representative shall have a duty to notify the1273
beneficiaries of a testate estate of the probate of the will and the name and mailing address1274
of such personal representative; provided, however, that notice shall not be required to be1275
given to any beneficiary who:1276
(1) Has waived such right to notification in writing;1277
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(2) Acknowledged service of and assented to the petition to probate the will, if such1278
personal representative was a petitioner; or1279
(3) Is such personal representative.1280
Such notification shall be given within six months from the date of qualification of the first1281
personal representative of a testate estate to serve.1282
(b) Within 30 days following the issuance of letters testamentary or letters of1283
administration with the will annexed to the personal representative of a testate estate, such1284
personal representative shall send to all beneficiaries by certified or registered mail or1285
statutory overnight delivery, with return receipt requested, to his or her last known address1286
a notice informing such beneficiaries of the issuance of such letters to the personal1287
representative and providing the name, mailing address, and telephone number of such1288
personal representative. Provided, however, that notice shall not be required to any1289
beneficiary who has waived such right to notification in writing. Within 60 days following1290
the issuance of such letters, such personal representative shall file with the probate court1291
true and correct copies of such waivers and notices, the return receipts for each, and, with1292
respect to any such beneficiary whose identity and whereabouts are unknown, an affidavit1293
of diligent search attesting under oath to the efforts of such personal representative to1294
identify and locate such beneficiary.1295
(c) A personal representative who, without sufficient cause, either fails to provide accurate1296
information regarding such personal representative's name, mailing address, and telephone1297
number within five business days of a request for such information by a beneficiary or by1298
the probate court or otherwise fails to comply with the requirements of subsection (b) (a)1299
of this Code section, may be cited to appear and show cause as to why the personal1300
representative's letters should not be revoked in the same manner as pursuant to Code1301
Section 53-6-53.1302
(c) Where there is a trust that is a beneficiary of a testate estate and there is not a trustee1303
who is not the personal representative, any notice or citation required by this Code section1304
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shall be given to and may be waived by each beneficiary of such trust to whom income or1305
principal is required or authorized in the trustee's discretion to be distributed currently. For1306
purposes of this Code section, a trust beneficiary may be represented as provided in Code1307
Section 53-12-8.1308
(d) For purposes of this Code section, a trust beneficiary may be represented as provided1309
in paragraph (3) of subsection (b) of Code Section 53-7-50. Nothing in this Code section1310
shall alter or affect any time period established by Code Section 53-7-42, subsection (d)1311
of Code Section 53-8-15, or other applicable law."1312
SECTION 53.1313
Said title is further amended by revising Code Section 53-6-1, relating to eligibility, as1314
follows:1315
"53-6-1.1316
Any individual who is sui juris, regardless of citizenship or residency, is eligible to serve1317
as a personal representative or temporary administrator of the estate of a decedent who dies1318
domiciled in this state, subject to the requirements for qualification set forth in this chapter. 1319
Any other person is eligible to serve as a personal representative or temporary1320
administrator of the estate of a decedent who dies domiciled in this state, subject to the1321
requirements set forth in this chapter, provided the that such person is otherwise qualified1322
to act as a fiduciary in this state pursuant to Code Section 7-1-242, Article 15 of Chapter1323
12 of this title, or other applicable law."1324
SECTION 54.1325
Said title is further amended by revising subsections (b) and (c) of Code Section 53-6-50,1326
relating to persons required to give and determination of amounts, as follows:1327
"(b) A national banking association having the power to act as a fiduciary in Georgia1328
pursuant to Code Section 7-1-242, Article 15 of Chapter 12 of this title, or other applicable1329
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law or a bank or trust company organized under the laws of this state that seeks to qualify1330
as a personal representative of an intestate estate or temporary administrator shall not be1331
required to give bond for the faithful performance of its duties unless its combined capital,1332
surplus, and undivided profits are less than $400,000.00 as reflected in its last statement1333
filed with the comptroller of the currency of the United States or the commissioner of1334
banking and finance or unless the instrument under which it seeks to qualify expressly1335
provides that it shall give bond.1336
(c) A person petitioning to qualify as a personal representative of an intestate estate may1337
be relieved from the requirement for giving bond by the unanimous consent of the heirs of1338
the estate in the same manner as provided in subsection (b) of Code Section 53-7-1 for the1339
granting of powers to a personal representative. With respect to any heir who is not sui1340
juris, consent may be given by the guardian of the individual, pursuant to Code Section1341
53-11-2. The personal representative of the estate of a deceased heir is authorized to1342
consent for that heir. If the estate of a deceased heir has no personal representative, such1343
deceased heir's estate may be represented in the proceeding by a guardian, pursuant to Code1344
Section 53-11-2, and such guardian is authorized to consent for that heir. In no case may1345
consent on behalf of an heir who is not sui juris or a deceased heir whose estate has no1346
personal representative be effective if the person consenting is the person petitioning to1347
serve as personal representative."1348
SECTION 55.1349
Said title is further amended by revising subsection (a) of Code Section 53-6-60, relating to1350
amount, as follows:1351
"(a)(1) As used in this subsection, the terms 'beneficiary' and 'heir' shall apply as set forth1352
in Code Section 53-7-68.1353
(2) A personal representative Personal representatives shall be compensated as specified1354
in either the will or any a written agreement entered into by the decedent and the personal1355
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representative prior to the decedent's death or a written agreement signed by all the1356
beneficiaries of a testate estate affected by the personal representative's compensation or1357
by all the heirs of an intestate estate. In the absence of such a written agreement, a1358
personal representative shall be compensated as specified in the will. A written1359
agreement between a testator and a personal representative shall be valid and binding1360
upon the estate of the testator as fully and completely as if set forth in and made a part1361
of the will.1362
(3) If a beneficiary of a testate estate or an heir of an intestate estate is not sui juris, the1363
duly acting guardian or conservator of such heir or beneficiary shall be authorized to sign1364
an agreement specifying the compensation of the personal representative."1365
SECTION 56.1366
Said title is further amended by revising paragraph (2) of subsection (b) of Code Section1367
53-7-1, relating to general powers and duties of personal representative and additional1368
powers, as follows:1369
"(2) With respect to any beneficiary of a testate estate or heir of an intestate estate who1370
is not sui juris, the consent required by paragraph (1) of this subsection may be given by1371
such beneficiary's or heir's duly acting conservator or guardian. The personal1372
representative of the estate of a deceased beneficiary or heir shall be authorized to1373
consent on behalf of such deceased beneficiary or heir. If the estate of a deceased1374
beneficiary or heir has no personal representative, such deceased beneficiary's or heir's1375
estate may be represented in the proceeding by a guardian, pursuant to Code Section1376
53-11-2, and such guardian shall be authorized to consent on behalf of such deceased1377
beneficiary or heir."1378
SECTION 57.1379
Said title is further amended by revising subsection (a) of Code Section 53-7-5, relating to1380
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powers, duties, and liabilities if more than one personal representative and safe deposit boxes
1381
or receptacles, as follows:1382
"(a) If more than one personal representative is qualified and unless the will provides1383
otherwise:1384
(1) The personal representatives must
shall act by their unanimous action; provided,1385
however, that, while a personal representative is unable to act because of inaccessibility,1386
illness, or other incapacity, or when a vacancy occurs for any other reason, the remaining1387
personal representatives may act as if they were the only personal representatives if1388
necessary to administer the estate; and1389
(2) The personal representatives may delegate in writing to one or more of them the1390
authority to act for all of them; provided, however, that such delegation must satisfy the1391
requirements of Code Sections 10-6B-5 and 10-6B-40, and that all the personal1392
representatives remain liable for the actions of the personal representative who is1393
authorized to act."1394
SECTION 58.1395
Said title is further amended by revising subsection (b) of Code Section 53-7-32, relating to1396
waiver of right to receive and relieving personal representative of duty to make, as follows:1397
"(b) By unanimous written consent, the beneficiaries of a testate estate or the heirs of an1398
intestate estate may authorize the probate court to relieve the personal representative of the1399
duty to make inventory in the same manner as described provided in subsection (b) of Code1400
Section 53-7-1 for the granting of powers to a personal representative. Any such1401
unanimous written consent, regardless of the date of execution, which that relieves the1402
personal representative from making inventory shall also relieve the personal representative1403
from sending a copy of the inventory to the heirs or beneficiaries."1404
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SECTION 59.
