GA Code § 53-12-261 (2021)
2021 Georgia Code|Title 53 - Wills, Trusts, and Administration of Estates|Chapter 12 - Trusts|Article 13 - Trustees' Duties and Powers|Part 2 - Trustees' Powers|§ 53-12-261. Powers of Trustee; Limitation Based on Fiduciary Duties

  A trustee of an express trust, without court authorization, shall be authorized to exercise:   Powers conferred by the trust instrument; and   Except as limited by the trust instrument:   All powers over the trust property that an unmarried competent owner has over individually owned property;   Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property; and   Any other powers conferred by this chapter.       Without limiting the authority conferred by subsection (a) of this Code section, a trustee of an express trust, without court authorization, shall be authorized:   To sell, exchange, grant options upon, partition, or otherwise dispose of any property or interest therein which the fiduciary may hold from time to time, at public or private sale or otherwise, with or without warranties or representations, upon such terms and conditions, including credit, and for such consideration as the fiduciary deems advisable and to transfer and convey the property or interest therein which is at the disposal of the fiduciary, in fee simple absolute or otherwise, free of all trust. The party dealing with the fiduciary shall not be under a duty to follow the proceeds or other consideration received;   To invest and reinvest in any property which the fiduciary deems advisable, including, but not limited to, common or preferred stocks, bonds, debentures, notes, mortgages, or other securities, in or outside the United States; insurance contracts on the life of any beneficiary or of any person in whom a beneficiary has an insurable interest or in annuity contracts for any beneficiary; any real or personal property; investment trusts, including the securities of or other interests in any open-end or closed-end management investment company or investment trust registered under the federal Investment Company Act of 1940, 15 U.S.C. Section 80a-1, et seq.; and participations in common trust funds;   To the extent and upon such terms and conditions and for such periods of time as the fiduciary shall deem necessary or advisable, to continue or participate in the operation of any business or other enterprise, whatever its form or organization, including, but not limited to, the power:   To effect incorporation, dissolution, or other change in the form of the organization of the business or enterprise;   To dispose of any interest therein or acquire the interest of others therein;   To contribute or invest additional capital thereto or to lend money thereto in any such case upon such terms and conditions as the fiduciary shall approve from time to time; and   To determine whether the liabilities incurred in the conduct of the business are to be chargeable solely to the part of the property held by the fiduciary set aside for use in the business or to the property held by the fiduciary as a whole.  In all cases in which the fiduciary is required to file accounts in any court or in any other public office, it shall not be necessary to itemize receipts, disbursements, and distributions of property; but it shall be sufficient for the fiduciary to show in the account a single figure or consolidation of figures, and the fiduciary shall be permitted to account for money and property received from the business and any payments made to the business in lump sum without itemization;      To form a corporation or other entity and to transfer, assign, and convey to the corporation or entity all or any part of the property held by the fiduciary in exchange for the stock, securities, or obligations of or other interests in any such corporation or entity and to continue to hold the stock, securities, obligations, and interests;   To continue any farming operation and to do any and all things deemed advisable by the fiduciary in the management and maintenance of the farm and the production and marketing of crops and dairy, poultry, livestock, orchard, and forest products, including, but not limited to, the power:   To operate the farm with hired labor, tenants, or sharecroppers;   To lease or rent the farm for cash or for a share of the crops;   To purchase or otherwise acquire farm machinery, equipment, and livestock;   To construct, repair, and improve farm buildings of all kinds needed, in the fiduciary's judgment, for the operation of the farm;   To make or obtain loans or advances at the prevailing rate or rates of interest for farm purposes, such as for production, harvesting, or marketing; or for the construction, repair, or improvement of farm buildings; or for the purchase of farm machinery, equipment, or livestock;   To employ approved soil conservation practices, in order to conserve, improve, and maintain the fertility and productivity of the soil;   To protect, manage, and improve the timber and forest on the farm and to sell the timber and forest products when it is to the best interest of the persons to whom the fiduciary owes a duty of care;   To ditch, dam, and drain damp or wet fields and areas of the farm when and where needed;   To engage in the production of livestock, poultry, or dairy products and to construct such fences and buildings and to plant pastures and crops as may be necessary to carry on such operations;   To market the products of the farm; and   In general, to employ good husbandry in the farming operation;     To manage real property:   To improve, manage, protect, and subdivide any real property;   To dedicate, or withdraw from dedication, parks, streets, highways, or alleys;   To terminate any subdivision or part thereof;   To borrow money for the purposes authorized by this paragraph for the periods of time and upon the terms and conditions as to rates, maturities, and renewals as the fiduciary shall deem advisable and to mortgage or otherwise encumber the property or part thereof, whether in possession or reversion;   To lease the property or part thereof, the lease to commence at the present or in the future, upon