1405
Said title is further amended by revising subsections (b) and (d) of Code Section 53-7-41,1406
relating to notice for creditors to render accounts, notification of creditors' claims,1407
requirement of reasonable additional proof or accounting, and failure of creditors to give1408
notice of claims, as follows:1409
"(b) The
Every personal representative shall, within 60 days from the date of qualification,1410
publish a notice directed generally to all of the creditors of the estate to notify the personal1411
representative of their claims and render an account of their demands for payment thereon. 1412
The personal representative's notice shall be published once a week for four weeks in the1413
official newspaper of the county in which the personal representative qualified. No1414
particular form shall be required for creditors to notify the personal representative of their1415
claims, and such notification of a creditor's claim shall be sufficient for purposes of this1416
Code section if given in writing, providing an account number or other identifying1417
information or itemization adequate to establish the indebtedness as an obligation of the1418
estate, and stating the principal balance and any applicable interest or other additional1419
charges lawfully owed. An invoice or account statement satisfying the requirements of the1420
preceding sentence of this subsection and generated by a creditor in the ordinary course of1421
such creditor's business shall constitute sufficient notification to the personal representative1422
of such creditor's claim if the personal representative actually receives such notification of1423
the claim or if such creditor files such notification with the probate court having1424
jurisdiction over the decedent's estate or sends such notification of the claim by electronic1425
transmission, other form of wire or wireless communication, or by first-class mail or1426
private carrier to the address of the decedent, the personal representative, or the attorney1427
representing the personal representative; provided, however, that a notification of a claim1428
sent by a creditor by electronic communication to an account for which the decedent is the1429
user shall constitute sufficient notification to the personal representative of such creditor's1430
claim only if the content of such electronic communication lawfully is disclosed to the1431
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personal representative pursuant to Chapter 13 of this title. As used in this subsection, the
1432
terms 'account'
,' 'content of an electronic communication',' 'electronic communication',' and1433
'user' shall have the meaning provided by Code Section 53-13-2."1434
"(d) Creditors who fail to notify the personal representative of their claims in the manner1435
provided by subsection (b) of this Code section within three months from the date of1436
publication of the personal representative's last notice shall lose all rights to an equal1437
participation with creditors of equal priority to whom distribution is made before sufficient1438
notification of such claims is given to the personal representative, and they may not hold1439
the personal representative liable for a misappropriation of the funds. If, however, there1440
are assets in the hands of the personal representative sufficient to pay such debts and if no1441
claims of greater priority are unpaid, the assets shall be thus appropriated notwithstanding1442
the failure of such creditors to timely notify the personal representative of their claims in1443
a timely manner."1444
SECTION 60.1445
Said title is further amended by revising subsection (a) of Code Section 53-7-50, relating to1446
petition by personal representative for discharge, citation and publication, hearing, and1447
subsequently discovered estate, as follows:1448
"(a) A personal representative who has fully performed all duties or who has been allowed1449
to resign may petition the probate court for discharge from the office and from all liability. 1450
The petition shall:1451
(1) State state that the personal representative has fully administered the estate of the1452
decedent;1453
(2) Set and shall set forth the names and addresses of all known heirs of an intestate1454
decedent or beneficiaries of a testate decedent, including, as applicable, the personal1455
representative of the estate of or any persons who succeeded to the interest of any heir or1456
beneficiary who died after the decedent died;1457
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(3) Name, and shall name which of the heirs or beneficiaries is or should be represented1458
by a guardian. The petition shall state as provided in Code Section 53-11-2, including,1459
as applicable, any heir or beneficiary who died after the decedent died whose estate has1460
no personal representative;1461
(4) State that the personal representative has paid all claims against the estate or shall1462
enumerate which claims of the estate have not been paid and the reason for such1463
nonpayment.; and1464
(5) State The petition shall also state that the personal representative has filed all1465
necessary inventory and returns or, alternatively, has been relieved of such filings by the1466
testator, the heirs or beneficiaries, or the probate court."1467
SECTION 61.1468
Said title is further amended by revising Code Section 53-7-68, relating to mailing of return1469
to heirs and beneficiaries and relieving personal representative of duty to file return, as1470
follows:1471
"53-7-68.1472
(a) As used in this Code section, the term:1473
(1) 'Beneficiary' shall not apply to a person who is designated in a will to take an interest1474
in real or personal property after such person's interest in the estate has been satisfied.1475
(2) 'Heir' shall not apply to an individual who survives the decedent and is determined1476
under the rules of inheritance to take the property of the decedent that is not disposed of1477
by will after such individual's interest in the estate has been satisfied.1478
(b) Upon filing the annual return with the probate court, the personal representative shall1479
mail send by first-class mail:1480
(1) To each heir of an intestate estate or each beneficiary of the residue of a testate estate,1481
a copy of the return, but not the vouchers; and, to each heir of an intestate estate or each1482
beneficiary of a testate estate. It1483
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(2) To each beneficiary of a specific, demonstrative, or general testamentary gift of a1484
testate estate, a copy of the portion of the return relevant to the beneficiary's interest in1485
the estate or other written statement containing such information, but not the vouchers;1486
provided, however, that it shall not be necessary to mail a copy of the return to any heir1487
or beneficiary who is not sui juris or for the court to appoint a guardian for such person.1488
(c) The personal representative shall file with the probate court a verified statement with1489
the probate court stating that all required mailings of the return to heirs or beneficiaries1490
have been made that the requirements of subsection (b) of this Code section have been1491
satisfied.1492
(d) In the case of a testamentary gift to a trustee of a trust, including, without limitation,1493
a trust created by the will, the term 'beneficiary' shall apply to the trustee and shall not1494
apply to the beneficiaries of the trust, provided that:1495
(1) If each trustee of the trust is also a personal representative of the estate, the term1496
'beneficiary' shall apply to those persons who, if the trust were funded, would be entitled1497
to annual reports from the trustee under subsection (b) of Code Section 53-12-243, taking1498
into account the provisions of the trust instrument and subsections (c) and (d) of Code1499
Section 53-12-243; and1500
(2) A beneficiary may be represented as provided in Code Section 53-12-8.1501
(e) In the case of a deceased heir or beneficiary, the term 'heir' or 'beneficiary' shall apply1502
to the personal representative of such heir's or beneficiary's estate.1503
(f) The determination of the persons to whom paragraphs (1) and (2) of subsection (b) of1504
this Code section apply, including, without limitation, the application of subsection (a), (d),1505
(e), or (h), shall be made as of the date the annual return was filed with the probate court.1506
(g) The determination of the persons who are required to constitute unanimous consent1507
under subsection (j) of this Code section, including, without limitation, the application of1508
subsection (a), (d), (e), or (h), shall be made as of the date of the petition is filed.1509
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(h) If an heir or beneficiary is not sui juris, such heir's or beneficiary's duly acting1510
conservator or guardian shall:1511
(1) After a written request delivered to the personal representative, be entitled to receive1512
any report or written statement that would be required to be sent to such heir or1513
beneficiary under subsection (b) of this Code section if such heir or beneficiary were sui1514
juris; and1515
(2) Be authorized to give the consent required under subsection (j) of this Code section.1516
(b)(i) Any heir or beneficiary may waive individually the right to receive a copy of the1517
annual return or of the portion of the annual return to which such heir or beneficiary would1518
be entitled under subsection (b) of this Code section by a written statement that is delivered1519
to the personal representative. Such waiver may be revoked in writing at any time.1520
(c)(j) As part of a petition, including, but not limited to, the petition for letters1521
testamentary, letters of administration with the will annexed, or letters of administration1522
By unanimous written consent, the heirs of an intestate estate or the beneficiaries of a1523
testate estate may, by unanimous written consent, authorize the probate court to relieve the1524
personal representative from filing annual returns with them or with the court, the1525
requirements of subsection (b) of this Code section, or both, in the same manner as1526
provided in subsection (b) of Code Section 53-7-1 for the granting of powers to a personal1527
representative. Any such unanimous written consent, regardless of the date of execution,1528
that relieves the personal representative from filing annual returns with the court shall also1529
relieve the personal representative from sending a copy of the return to the heirs or1530
beneficiaries the requirements of subsection (b) of this Code section."1531
SECTION 62.1532
Said title is further amended by revising Code Section 53-7-69.1, relating to annual statement 1533
of receipts and disbursements, as follows:1534
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"53-7-69.1.
1535
(a) Except as provided in subsection (b) of this Code section, a
A personal representative1536
shall furnish to the heirs of an intestate estate or the beneficiaries of the residuum of a1537
testate estate, at least annually, a statement of receipts and disbursements send, at least1538
annually:1539
(1) To each heir of an intestate estate or each beneficiary of the residue of a testate estate,1540
a statement of receipts and disbursements; and1541
(2) To each beneficiary of a specific, demonstrative, or general testamentary gift of the1542
testate estate, a statement of any receipts and disbursements relevant to the beneficiary's1543
interest in the estate.1544
(b) Any heir or beneficiary may waive individually the right to receive a statement of1545
receipts and disbursements in the same manner as provided in subsection (b) of Code1546
Section 53-7-68 for waiving the right to receive a copy of an annual return by a written1547
statement that is delivered to the personal representative. Such waiver may be revoked in1548
writing at any time.1549
(c) The heirs or beneficiaries may authorize the probate court to relieve the personal1550
representative from furnishing statements of receipts and disbursements in the same1551
manner as provided in subsection (c) of Code Section 53-7-68 for relieving the personal1552
representative from filing annual returns. A testator may, by will, dispense with the1553
necessity of the personal representative's furnishing a statement of receipts and1554
disbursements in the same manner as provided in Code Section 53-7-69 for dispensing with1555
the necessity of the personal representative's filing an annual return.; provided, however,1556
that such dispensation does not work any injury to creditors or persons other than1557
beneficiaries under the will. It shall not be necessary to furnish a statement of receipts and1558
disbursements to any heir or beneficiary who is not sui juris or for the probate court to1559
appoint a guardian for such person.1560
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(d) When a personal representative has been relieved from furnishing statements of1561
receipts and disbursements, the probate court, on its own motion or on the representation1562
of any party in interest that the personal representative is mismanaging the estate, shall1563
order the personal representative to appear and show cause as to why statements of receipts1564
and disbursements should not be furnished or the personal representative's letters revoked. 1565
Such order shall be served in person on the personal representative at least ten days prior1566
to the hearing. Failure to show cause shall authorize the court to require statements of1567
receipts and disbursements to be furnished or to revoke the letters or to take any other1568
action as may be necessary under the circumstances.1569
(e) For purposes of this Code section:1570
(1) The statement provided under subsection (a) of this Code section shall contain the1571
receipts and disbursements of principal and income that have occurred during the last1572
complete fiscal year of the estate or since the last accounting to that heir or beneficiary1573
and a statement of the assets and liabilities of the estate as of the end of the accounting1574
period, provided that the information in any statement required under paragraph (2) of1575
subsection (a) of this Code section shall be limited as provided in that paragraph;1576
(2) The terms 'heir' and 'beneficiary' shall apply as provided in Code Section 53-7-68;1577
(3) The determination of the persons entitled to receive statements under subsection (a)1578
of this Code section and the application of this subsection shall be made as of the final1579
day of the period covered by the statement;1580
(4) The determination of the persons who may authorize the probate court under1581
subsection (c) of this Code section and the application of this subsection shall be made1582
as of the date of the authorization; and1583
(5) If an heir or beneficiary is not sui juris, such heir's or beneficiary's duly acting1584
conservator or guardian shall:1585
(A) After a written request delivered to the personal representative, be entitled to1586
receive any statement of receipts and disbursements that would be required to be sent1587
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to such heir or beneficiary under subsection (a) of this Code section if such heir or1588
beneficiary were sui juris; and1589
(B) Be authorized to give the consent required under subsection (b) of this Code1590
section.1591
(f) Nothing in this Code section shall affect the power of the probate court to require or1592
excuse an accounting under this part, Part 1 of this article, or other applicable law."1593
SECTION 63.1594
Said title is further amended by revising Code Section 53-7-72, relating to docket of persons1595
liable to make returns and failure to make returns, as follows:1596
"53-7-72.1597
To ensure annual returns from every personal representative, it It shall be the duty of the1598
probate court to keep a docket of all those personal representatives who are liable to make1599
returns and, immediately after the ceasing of the January term or as soon thereafter as the1600
court deems practical in each year, to cite all defaulters to show cause for their neglect. A1601
willful and continued failure to make a return shall be good cause for removal."1602
SECTION 64.1603
Said title is further amended by revising paragraphs (10) and (14) of and by adding a new1604
paragraph to Code Section 53-12-2, relating to definitions regarding trusts, to read as1605
follows:1606
"(2.1)(A) 'Donor' means a person, including a testator, who contributes property to the1607
trust, provided that:1608
(i) If another person makes a transfer of property to the trust, other than as a bona1609
fide sale for an adequate and full consideration in money or money's worth, for1610
purposes of Sections 2036 through 2038 of the federal Internal Revenue Code, or if1611
the value of the property held in the trust is included in the gross estate of another1612
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person under Chapter 11 of the federal Internal Revenue Code, then such other person1613
shall be the donor; and1614
(ii) Notwithstanding division (i) of this subparagraph, if a person has the power to1615
revoke the trust, such term means the person who has the power to revoke the trust.1616
(B) If a trust has more than one donor, each such person is the donor of the portion of1617
the trust attributable to the property of which such person is the donor."1618
"(10)(A) 'Qualified beneficiary' means a living individual or other existing person who,1619
on the date of determination of beneficiary status:1620
(A)(i) Is a distributee or permissible distributee of trust income or principal;1621
(B)(ii) Would be a distributee or permissible distributee of trust income or principal1622
if the interests of the distributees described in subparagraph (A) of this paragraph1623
division (i) of this subparagraph terminated on that date without causing the trust to1624
terminate; or1625
(C)(iii) Would be a distributee or permissible distributee of trust income or principal1626
if the trust terminated on that date.1627
(B) The Attorney General has the rights of a qualified beneficiary with respect to a1628
charitable trust as defined in Code Section 53-12-170, and a With respect to a charitable1629
trust as defined in Code Section 53-12-170, the Attorney General has the rights of a1630
qualified beneficiary. With respect to any trust, including, but not limited to, a1631
charitable trust, a charitable organization that is expressly designated as a distributee1632
or permissible distributee of trust income or principal has the rights of a qualified1633
beneficiary if, on the date of determination, such charitable organization is described1634
in division (i), (ii), or (iii) of subparagraph (A) of this paragraph. With respect to a trust1635
that is not a charitable trust and designates a class of unascertainable charitable1636
beneficiaries as distributees or permissible distributees of trust income or principal, the1637
Attorney General has the rights of a qualified beneficiary if, on the date of1638
determination, such unascertainable charitable beneficiaries are described in division1639
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(i), (ii), or (iii) of subparagraph (A) of this paragraph. A person appointed to enforce1640
a trust created for the care of an animal under Code Section 53-12-28 also has the rights1641
of a qualified beneficiary."1642
"(14) 'Trust instrument' means the document, including any testamentary instrument, an1643
instrument that contains the trust provisions. The trust instrument includes any trust1644
provisions established, determined, or amended by a trustee or other person in accordance1645
with the provisions of the trust, a court order, a nonjudicial settlement agreement under1646
Code Section 53-12-9, or other applicable law."1647
SECTION 65.1648
Said title is further amended by revising Code Section 53-12-3, relating to survival of1649
common law and equity, as follows:1650
"53-12-3.1651
Except to the extent that the principles of common law and equity governing trusts are1652
modified by this chapter or another provision of law, those principles remain the law of this1653
state. Without limitation:1654
(1) No provision of this chapter shall be construed to imply that any other Code section1655
or the common law did not, prior to the enactment of such provision, impose, permit, or1656
otherwise address a duty, power, relationship, or any other matter governed by such1657
provision; and1658
(2) The failure of the General Assembly to codify an established principle of common1659
law or equity governing trusts shall not be construed as evidence that the General1660
Assembly intended to reject that principle unless this chapter or another provision of law1661
is inconsistent with that principle or there is other evidence the General Assembly1662
intended that such principle should no longer apply."1663
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SECTION 66.
1664
Said title is further amended by revising subsections (d), (h), and (k) of and by adding a new1665
subsection to Code Section 53-12-8, relating to notice to person permitted to bind another1666
person, consent on behalf of another person, and representation of others, to read as follows:1667
"(d) Notwithstanding any other provision of this Code section, a donor
A settlor may not1668
represent and bind a beneficiary under this Code section with respect to the termination or1669
modification of a trust under Article 4 of this chapter."1670
"(h) A person who on the date of determination would be eligible to receive distributions1671
of income or principal from the trust upon the termination of the interests of all persons1672
then currently eligible to receive distributions of income or principal is a qualified1673
beneficiary under division (10)(A)(iii) of Code Section 53-12-2 may represent and bind1674
contingent successor beneficiaries with respect to matters in which there is no conflict of1675
interest between the representative and the persons represented with respect to a particular1676
question or dispute."1677
"(k) Any person whose interests would be affected or who reasonably claims to represent1678
or bind a person whose interests would be affected may request that the court determine1679
whether an interest is represented under this Code section or whether the representation is1680
adequate. If the court determines that an interest is not represented under this Code section,1681
or that the otherwise available representation might be inadequate, the court may appoint1682
a representative to receive notice, give consent, and otherwise represent, bind, and act on1683
behalf of a minor, incapacitated, or unborn individual, or a person whose identity or1684
location is unknown and not reasonably ascertainable. A representative may be appointed1685
to represent several persons or interests. A representative may act on behalf of the1686
individual represented with respect to any matter arising under this chapter, regardless of1687
whether a judicial proceeding concerning the trust is pending. In making decisions, a1688
representative may consider the general benefit accruing to the living members of the1689
individual's family."1690
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"(m) Representation under this Code section is effective for purposes of this chapter, the1691
trust provisions, or any matter involving a trust."1692
SECTION 67.1693
Said title is further amended by revising Code Section 53-12-9, relating to binding1694
nonjudicial settlement agreement, as follows:1695
"53-12-9.1696
(a) Except as provided in subsection (b) of this Code section, the trustee, any trust director,1697
and all other persons whose interests would be affected may enter into a binding1698
nonjudicial settlement agreement with respect to any matter involving the trust.1699
(b) A nonjudicial settlement agreement:1700
(1) Shall be valid only to the extent it does not violate a material purpose of the trust and1701
includes terms and conditions that could be properly approved by the court under this1702
Code section chapter or other applicable law; and1703
(2) During the settlor's lifetime, shall Shall not be valid with respect to any modification1704
or termination of an irrevocable trust when the settlor's consent would be required in a1705
proceeding to approve such modification or termination could be properly approved by1706
the court only in a proceeding under subsection (b) of Code Section 53-12-61.1707
(c) The trustee, trust director, and any person whose interests would be affected by a1708
nonjudicial settlement agreement may request that the court approve such agreement,1709
determine whether the representation as provided in Code Section 53-12-8 was adequate,1710
determine whether such agreement violates a material purpose of the trust, determine1711
whether such agreement contains terms and conditions the court could have properly1712
approved, or make any other similar determination.1713
(d) A nonjudicial settlement agreement entered into in accordance with this Code section1714
shall be final and binding on all parties to such agreement, including individuals not sui1715
juris, unborn beneficiaries, and persons unknown parties who are represented by a person1716
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who may represent and bind such parties under Code Section 53-12-8, as if ordered by a
1717
court with competent jurisdiction over the trust, the trust property, and the parties.1718
(e) Entering into or petitioning a court regarding a nonjudicial settlement agreement under1719
this Code section shall not constitute a violation of a condition in terrorem under Code1720
Section 53-12-22
53-12-29."1721
SECTION 68.1722
Said title is further amended by revising Code Section 53-12-22, relating to trust purposes1723
and conditions in terrorem, as follows:1724
"53-12-22.1725
(a) A trust may be created for any lawful purpose.1726
(b) A condition in terrorem shall be void unless there is a direction in the trust instrument1727
as to the disposition of the property if the condition in terrorem is violated, in which event1728
the direction in the trust instrument shall be carried out, except as otherwise provided in1729
subsection (c) of this Code section.1730
(c) A condition in terrorem shall not be enforceable against an individual for:1731
(1) Bringing an action for interpretation or enforcement of a trust instrument;1732
(2) Bringing an action for an accounting, for removal, or for other relief against a trustee;1733
or1734
(3) Entering into a settlement agreement."1735
SECTION 69.1736
Said title is further amended by adding a new Code section to Article 2 of Chapter 12,1737
relating to creation and validity of express trusts, to read as follows:1738
"53-12-29.1739
A condition in terrorem shall be void unless there is a direction in the trust instrument as1740
to the disposition of the property if the condition in terrorem is violated, in which event the1741
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direction in the trust instrument shall be carried out, except that a condition in terrorem1742
shall not be enforceable against an individual for:1743
(1) Bringing an action for interpretation or enforcement of a trust instrument;1744
(2) Bringing an action for an accounting, for removal, or for other relief against a trustee;1745
or1746
(3) Entering into a settlement agreement."1747
SECTION 70.1748
Said title is further amended by adding a new Code section to Article 3 of Chapter 12,1749
relating to revocable trusts, to read as follows:1750
"53-12-46.1751
(a)(1) Notwithstanding any other provision of this chapter, if the settlor reserved a power1752
of revocation over a trust, the settlor is alive, and the power of revocation has not been1753
released:1754
(A) The duties of the trustee are owed exclusively to the settlor; and1755
(B) With respect to any trust property held for personal use or enjoyment by a1756
beneficiary or any other trust property designated as being subject to this paragraph1757
pursuant to paragraph (3) of subsection (c) of this Code section:1758
(i) The settlor shall have the power to direct the trustee in the management of such1759
property and the provisions of Article 18 of this chapter shall apply so that the trustee1760
is a directed trustee who, without limitation, is relieved from the duties from which1761
trustees are relieved under subsection (f) of Code Section 53-12-504; and1762
(ii) The trustee shall not have any duty to account at least annually to the1763
beneficiaries under paragraph (1) of subsection (b) of Code Section 53-12-243, to1764
keep the beneficiaries reasonably informed of the trust and its administration under1765
the common law, or to provide information to the trust director under paragraph (1)1766
of subsection (c) of Code Section 53-12-504.1767
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(2) Unless the trust instrument provides otherwise, if the trustee is required or authorized1768
in the trustee's discretion to make distributions of trust property to other beneficiaries1769
while the settlor is alive, the settlor has not released the power to revoke the trust, and the1770
settlor lacks capacity to revoke the trust, then the trustee owes duties to the beneficiaries1771
to whom income or principal is required or authorized in the trustee's discretion to be1772
distributed currently and the office of trust director created pursuant to this subsection is1773
governed by Code Section 53-12-506.1774
(b) If subsection (a) of this Code section applies to a trust:1775
(1) In addition to any persons who may seek to enforce the trust under any other Code1776
section or the common law, the following persons may seek to enforce the trust:1777
(A) The settlor's guardian or conservator;1778
(B) The settlor's agent under a power of attorney granting general authority with1779
respect to estates, trusts, and other beneficial interests under Code Section 10-6B-50,1780
general authority with respect to claims and litigation under Code Section 10-6B-51,1781
or substantially similar authority that would make it appropriate for the agent to enforce1782
the trustee's duties to the settlor;1783
(C) The settlor's parent, spouse, or descendant; or1784
(D) Any qualified beneficiary of the trust;1785
(2) Upon a motion by the settlor, the court shall dismiss any action seeking to enforce1786
the trust unless the court finds that the settlor lacks capacity to revoke the trust; and1787
(3) Upon a motion by a person described in subparagraph (A) or (B) of paragraph (1) of1788
this subsection, the court shall dismiss any action seeking to enforce the trust filed by a1789
person described in subparagraph (C) or (D) of paragraph (1) of this subsection, unless1790
the court finds that the settlor's interests in the trust are not adequately represented by the1791
person moving to dismiss the action.1792
(c) For purposes of this Code section:1793
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(1) 'Property held for personal use or enjoyment' means property held for purposes other1794
than, or in addition to, monetary value, and shall include, but not be limited to:1795
(A) All personal effects, including, but not limited to, clothing, jewelry, firearms, and1796
equipment;1797
(B) All household goods and equipment, including, but not limited to, furniture and1798
furnishings, works of art, and collectibles;1799
(C) All automobiles, aircraft, watercraft, and other vehicles; and1800
(D) All dwellings and other real property that are used or enjoyed by a beneficiary,1801
regardless of whether rented, leased, or otherwise held out for use or enjoyment by1802
other persons.1803
(2) If trust property includes an indirect interest in property, including, but not limited1804
to, an interest in an entity, the entire indirect interest is held for personal use or enjoyment1805
if any portion of the property in which the trustee holds an indirect interest is held for1806
personal use or enjoyment.1807
(3)(A) The trust instrument, or a majority of the persons to whom the trustee owes1808
duties under subsection (a) of this Code section in a writing delivered to the trustee,1809
may designate trust property as:1810
(i) Being held or not being held for personal use or enjoyment; or1811
(ii) Property subject to or not subject to subparagraph (a)(1)(B) of this Code section.1812
(B) A designation of trust property made pursuant to subparagraph (A) of this1813
paragraph shall control; provided, however, that a failure to make a designation of trust1814
property pursuant to subparagraph (A) of this paragraph shall not constitute evidence1815
that such property is not held for personal use or enjoyment.1816
(4) 'Management' of property means the exercise of all powers over such property that1817
an unmarried competent owner has over individually owned property."1818
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SECTION 71.
1819
Said title is further amended by revising subsections (b), (c), and (k) of and by adding a new1820
subsection to Code Section 53-12-61, relating to power to direct modification or termination,1821
petition to modify or terminate irrevocable trust, proceeding to approve proposed1822
modification or termination, distribution of trust property under order for termination, and1823
waiver of notice, to read as follows:1824
"(b) During the settlor's lifetime, the court shall approve a petition to modify or terminate1825
an irrevocable trust, even if the modification or termination is inconsistent with a material1826
purpose of the trust, if the settlor and all qualified beneficiaries consent to such1827
modification or termination and the trustee has received
been given notice of the proposed1828
modification or termination. A settlor's power to consent to such trust's modification or1829
termination may be exercised by:1830
(1) An agent under a power of attorney only to the extent expressly authorized by the1831
power of attorney and the provisions of the trust;1832
(2) The settlor's conservator with the approval of the court supervising the1833
conservatorship if an agent is not so authorized; or1834
(3) The settlor's guardian with the approval of the court supervising the guardianship if1835
an agent is not so authorized and a conservator has not been appointed.1836
(c) Following the settlor's death the court shall approve a petition to:1837
(1) Modify an irrevocable trust if all qualified beneficiaries consent, the trustee has1838
received been given notice of the proposed modification, and the court concludes that1839
modification is not inconsistent with any material purpose of such trust; and1840
(2) Terminate an irrevocable trust if all qualified beneficiaries consent, the trustee has1841
received been given notice of the proposed termination, and the court concludes that1842
continuance of such trust is not necessary to achieve any material purpose of such trust."1843
"(k) Subsections (b) and (c) of this Code section shall not apply to charitable trusts. If a1844
transfer to any other trust qualified for a charitable deduction under Sections 170(a),1845
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2055(a), or 2522(a) of the federal Internal Revenue Code, the trust may not be modified1846
or terminated pursuant to subsection (b) or (c) of this Code section in a manner that1847
prevents the transfer to the trust from qualifying for or reduces the amount of such1848
charitable deduction."1849
"(o) For purposes of subsection (b) of this Code section, notwithstanding the provisions1850
of Code Section 53-12-8, all qualified beneficiaries shall represent and bind all other1851
beneficiaries who are not qualified beneficiaries, regardless of whether there is a conflict1852
of interest between a qualified beneficiary and any such other beneficiary or whether any1853
such other beneficiary objects to the representation."1854
SECTION 72.1855
Said title is further amended by revising Code Section 53-12-62, relating to power of trustee1856
to invade principal of original trust, as follows:1857
"53-12-62.1858
(a) As used in this Code section, the term:1859
(1) 'Original trust' refers to the trust from which principal is being distributed.1860
(2) 'Second trust' refers to the trust to which assets are being distributed from the original1861
trust, whether a separate trust or an amended version of the original trust.1862
(b)(1) As used in this subsection, the term 'current beneficiary' means a person who, on1863
the date of distribution to the second trust, is a distributee or permissible distributee of1864
trust income or principal.1865
(2) Unless the original trust instrument expressly provides otherwise, a trustee, other than1866
a person who contributed property donor to the trust, with the discretionary authority to1867
invade the distribute income or principal of the original trust to make distributions to or1868
for the benefit of one or more of the beneficiaries may also, independently or with court1869
approval, exercise such authority by distributing all or part of the income or principal of1870
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the original trust subject to such discretion to a trustee of a second trust; provided,1871
however, that the second trust shall not include as a:1872
(A) Current beneficiary any person that is not a current beneficiary of income or1873
principal of the original trust; or1874
(B) Beneficiary any person that is not a beneficiary of the original trust.1875
(c) Except as provided in this Code section, a trustee may exercise the power to invade the1876
distribute income or principal of the original trust under subsection (b) of this Code section1877
without the consent of the settlor or the beneficiaries of the original trust if such trustee1878
provides written notice of such trustee's decision to exercise the power to such settlor, if1879
living, any trust director, and those persons then entitled to annual reports from the trustee1880
of the original trust under subsection (b) of Code Section 53-12-243, taking into account1881
the provisions of the original trust and subsections (c) and (d) of Code Section 53-12-243. 1882
Such notice shall:1883
(1) Describe the manner in which such trustee intends to exercise such power;1884
(2) Specify the date such trustee proposes to distribute to the second trust; and1885
(3) Be delivered at least 30 days before the proposed distribution to the second trust.1886
(d) The exercise of the power to invade the distribute income or principal of the original1887
trust under subsection (b) of this Code section shall be by an instrument in a writing, signed1888
and acknowledged by the trustee, and filed with the records of the original trust.1889
(e) The exercise of the power to invade the distribute income or principal of the original1890
trust under subsection (b) of this Code section shall not extend the permissible period of1891
the rule against perpetuities that applies to such original trust.1892
(f) The exercise of the power to invade the distribute income or principal of the original1893
trust under subsection (b) of this Code section by a trustee who is also a beneficiary shall1894
be subject to the limitations of Code Section 53-12-270.1895
(g) This Code section shall not be construed to abridge the right of any trustee who has a1896
power of invasion to distribute property income or principal in further trust that arises1897
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under any other law or under common law, and nothing in this Code section shall be
1898
construed to imply that the common law does not permit the exercise of a power to invade
1899
the distribute income or principal of a trust in the manner authorized under subsection (b)1900
of this Code section.1901
(h) A second trust may confer a power of appointment upon a beneficiary of the original1902
trust to whom or for the benefit of whom the trustee has the power to distribute the income1903
or principal of such original trust. For purposes of this subsection, the permissible1904
appointees of the power of appointment conferred upon a beneficiary may include persons1905
who are not beneficiaries of such original trust or second trust.1906
(i) If any contribution to the original trust qualified for the annual exclusion under Section1907
2503(b) of the federal Internal Revenue Code, as it existed on February 1, 2018, the marital1908
deduction under Section 2056(a) or 2523(a) of the federal Internal Revenue Code, as it1909
existed on February 1, 2018, or the charitable deduction under Section 170(a), 642(c),1910
2055(a), or 2522(a) of the federal Internal Revenue Code, as it existed on February 1, 2018,1911
is a direct skip qualifying for treatment under Section 2642(c) of the federal Internal1912
Revenue Code, as it existed on February 1, 2018, or qualified for any other specific tax1913
benefit that would be lost by the existence of the authorized trustee's authority under1914
subsection (b) of this Code section for income, gift, estate, or generation-skipping transfer1915
tax purposes under the federal Internal Revenue Code, then the authorized trustee shall not1916
have the power to distribute the income or principal of a trust pursuant to subsection (b) of1917
this Code section in a manner that would prevent the contribution to the original trust from1918
qualifying for such exclusion, deduction, or other tax benefit or would reduce such1919
exclusion, deduction, or other tax benefit that was originally claimed with respect to such1920
contribution.1921
(j) The exercise of the power to invade the distribute income or principal of the original1922
trust under subsection (b) of this Code section shall be subject to the following limitations1923
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with respect to any portion of the original trust or second trust that does or will qualify as1924
a grantor trust with respect to a donor:1925
(1) The second trust need not qualify as a grantor trust for federal income tax purposes,1926
even if the original trust does qualify as a grantor trust, except that if such original trust1927
qualifies as a grantor trust because of the application of Section 672(f)(2)(A) of the1928
federal Internal Revenue Code, as it existed on February 1, 2018, such second trust may1929
not include or omit a term that, if included in or omitted from the original trust1930
instrument, would have prevented such original trust from qualifying under such section;1931
(2) Notwithstanding any other provision of this Code section, when the original trust1932
does not qualify as a grantor trust and the donor is alive, the terms of the second trust1933
shall not provide for a power of disposition that is not exempt from the application of1934
subsection (a) of Section 674 of the federal Internal Revenue Code unless an adverse1935
party, as defined in subsection (a) of Section 672 of the federal Internal Revenue Code,1936
approves or consents to the inclusion of the power in the second trust. Subject to1937
paragraph (3) of this subsection, the second trust may qualify as a grantor trust pursuant1938
to other sections of the federal Internal Revenue Code;1939
(2)(3) Unless the settlor the donor objects in a writing delivered to the trustee before the1940
date the trustee proposes to distribute from the original trust to the second trust, such1941
second trust may qualify as a grantor trust for federal income tax purposes, even if such1942
original trust does not so qualify, except that if such original trust does not so qualify and1943
such second trust will so qualify, in whole or in part, with respect to the settlor donor,1944
such second trust shall grant such settlor donor or another person a power that would1945
cause such second trust to cease to be a grantor trust for federal income tax purposes; and1946
(3)(4) When both the original trust and the second trust qualify as grantor trusts for1947
federal income tax purposes and such original trust grants the settlor donor or another1948
person the power to cause such original trust to cease to be a grantor trust, such second1949
trust shall grant an equivalent power to the settlor donor or another person unless such1950
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settlor donor objects in a writing delivered to the trustee before the date the trustee1951
proposes to distribute from such original trust to such second trust.1952
For purposes of this subsection, a trust that is a 'grantor trust' or that qualifies as a 'grantor1953
trust' shall mean a trust, or portion of a trust, of which the donor is treated as the owner of1954
the trust property for federal income tax purposes pursuant to Subchapter J of the federal1955
Internal Revenue Code.1956
(k) During any period when the original trust owns stock in a Subchapter 'S' corporation1957
as defined in Section 1361(a)(1) of the federal Internal Revenue Code, as it existed on1958
February 1, 2018, an authorized trustee shall not exercise a power authorized by subsection1959
(b) of this Code section to distribute part or all of the stock of the Subchapter 'S'1960
corporation to a second trust that is not a permitted shareholder under Section 1361(c)(2)1961
of the federal Internal Revenue Code, as it existed on February 1, 2018.1962
(l) A trustee or other person that reasonably relies on the validity of a distribution of1963
property of the original trust to the second trust under subsection (b) of this Code section1964
or any other law or common law shall not be liable for any action or failure to act as a1965
result of such reliance.1966
(m) This Code section shall not create or imply a duty for a trustee or trust director to1967
exercise a power conferred by this Code section.1968
(n) If exercise of the power to invade the distribute income or principal of the original trust1969
would be effective under subsection (b) of this Code section except that the second trust1970
in part does not comply with this Code section, such exercise of the power shall be1971
effective, a provision in such second trust that is not permitted under this Code section shall1972
be void to the extent necessary to comply with this Code section, and a provision required1973
by this Code section to be in such second trust that is not contained in such second trust1974
shall be deemed to be included in such second trust to the extent necessary to comply with1975
this Code section.1976
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(o) The settlor donor of the original trust shall be deemed to be the settlor donor of the1977
second trust with respect to the portion of the income or principal of the original trust1978
subject to the exercise of the power to invade distribute the principal of such original trust1979
under subsection (b) of this Code section. The settlor of the second trust shall be the1980
person who creates the second trust, including a testator in the case of a testamentary trust;1981
provided, however, that, if the trustee of the original trust creates the second trust, the1982
settlor of the original trust shall be deemed to be the settlor of the second trust.1983
(p) A debt, liability, or other obligation enforceable against property of the original trust1984
shall be enforceable to the same extent against the property when held by the second trust1985
after exercise of the power to invade distribute the income or principal of such original trust1986
under subsection (b) of this Code section.1987
(q) This Code section shall apply to any trust the meaning and effect of whose trust1988
provisions are determined by the law of this state that:1989
(1) Has its principal place of administration in this state, including a trust whose1990
principal place of administration has been changed to this state; or1991
(2) Provides in its trust instrument that it is governed by the law of this state or is1992
governed by the law of this state for the purpose of:1993
(A) Administration, including administration of a trust whose governing law for1994
purposes of administration has been changed to the law of this state;1995
(B) Construction of the terms of the trust; or1996
(C) Determining the meaning or effect of the terms of the trust.1997
(r) This Code section shall not apply to charitable trusts."1998
SECTION 73.1999
Said title is further amended by revising subsection (f) of Code Section 53-12-80, relating2000
to spendthrift provisions, as follows:2001
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"(f) If a beneficiary is also a contributor to the trust donor, a spendthrift provision shall not2002
be valid as to such beneficiary to the extent of the proportion portion of trust property2003
attributable to such beneficiary's contribution of which such beneficiary is the donor. This2004
subsection shall not apply to a special needs trust established pursuant to 42 U.S.C.2005
Sections Section 1396p(d)(4)(A) or 1396p(d)(4)(C)."2006
SECTION 74.2007
Said title is further amended by revising Code Section 53-12-81, relating to limitations on2008
creditors' rights to discretionary distributions, as follows:2009
"53-12-81.2010
A transferee or creditor of a beneficiary shall not compel the trustee or a trust director to2011
pay any amount that is payable only in the discretion of the trustee or trust director2012
regardless of whether the discretion is expressed in the form of a standard of distribution,2013
including, but not limited to, health, education, maintenance, and support, and whether2014
such trustee or trust director is also a beneficiary. This Code section shall not apply to the2015
extent of the proportion portion of trust property attributable to the beneficiary's2016
contribution of which such beneficiary is the donor."2017
SECTION 75.2018
Said title is further amended by revising Code Section 53-12-82, relating to rules for trusts2019
and consideration of assets of an inter vivos marital trust following death, as follows:2020
"53-12-82.2021
(a)(1) As used in this subsection, the term 'creditor' means:2022
(A) With respect to subparagraphs (A) and (B) of paragraph (2) of this subsection,2023
those creditors of a settlor donor whose claims against the property of the trust are2024
governed by this article, including those creditors identified in subsection (d) of Code2025
Section 53-12-80; and2026
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(B) With respect to subparagraph (C) of paragraph (2) of this subsection, those
2027
claimants whose claims against the property of the settlor's
a donor's estate are2028
governed by Article 4 of Chapter 7 of this title, including those claimants identified in2029
Code Section 53-7-40.2030
(2) Regardless of whether the trust instrument contains a spendthrift provision, the2031
following rules shall apply:2032
(A) During the lifetime of the settlor, the settlor shall be treated as the donor of all2033
property of a revocable trust revocable by such settlor and such property shall be2034
subject to claims of the settlor's such donor's creditors;2035
(B) With respect to an irrevocable trust:2036
(i) Creditors or assignees of the settlor donor may reach the maximum amount that2037
can be distributed to or for the settlor's donor's benefit during the settlor's donor's life2038
or that could have been distributed to or for the settlor's donor's benefit immediately2039
prior to the settlor's donor's death, provided that, if a trust has more than one settlor,2040
the amount the creditors or assignees of a particular settlor may reach shall not exceed2041
the settlor's interest in the portion of the trust attributable to that settlor's contribution;2042
and2043
(ii) The portion of a trust that can be distributed to or for the settlor's donor's benefit2044
pursuant to the power of a trustee, whether arising under the trust instrument or any2045
other law, to make a distribution to or for the benefit of a settlor donor for the purpose2046
of reimbursing the settlor donor in an amount equal to any income taxes payable on2047
any portion of the trust principal and income that is treated as the settlor's donor's2048
individual income under applicable law shall not be considered an amount that can2049
be distributed to or for the settlor's donor's benefit during the settlor's donor's life or2050
that could have been distributed to or for the settlor's donor's benefit immediately2051
prior to the settlor's donor's death; and2052
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(C) After the death of a settlor donor, and subject to the settlor's donor's right to direct2053
the source from which liabilities shall be paid:2054
(i) The settlor shall be treated as the donor of all property of a trust that was2055
revocable by the settlor at the settlor's death or had become irrevocable as a result of2056
the settlor's incapacity, and such property shall be subject to claims of the creditors2057
of the settlor's donor's estate to the extent the settlor's donor's probate estate is2058
inadequate; and2059
(ii) Payments that would not be subject to the claims of the creditors of the settlor's2060
donor's estate if made by way of beneficiary designation to persons other than the2061
settlor's donor's estate shall not be made subject to such claims by virtue of this Code2062
section unless otherwise provided in the trust instrument.2063
(b)(1) As used in this subsection, the term:2064
(A) 'Donor's spouse' means the spouse of the donor at the time of the creation of an2065
inter vivos marital trust, regardless of whether such spouse is married to the donor at2066
the time of such spouse's death.2067
(A)(B) 'Inter vivos marital trust' means:2068
(i) A trust described in Section 2523(e) of the Internal Revenue Code of 1986, as it2069
existed on February 1, 2018;2070
(ii) A trust for which the election described in Section 2523(f) of the Internal2071
Revenue Code of 1986, as it existed on February 1, 2018, has been made; or2072
(iii) Another trust to the extent such trust's assets are property is attributable to a trust2073
described in division (i) or (ii) of this subparagraph.2074
(B) 'Settlor's spouse' means the spouse of the settlor at the time of the creation of an2075
inter vivos marital trust, regardless of whether such spouse is married to the settlor at2076
the time of such spouse's death.2077
(2) Subject to Article 4 of Chapter 2 of Title 18, after the death of the settlor's donor's2078
spouse, the assets property of an inter vivos marital trust shall be deemed to have been2079
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contributed by the settlor's donor's spouse and not by the settlor donor so that the spouse2080
becomes the donor of all such property; provided, however, that this Code section shall2081
not apply to any property contributed to such trust after the death of the donor's spouse."2082
SECTION 76.2083
Said title is further amended by revising Code Section 53-12-83, relating to creditors' claims2084
against property that is subject to withdrawal right, as follows:2085
"53-12-83.2086
For purposes of this article, the The holder of a power of withdrawal, during the period that2087
the power may be exercised, shall be treated in the same manner as the settlor of a2088
revocable trust to the extent of the property subject to the power. The, and the lapse,2089
release, or waiver of a power of withdrawal shall not cause the holder to be treated as a2090
settlor donor of the trust."2091
SECTION 77.2092
Said title is further amended by revising Code Section 53-12-172, relating to cy pres, as2093
follows:2094
"53-12-172.2095
If a charitable trust or gift cannot be executed in the manner provided by the settlor or2096
donor purpose of a charitable trust becomes unlawful, impracticable, impossible to achieve,2097
or wasteful, the superior court shall, upon a petition by a donor or other interested person2098
pursuant to this Code section, modify or terminate the trust exercise equitable powers in2099
such a way as will as nearly as possible effectuate the intention of the settlor or donor."2100
SECTION 78.2101
Said title is further amended by revising Code Section 53-12-200, relating to capacity of2102
trustee, as follows:2103
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"53-12-200.
2104
A trustee shall have legal capacity under Georgia law to acquire, hold, and transfer title to2105
property. An individual shall be eligible to serve as a trustee regardless of citizenship or2106
residency. If the trustee is a corporation, partnership, or other entity, it shall be required2107
to have the power to act as a trustee in Georgia pursuant to Code Section 7-1-242, Article
2108
15 of this chapter, or other applicable law."2109
SECTION 79.2110
Said title is further amended by revising Code Section 53-12-201, relating to appointment2111
and vacancies, as follows:2112
"53-12-201.2113
(a) A settlor may appoint trustees or grant that power to others, including trust2114
beneficiaries.2115
(b) A trust shall never fail for want of a trustee.2116
(c) If the trust instrument names a person to fill a vacancy or provides a method of2117
appointing a trustee, any vacancy shall be filled or appointment made as provided in the2118
trust instrument. A vacancy in a trusteeship occurs if:2119
(1) A person designated as trustee rejects the trusteeship;2120
(2) A person designated as trustee cannot be identified, cannot be located, or does not2121
exist;2122
(3) A guardian or conservator is appointed for an individual serving as trustee;2123
(4) A trustee is disqualified or removed;2124
(5) A trustee resigns or dies; or2125
(6) For any other reason there is no person currently serving as trustee of a trust.2126
(d) The qualified beneficiaries may appoint a trustee by unanimous consent. Unless2127
otherwise provided in the trust instrument, if one or more cotrustees remain in office, a2128
vacancy need not be filled.2129
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(e) In all other cases, the court, on petition of an interested person, may appoint any2130
number of trustees consistent with the intention of the settlor and the interests of the2131
beneficiaries. A vacancy in a trusteeship that is required to be filled shall be filled, in the2132
following order of priority, by a person:2133
(1) Designated in the trust instrument as successor trustee;2134
(2) Appointed as provided in the trust instrument;2135
(3) Appointed by the unanimous agreement of the qualified beneficiaries; or2136
(4) On petition of an interested person, appointed by the court.2137
(f) Regardless of whether a vacancy in a trusteeship exists or is required to be filled, the2138
court may, on petition of an interested person, appoint an additional trustee or special2139
fiduciary whenever the court considers the appointment consistent with the intention of the2140
settlor and the interests of the beneficiaries, or otherwise necessary for the administration2141
of the trust.2142
(f)(g) A The petition provided for in subsection (e) of this Code section shall be served2143
upon all qualified beneficiaries.2144
(g)(h) A trustee appointed as a successor trustee shall have all the authority of the original2145
trustee."2146
SECTION 80.2147
Said title is further amended by revising Code Section 53-12-221, relating to removal of2148
trustee, as follows:2149
"53-12-221.2150
(a) A trustee may be removed:2151
(1) In accordance with the provisions of the trust instrument; or2152
(2) Upon petition to the court by any interested person showing good cause or by the2153
court on its own motion.2154
(b) The court may remove a trustee if:2155
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(1) The trustee has committed a serious breach of trust;2156
(2) Lack of cooperation among cotrustees substantially impairs the administration of the2157
trust;2158
(3) The court finds that removal of the trustee best serves the interests of the2159
beneficiaries because of unfitness (including, but not limited to, a lack of capacity to2160
make or communicate significant responsible decisions concerning the management of2161
trust property) or unwillingness or persistent failure to administer the trust effectively;2162
(4) There has been a substantial change of circumstances, the court finds that removal2163
of the trustee best serves the interests of the beneficiaries and is not inconsistent with a2164
material purpose of the trust, and a suitable cotrustee or successor trustee is available; or2165
(5) Removal is requested by all of the qualified beneficiaries, the court finds that removal2166
of the trustee best serves the interests of the beneficiaries and is not inconsistent with a2167
material purpose of the trust, and a suitable cotrustee or successor trustee is available.2168
(c) In the discretion of the court, in order to protect the trust property or the interests of any2169
beneficiary, on its own motion or on motion of a cotrustee or other interested person, the2170
court may compel the trustee whose removal is being sought to surrender trust property to2171
a cotrustee, a receiver, or temporary trustee pending a decision on a petition for removal2172
of a trustee or pending appellate review of such decision. To the extent the court deems2173
necessary, the powers of the trustee also may be suspended."2174
SECTION 81.2175
Said title is further amended by revising subsections (b) and (c) of Code Section 53-12-243,2176
relating to duty to provide reports and accounts, as follows:2177
"(b)(1) A trustee shall account at least annually, at the termination of the trust, and upon2178
a change of trustees to each beneficiary of an irrevocable trust to whom income or2179
principal is required or authorized in the trustee's discretion to be distributed currently2180
during the period covered by the report, including upon the termination of the trust on the2181
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last day of such period, and to any person who may revoke the trust. At the termination2182
of the trust, the trustee shall also account to each remainder beneficiary. Upon a change2183
of trustees, the trustee shall also account to the successor trustee.2184
(2) An accounting furnished to a beneficiary pursuant to paragraph (1) of this subsection2185
shall contain a statement of receipts and disbursements of principal and income that have2186
occurred during the last complete fiscal year of the trust or since the last accounting to2187
that beneficiary and a statement of the assets and liabilities of the trust as of the end of2188
the accounting period.2189
(c) A trustee shall not be required to report information or account to:2190
(1) A a beneficiary who has waived in writing the right to a report or accounting and has2191
not withdrawn that waiver; or2192
(2) The unascertainable charitable beneficiaries of a trust that is not a charitable trust."2193
SECTION 82.2194
Said title is further amended in Part 1 of Article 13 of Chapter 12, relating to duties of2195
trustee, by adding a new Code section to read as follows:2196
"53-12-248.2197
When a person holds a power of appointment, as defined in Code Section 53-12-500, over2198
property with respect to which the person is also a trustee or a trust director, the duties2199
imposed on such person as a trustee or trust director shall not apply to the exercise or2200
nonexercise of the power of appointment."2201
SECTION 83.2202
Said title is further amended by revising paragraphs (11), (23), (28), and (29) of and by2203
adding a new paragraph to subsection (b) of Code Section 53-12-261, relating to powers of2204
trustee and limitation based on fiduciary duties, to read as follows:2205
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"(11) To borrow money for such periods of time and upon such terms and conditions as
2206
to rates, maturities, renewals, and security as the fiduciary shall deem advisable for the
2207
any purpose of paying debts, taxes, or other charges against the estate or trust or any part2208
thereof and to mortgage, pledge, or otherwise encumber such portion of the property held2209
by the fiduciary as may be required to secure the loan and to renew existing loans either2210
as maker or endorser;"2211
"(23) To employ and compensate, out of income or principal or both and in such2212
proportion as the fiduciary shall deem advisable, persons deemed by the fiduciary needful2213
to advise or assist in the administration of the estate or trust, including, but not limited to,2214
agents, accountants, brokers, attorneys at law, attorneys in fact, investment brokers, rental2215
agents, realtors, appraisers, and tax specialists; and to do so without liability for any2216
neglect, omission, misconduct, or default of any such agent or representative selected and2217
retained with due care on the part of the fiduciary; provided, however, that, if an attorney2218
in fact is appointed by a power of attorney to which Chapter 6B of Title 10 is applicable2219
under Code Section 10-6B-81, the exercise of the fiduciary powers of the trustee by the2220
attorney in fact shall be subject to Code Section 10-6B-40;"2221
"(28) To determine:2222
(A) What is principal and what is income of any estate or trust and to allocate or2223
apportion receipts and expenses, as between principal and income, in the exercise of the2224
fiduciary's discretion and, by way of illustration and not limitation of the fiduciary's2225
discretion, to charge premiums on securities purchased at a premium against principal2226
or income or partly against each;2227
(B) Whether to apply stock dividends and other noncash dividends to income or2228
principal or to apportion them as the fiduciary shall deem advisable; and2229
(C) What expenses, costs, and taxes, other than estate, inheritance, and succession2230
taxes and other governmental charges, shall be charged against principal or income or2231
apportioned between principal and income and in what proportions; and2232
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(29) To make, modify, and execute contracts and other instruments, under seal or
2233
otherwise, as the fiduciary deems advisable; and
2234
(30) To endorse, guarantee, become the surety of or otherwise become obligated for or2235
with respect to the debts or other obligations of a beneficiary or any debt or obligation2236
incurred for the benefit of a beneficiary, whether with or without consideration, as the2237
fiduciary deems advisable."2238
SECTION 84.2239
Said title is further amended by revising Code Section 53-12-262, relating to powers of2240
corporate fiduciaries, as follows:2241
"53-12-262.2242
A corporate fiduciary, without authorization by the court, may exercise the power:2243
(1) To retain stock or other securities of its own issue received on the creation of the trust2244
or later contributed to the trust, including the securities into which the securities2245
originally received or contributed may be converted or which that may be derived2246
therefrom as a result of merger, consolidation, stock dividends, splits, liquidations, and2247
similar procedures. The corporate fiduciary may exercise by purchase or otherwise any2248
rights, warrants, or conversion features attaching to any such securities. The authority2249
described in this paragraph shall:2250
(A) Apply to the exchange or conversion of stock or securities of the corporate2251
fiduciary's own issue, regardless of whether or not any new stock or securities received2252
in exchange therefor are substantially equivalent to those originally held;2253
(B) Apply to the continued retention of all new stock and securities resulting from2254
merger, consolidation, stock dividends, splits, liquidations, and similar procedures and2255
received by virtue of such conversion or exchange of stock or securities of the corporate2256
fiduciary's own issue, regardless of whether or not the new stock or securities are2257
substantially equivalent to those originally received by the fiduciary;2258
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(C) Have reference, inter alia, to the exchange of such stock or securities for stock or
2259
securities of any holding company which
that owns stock or other interests in one or2260
more other corporations, including the corporate fiduciary, whether the holding2261
company is newly formed or already existing and regardless of whether or not any of2262
the corporations own assets identical or similar to the assets of or carry on a business2263
identical or similar to the corporation whose stock or securities were previously2264
received by the fiduciary and the continued retention of stock or securities, or both, of2265
the holding company; and2266
(D) Apply regardless of whether any of the corporations have officers, directors,2267
employees, agents, or trustees in common with the corporation whose stock or2268
securities were previously received by the fiduciary; and2269
(2) To borrow money from its own banking department for such periods of time and2270
upon such terms and conditions as to rates, maturities, renewals, and security as the2271
fiduciary shall deem advisable for the any purpose of paying debts, taxes, or other2272
charges against the estate or any trust or any part thereof, and to mortgage, pledge, or2273
otherwise encumber such portion of the estate or any trust as may be required to secure2274
the loan or loans; and to renew existing loans either as maker or endorser."2275
SECTION 85.2276
Said title is further amended by repealing Code Section 53-12-264, relating to granting of2277
powers by qualified beneficiaries.2278
SECTION 86.2279
Said title is further amended by revising Code Section 53-12-270, relating to exercise of2280
power by trustee who is also a beneficiary, as follows:2281
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"53-12-270.
2282
(a) Subject to subsection (c) of this Code section, and unless the trust provisions expressly2283
indicate that a rule in this subsection shall not apply, a person other than a settlor or donor
2284
who is a beneficiary and either a trustee or trust director of a trust shall not:2285
(1) A person other than a settlor who is a beneficiary and trustee of a trust that confers2286
on such trustee a power to make Make discretionary distributions to or for such trustee's2287
personal the benefit may exercise such power only in of such person unless in accordance2288
with an ascertainable standard; and2289
(2) Make discretionary allocations of receipts or expenses as between principal and2290
income, unless such person acts in a fiduciary capacity whereby such person has no2291
power to enlarge or shift any beneficial interest except as an incidental consequence of2292
the discharge of such person's fiduciary duties; and2293
(3) Make A trustee shall not exercise a power to make discretionary distributions to2294
satisfy a any of such person's legal obligation obligations of support that such trustee2295
personally owes another person.2296
(b) A power whose exercise is limited or prohibited by subsection (a) of this Code section2297
may be exercised by a majority of the remaining trustees or trust directors who have the2298
power to make or direct discretionary distributions to or for such trustee or trust director2299
and whose exercise of such power is not so limited or prohibited. If the power of all2300
trustees or trust directors is so limited or prohibited, the court may appoint a special2301
fiduciary with authority to exercise the power.2302
(c) Subsection (a) of this Code section shall not apply to:2303
(1) A power held by the settlor's or donor's spouse who is the trustee or trust director of2304
a trust for which a marital deduction, as defined in Section 2056(b)(5) or 2523(e) of the2305
federal Internal Revenue Code of 1986, was previously allowed;2306
(2) Any trust during any period that the trust may be revoked or amended by its settlor;2307
or2308
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(3) A trust if contributions to such trust qualify for the annual exclusion under Section
2309
2503(c) of the federal Internal Revenue Code of 1986; or
2310
(4) Any portion of a trust over which the trustee or trust director is expressly granted in2311
the trust instrument a presently exercisable or testamentary general power of2312
appointment.2313
(d)(1) If a beneficiary of a trust, in an individual, fiduciary, or other capacity, removes2314
and appoints a successor trustee or trust director who would be related or subordinate to2315
the beneficiary within the meaning of Section 672(c) of the federal Internal Revenue2316
Code if the beneficiary were a grantor, the successor trustee or trust director's2317
discretionary powers shall be limited as follows:2318
(A) The trustee or trust director's discretionary power to make distributions to or for2319
the benefit of that beneficiary is limited to an ascertainable standard;2320
(B) The trustee or trust director's discretionary power shall not be exercised to satisfy2321
any of that beneficiary's legal obligations for support or other purposes; and2322
(C) The trustee or trust director's discretionary power shall not be exercised to grant2323
to the beneficiary a general power to appoint property of the trust to the beneficiary, the2324
beneficiary's estate, or the creditors thereof within the meaning of Section 2041 of the2325
federal Internal Revenue Code.2326
(2) This subsection shall not apply if the appointment of the trustee or trust director by2327
the beneficiary may be made only in conjunction with another person having a substantial2328
interest in the property of the trust subject to the power that is adverse to the exercise of2329
the power in favor of the beneficiary within the meaning of Section 2041 (b)(1)(C)(ii) of2330
the federal Internal Revenue Code."2331
SECTION 87.2332
Said title is further amended by revising subsection (d) of and by adding a new subsection2333
to Code Section 53-12-301, relating to actions for breach of trust, to read as follows:2334
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"(d) If the settlor of a trust provides for both charitable and noncharitable purposes, the2335
settlor or a donor may maintain a civil action to enforce the charitable purposes of the trust.2336
(e) The provision of remedies for breach of trust shall not prevent resort to any other2337
appropriate remedy provided by statute or common law."2338
SECTION 88.2339
Said title is further amended by revising subsection (a) of Code Section 53-12-307, relating2340
to limitation of actions, as follows:2341
"(a) Unless a claim is previously barred by adjudication, consent, limitation, or otherwise,2342
if a beneficiary has received a written report was sent a written report that adequately2343
discloses disclosed the existence of a claim against the trustee for a breach of trust, the2344
claim shall be barred as to that beneficiary unless a proceeding to assert the claim is2345
commenced within two years after receipt of the report the date the beneficiary was sent2346
such report. A report adequately discloses existence of a claim if it provides sufficient2347
information so that the beneficiary knows of such claim or reasonably should have inquired2348
into the existence of such claim. If the beneficiary has not received a report which was not2349
sent a report that adequately discloses disclosed the existence of a claim against the trustee2350
for a breach of trust, such claim shall be barred as to that beneficiary unless a proceeding2351
to assert such claim is commenced within six years after the beneficiary discovered, or2352
reasonably should have discovered, the subject of such claim."2353
SECTION 89.2354
Said title is further amended by revising subsection (a) of Code Section 53-12-320, relating2355
to nonresidents acting as trustees, as follows:2356
"(a) Any nonresident who is eligible to serve as a trustee under Code Section 53-12-2012357
7-1-242, Part 1 of Article 11 of this chapter, or other applicable law may act as a trustee in2358
this state pursuant to the terms of this Code section."2359
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SECTION 90.
2360
Said title is further amended by revising subsection (a) of Code Section 53-12-321, relating2361
to foreign entities acting as trustees, as follows:2362
"(a) Any foreign entity may act in this state as a
trustee, executor, trust director, personal2363
representative, temporary administrator, conservator, or guardian, or in any other like or2364
similar fiduciary capacity, whether the appointment is by law, will, deed, inter vivos trust,2365
security deed, mortgage, deed of trust, court order, or otherwise without the necessity of2366
complying with any law of this state relating to the qualification of foreign entities to do2367
business in this state or the licensing of foreign entities to do business in this state, except2368
as provided in this article, and notwithstanding any prohibition, limitation, or restriction2369
contained in any other law of this state, provided only that the foreign entity is authorized2370
to act in the fiduciary capacity in the state in which it is chartered or licensed or, if the2371
foreign entity is a national banking association, in the state in which it has its principal2372
place of business."2373
SECTION 91.2374
Said title is further amended by revising subsection (c) of Code Section 53-12-323, relating2375
to filing statement with Secretary of State and appointment of agent for service, as follows:2376
"(c) Any foreign entity that acts as a trustee or trust director in this state shall be deemed2377
to have consented to service upon the Secretary of State of any summons, notice, or process2378
in connection with any action or proceeding in the courts of this state growing out of or2379
based upon any act or failure to act on the part of the trustee or trust director unless the2380
trustee or trust director shall designate as the agent for such service some person who may2381
be found and served with notice, summons, or process in this state by a designation to be2382
filed, from time to time, in the office of the Secretary of State, giving the name of the agent2383
and the place in this state where the agent may be found and served."2384
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SECTION 92.
2385
Said title is further amended by revising subsections (b), (g), and (j) of Code Section2386
53-12-362, relating to conversion to unitrust, as follows:2387
"(b)(1) The trustee may petition the superior
court to order the conversion to a unitrust.2388
(2) A beneficiary may request a trustee to convert to a unitrust. If the trustee does not2389
convert, the beneficiary may petition the superior court to order the conversion.2390
(3) The court shall order conversion if the such court concludes that the conversion will2391
enable the trustee to better carry out the intent of the settlor or testator and the purposes2392
of the trust."2393
"(g) The trustee or, if the trustee declines to do so, a beneficiary may petition the superior2394
court to:2395
(1) Select a payout percentage different from 4 percent but not lower than 3 percent or2396
higher than 5 percent;2397
(2) Provide for a distribution of net income, as would be determined if the trust were not2398
a unitrust, in excess of the unitrust distribution if such distribution is necessary to2399
preserve a tax benefit;2400
(3) Average the valuation of the trust's net assets over a period other than three years; or2401
(4) Reconvert from a unitrust. Upon a reconversion, the power to adjust under Code2402
Section 53-12-361 shall be revived."2403
"(j)(1) If paragraph (3) or (4) of subsection (i) of this Code section applies to a trustee2404
and there is more than one trustee, a cotrustee to whom such provision does not apply2405
may convert the trust unless the exercise of the power by the remaining trustee is2406
prohibited by the governing trust instrument.2407
(2) If paragraph (3) or (4) of subsection (i) of this Code section applies to all the trustees,2408
the trustees may petition the superior court to direct a conversion."2409
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SECTION 93.
2410
Said title is further amended by revising paragraphs (2) and (3) of Code Section 53-12-500,2411
relating to definitions regarding trust directors, as follows:2412
"(2) 'Power of appointment' means a power that enables a person, acting in a2413
nonfiduciary capacity, to:2414
(A) Designate a recipient of either an ownership interest in or another power of2415
appointment over trust property;2416
(B) Rescind or terminate either an ownership interest in or another power of2417
appointment over trust property; and
or2418
(C) Determine when a beneficiary shall have the rights granted under Code Sections2419
53-12-242 and 53-12-243 or similar rights granted under the governing trust instrument.2420
(3) 'Power of direction' means a power over a trust granted to a person by the trust2421
instrument to the extent the power is exercisable in a capacity other than as a trustee. 2422
Such term includes a power over the administration of the trust or the investment,2423
management, or distribution of the trust property; a power to consent to a trustee's2424
actions, whether through exercise of an affirmative power to consent or through2425
nonexercise of a veto power over a trustee's actions, where a trustee may not act without2426
such consent; and all further powers appropriate to the exercise or nonexercise of such2427
powers held by the trust director pursuant to subsection (a) of Code Section 53-12-502. 2428
Such term shall exclude the powers described in subsection (b) of Code Section2429
53-12-501 and the power of a person designated in a trust instrument to receive notice2430
and provide consent pursuant to paragraph (6) of subsection (f) of Code Section 53-12-8."2431
SECTION 94.2432
Said title is further amended by revising paragraph (5) of subsection (b) of Code Section2433
53-12-501, relating to application of article and construction of trust instrument, as follows:2434
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"(5) A power over a trust if both:
2435
(A) The trust instrument provides such power is held in a nonfiduciary capacity; and2436
(B) Such power is
must be held in a nonfiduciary capacity to achieve the settlor's tax2437
objectives."2438
SECTION 95.2439
Said title is further amended by revising Code Section 53-12-506, relating to statutory2440
provisions applicable to trust directors, defenses available to trust directors, personal2441
jurisdiction, and term "trustee" includes trust director where required or permitted, as2442
follows:2443
"53-12-506.2444
(a) An individual shall be eligible to serve as a trust director regardless of citizenship and2445
or residency. If the trust director is a corporation, partnership, or other entity, it shall be2446
required to have the power to act as a trustee in Georgia.2447
(b) The rules applicable to a trustee apply to a trust director regarding:2448
(1) Jurisdiction under Code Section 53-12-6;2449
(2) All matters governed by Article 11 of this chapter, including, but not limited to,2450
appointment Appointment and acceptance, compensation, and resignation and removal2451
of trustees under Article 11 of this chapter; and2452
(3) Accounting under Article 12 of this chapter; and.2453
(4) Nonresidents and foreign entities acting as trustees under Article 15 of this chapter.2454
(c) In an action against a trust director for breach of trust, the trust director may assert the2455
same defenses a trustee in a like position and under similar circumstances could assert in2456
an action for breach of trust against the trustee.2457
(d) By accepting appointment as a trust director of a trust subject to this article, a trust2458
director submits to personal jurisdiction of the courts of this state regarding any matter2459
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related to a power or duty of a trust director. This subsection shall not preclude use of2460
another method to obtain jurisdiction over a trust director.2461
(e) As used in this Code, where the context requires or permits, the term 'trustee' includes2462
a trust director."2463
SECTION 96.2464
Said title is further amended by adding a new article to Chapter 12, relating to trusts, to read2465
as follows:2466
"ARTICLE 192467
53-12-510.2468
As used in this article, the term:2469
(1) 'Electronic' means relating to technology having electrical, digital, magnetic,2470
wireless, optical, electromagnetic, or similar capabilities.2471
(2) 'Electronic address' means a unique username or other identifier, commonly2472
expressed as a string of characters or numbers, at which information may be received by2473
electronic means and shall include, but shall not be limited to, an email or internet2474
address, and any other information system or portion thereof, designed for the exchange2475
of information among parties.2476
(3) 'Electronic portal' means a website or other similar electronic service through which2477
a person may retrieve information.2478
(4) 'Electronic record' means a record created, generated, sent, communicated, received,2479
or stored by electronic means.2480
(5) 'Electronic signature' means an electronic symbol or process attached to or logically2481
associated with a record and executed or adopted by a person with the intent to sign the2482
record.2483
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(6) 'Information' includes data, text, images, codes, computer programs, software, and2484
data bases.2485
(7) 'Record' means information:2486
(A) Inscribed on a tangible medium; or2487
(B) Stored in an electronic or other medium and retrievable in perceivable form.2488
(8) 'Security procedure' means a procedure applied to verify that an electronic signature,2489
record, or performance is that of a specific person or to detect a change or error in an2490
electronic record. Such term includes a procedure that uses an algorithm, code,2491
identifying word or number, encryption, or callback or other acknowledgment procedure.2492
(9) 'Sign' means, with present intent to authenticate or adopt a record:2493
(A) Execute or adopt a tangible symbol; or2494
(B) Attach to or logically associate with the record an electronic signature.2495
53-12-511.2496
(a) This Code section shall govern notice to a person or the sending of a record to a person2497
under this chapter, under the provisions of a trust instrument, or with respect to any matter2498
involving a trust. This Code section shall not govern whether notice or the sending of a2499
record complied with any duties relating to the privacy, confidentiality, or security of a2500
notice or record.2501
(b) Notice to a person or the sending of a record to a person shall be accomplished in a2502
manner that is likely to result in receipt of the notice or record and reasonably suitable2503
under the circumstances.2504
(c) Without limitation, the manner of notice to a person or the sending of a record to a2505
person shall be presumed likely to result in receipt of the notice or record, unless proven2506
otherwise by clear and convincing evidence, if accomplished by:2507
(1) Personal delivery;2508
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(2) Registered or certified mail or statutory overnight delivery to either the person's last2509
known place of residence or place of business or the address last used by the person to2510
receive notices or records;2511
(3) An electronic address the person has consented to use to receive notices or records;2512
or2513
(4)(A) An electronic portal if:2514
(i) The person has been granted access to an electronic portal and informed that2515
notices and records will be made available in the electronic portal;2516
(ii) The notice or record is made available in the electronic portal;2517
(iii) Concurrently with or subsequently to the notice or record being made available2518
in the electronic portal, the person is notified that one or more notices or records have2519
been made available in the electronic portal; and2520
(iv) For a period of at least 90 days after the date on which the person was notified2521
as provided in division (iii) of this subparagraph, the person's access to the electronic2522
portal is not terminated without his or her consent and the notice or record remains2523
available in the electronic portal.2524
(B) If the person objects to notices or the sending of records by means of an electronic2525
address or electronic portal, then notice or the sending of a record by such means shall2526
not be presumed likely to result in receipt of the notice or record.2527
(d) If a record was sent to a beneficiary solely by means of an electronic portal and the2528
existence of a claim would not have been adequately disclosed to the beneficiary for2529
purposes of Code Section 53-12-307 but for the sending of the record, the running of the2530
limitations period under Code Section 53-12-307 for such claim shall be tolled if the2531
beneficiary's access to the electronic portal is terminated without his or her consent or the2532
record is no longer available in the electronic portal; provided, however, that the period2533
shall not be tolled if, within 30 days after such event, the beneficiary is notified of an2534
alternative means by which to obtain the record. If the limitations period is tolled, the2535
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period shall recommence on the date on which the record is resent to the beneficiary,2536
whether by means of an electronic portal or otherwise.2537
(e)(1) For purposes of subsections (c) and (d) of this Code section:2538
(A) Without limitation, a person consents to the use of an electronic address to receive2539
notices and records from:2540
(i) Any person with respect to any matter involving a particular trust, by providing2541
the electronic address to any other person to be used to receive notices and records2542
with respect to any matters involving such trust, regardless of whether such other2543
person is the person providing notice or sending the record; and2544
(ii) A particular person with respect to any matter involving any trust, by providing2545
the electronic address to such person to receive such notices and records with respect2546
to any matters involving a trust, regardless of whether such trust is the trust to which2547
the notice or record relates; and2548
(B) The use of an electronic address by a person with respect to any matter involving2549
a trust shall constitute a provision of the electronic address with respect to the trust2550
under division (i) of subparagraph (A) of this paragraph and the use of an electronic2551
address to communicate with another person with respect to any matter involving a trust2552
shall constitute a provision of the electronic address to the other person under division2553
(ii) of subparagraph (A) of this paragraph.2554
(2) Requiring a person to take steps to activate his or her account in an electronic portal2555
or take other similar actions to establish access to an electronic portal shall not prevent2556
the person from having been granted access to the electronic portal.2557
(3) A notice or record shall not be considered to have been made available in an2558
electronic portal unless a person who has been granted access to the electronic portal can2559
download or otherwise preserve a copy of the notice or record outside of the electronic2560
portal.2561
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(4) If a notice or record is made available in an electronic portal but the notice required2562
by division (c)(4)(A)(iii) of this Code section is not provided to a person who has been2563
granted access to the electronic portal, such notice shall be deemed provided to such2564
person on the next date on which the person accesses the electronic portal.2565
(5) A person's access to an electronic portal shall not be considered to have been2566
terminated without his or her consent solely because such person is required to change2567
or reset his or her password or take other similar actions to preserve his or her access.2568
(f) With respect to whether notice or the sending of a record to a person was reasonably2569
suitable under the circumstances:2570
(1) For purposes of Code Section 53-12-307 providing for the limitation of actions, the2571
sending of a record to a person in a manner that is likely to result in receipt shall be2572
presumed to have been accomplished in a manner that was reasonably suitable under the2573
circumstances unless proven otherwise by clear and convincing evidence; and2574
(2) For all other purposes, whether notice or the sending of a record to a person was2575
accomplished in a manner reasonably suitable under the circumstances shall be2576
determined, without limitation, in the context of the subject matter of the notice or record,2577
the length of any time period imposed with respect to notice or sending of the record, the2578
circumstances of the person, the sender's knowledge of those circumstances, and when2579
actual receipt, if any, occurred.2580
(g) Notice to a person or the sending of a record to a person shall be deemed:2581
(1) To have been accomplished on the date such person has actual knowledge of the2582
contents of the notice or record; and2583
(2) Not to have been accomplished if the person providing notice or sending a record has2584
actual knowledge the person did not receive the notice or record.2585
(h) Notice or the sending of a record to a person otherwise required under this chapter or2586
the trust instrument:2587
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(1) Need not be provided to a person whose identity or location is unknown to and not2588
reasonably ascertainable by the trustee, trust director, or other person required to provide2589
the notice or send the record; and2590
(2) May be waived by the person to be notified or sent the record.2591
(i) An action by a trustee, trust director, or other person authorized under this chapter or2592
a trust instrument to act with respect to any matter involving a trust shall not be ineffective2593
because of a failure to provide notice required under this chapter or the trust instrument if2594
such person acted with reasonable care to comply with this Code section.2595
(j) Notice of a judicial proceeding shall be provided as required by the applicable rules of2596
civil procedure.2597
(k) This Code section shall be construed and applied to be consistent with reasonable2598
practices concerning the use of electronic addresses and electronic portals to provide notice2599
and send records for matters involving trusts and the continued expansion of those2600
practices.2601
53-12-512.2602
(a) This Code section shall apply to all records and signatures relating to trusts, except a2603
writing and signature creating or declaring an express trust under Code Section 53-12-20,2604
including, but not limited to:2605
(1) Exercises, delegations, determinations, releases, waivers, renunciations, disclaimers,2606
and all other actions related to powers and rights granted under this chapter or a trust2607
instrument;2608
(2) Notices and records required to be provided or sent by this chapter or the provisions2609
of a trust instrument, including, but not limited to, notices under Code Section 53-12-242,2610
reports and accounts under Code Section 53-12-243, and accountings under Article 122611
of this chapter;2612
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(3) Binding nonjudicial settlement agreements under Code Section 53-12-9 or other2613
applicable law, including agreements that modify a trust instrument;2614
(4) Notices of a trustee's decision to exercise the power to distribute income or principal2615
of a trust under Code Section 53-12-62 or other applicable law;2616
(5) Consents to actions by and the release from liability of a trustee or trust director;2617
(6) Reports described in Code Section 53-12-307; and2618
(7) Certifications of a trust under Code Section 53-12-280.2619
(b) This Code section shall be construed and applied to facilitate electronic records and2620
electronic signatures consistent with other law and to be consistent with reasonable2621
practices concerning electronic records and electronic signatures and continued expansion2622
of those practices.2623
(c) This Code section shall not invalidate an electronic record or electronic signature that2624
is valid under other applicable law.2625
(d)(1) A record or signature shall not be denied legal effect or enforceability solely2626
because it is in electronic form.2627
(2) If other laws of this state or a trust instrument require a record to be in writing, an2628
electronic record satisfies the requirement.2629
(3) If other laws of this state or a trust instrument require a signature to be in writing, an2630
electronic signature satisfies the requirement.2631
(e)(1) An electronic record or electronic signature is attributable to a person if it was the2632
act of the person. The act of the person may be shown in any manner, including, but not2633
limited to, showing the efficacy of a security procedure applied to determine the person2634
to which the electronic record or electronic signature was attributable.2635
(2) The effect of attribution to a person under paragraph (1) of this subsection of a record2636
or signature shall be determined from the context and surrounding circumstances at the2637
time of its creation, execution, or adoption and as provided by other law.2638
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(f) If other laws of this state or a trust instrument require a record or signature to be2639
acknowledged or notarized, the requirement shall be satisfied if the signature of the2640
individual performing the acknowledgement or notarization, together with all other2641
information required to be included under other laws of this state or the trust instrument,2642
is attached to or logically associated with the electronic record or electronic signature.2643
(g) A person may create a certified paper copy of an electronic record by affirming under2644
penalty of perjury that the paper copy is a complete and accurate copy of the record.2645
(h) If other laws of this state or a trust instrument require a record to be retained,2646
transmitted, copied, or filed:2647
(1) The requirement shall be satisfied by retaining, transmitting, copying, or filing an2648
electronic record that:2649
(A) Accurately reflects the information in the record after it was first generated in final2650
form as an electronic record or as a certified paper copy under this Code section; and2651
(B) Remains accessible to the extent required by the other laws of this state or a trust2652
instrument;2653
(2) The requirement to retain a record shall not apply to information the sole purpose of2654
which is to enable the record to be sent, communicated, or received;2655
(3) A person may satisfy paragraph (1) of this subsection by using the services of another2656
person;2657
(4) A requirement that a record be presented or retained in its original form shall be2658
satisfied by an electronic record retained in accordance with this subsection; and2659
(5) This subsection shall not preclude a governmental agency from specifying2660
requirements for the retention of a record subject to the agency's jurisdiction in addition2661
to those in this subsection.2662
(i) Evidence relating to a record or a signature may not be excluded in a judicial2663
proceeding solely because it is in electronic form.2664
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53-12-513.2665
The provisions of this chapter conform to the requirements of Section 102 of the Electronic2666
Signatures in Global and National Commerce Act, 15 U.S.C. Section 7002, and supersede,2667
modify, and limit the requirements of such act."2668
SECTION 97.2669
All laws and parts of laws in conflict with this Act are repealed.2670
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