the terms and conditions, including options to renew or purchase, and for the period or periods of time as the fiduciary deems advisable even though the period or periods may extend beyond the duration of the estate or trust;   To make gravel, sand, oil, gas, and other mineral leases, contracts, licenses, conveyances, or grants of every nature and kind which are lawful in the jurisdiction in which the property lies;   To manage and improve timber and forests on the property, to sell the timber and forest products, and to make grants, leases, and contracts with respect thereto;   To modify, renew, or extend leases;   To employ agents to rent and collect rents;   To create easements and to release, convey, or assign any right, title, or interest with respect to any easement on the property or part thereof;   To erect, repair, or renovate any building or other improvement on the property and to remove or demolish any building or other improvement in whole or in part; and   To deal with the property and every part thereof in all other ways and for such other purposes or considerations as it would be lawful for any person owning the same to deal with such property either in the same or in different ways from those specified elsewhere in this paragraph;     To lease personal property held by the fiduciary or part thereof, the lease to commence at the present or in the future, upon the terms and conditions, including options to renew or purchase, and for the period or periods of time as the fiduciary deems advisable even though the period or periods may extend beyond the duration of the estate or trust;     To pay debts, taxes, assessments, compensation of the fiduciary, and other expenses incurred in the collection, care, administration, and protection of the property held by the fiduciary; and   To pay from the estate or trust all charges that the fiduciary deems necessary or appropriate to comply with laws regulating environmental conditions and to remedy or ameliorate any such conditions which the fiduciary determines adversely affect the property held by the fiduciary or otherwise are liabilities of the estate or trust and to apportion all such charges among the several bequests and trusts and the interests of the beneficiaries in such manner as the fiduciary deems fair, prudent, and equitable under the circumstances;     To receive additional property from any source and to administer the additional property as a portion of the appropriate estate or trust under the management of the fiduciary, provided that the fiduciary shall not be required to receive the property without the fiduciary's consent;   In dealing with one or more fiduciaries of the estate or any trust created by the decedent or the settlor or any spouse or child of the decedent or settlor and irrespective of whether the fiduciary is a personal representative or trustee of such other estate or trust:   To sell real or personal property of the estate or trust to such fiduciary or to exchange such property with such fiduciary upon such terms and conditions as to sale price, terms of payment, and security as shall seem advisable to the fiduciary; and the fiduciary shall be under no duty to follow the proceeds of any such sale; and   To borrow money from the estate or trust for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and securities as the fiduciary shall deem advisable for the purpose of paying debts of the decedent or settlor, taxes, the costs of the administration of the estate or trust, and like charges against the estate or trust or any part thereof or of discharging any other liabilities of the estate or trust and to mortgage, pledge, or otherwise encumber such portion of the estate or trust as may be required to secure the loan and to renew existing loans;     To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the fiduciary shall deem advisable for the purpose of paying debts, taxes, or other charges against the estate or trust or any part thereof and to mortgage, pledge, or otherwise encumber such portion of the property held by the fiduciary as may be required to secure the loan and to renew existing loans either as maker or endorser;   To make loans out of the property held by the fiduciary, including loans to a beneficiary on terms and conditions the fiduciary considers to be fair and reasonable under the circumstances, and the fiduciary has a lien on future distributions for repayment of those loans;   To vote shares of stock or other ownership interests held by the fiduciary, in person or by proxy, with or without power of substitution;   To hold a security in the name of a nominee or in other form without disclosure of the fiduciary relationship, so that title to the security may pass by delivery; but the fiduciary shall be liable for any act of the nominee in connection with the security so held;   To exercise all options, rights, and privileges to convert stocks, bonds, debentures, notes, mortgages, or other property into other stocks, bonds, debentures, notes, mortgages, or other property; to subscribe for other or additional stocks, bonds, debentures, notes, mortgages, or other property; and to hold the stocks, bonds, debentures, notes, mortgages, or other property so acquired as investments of the estate or trust so long as the fiduciary shall deem advisable;   To unite with other owners of property similar to any which may be held at any time by the fiduciary, in carrying out any plan for the consolidation or merger, dissolution or liquidation, foreclosure, lease, or sale of the property or the incorporation or reincorporation, reorganization, or readjustment of the capital or financial structure of any corporation, company, or association the securities of which may form any portion of an estate or trust; to become and serve as a member of a shareholders' or bondholders' protective committee; to deposit securities in accordance with any plan agreed upon; to pay any assessments, expenses, or sums of money that may be required for the protection or furtherance of the interest of the beneficiaries to whom the fiduciary owes a duty of care with reference to any such plan; and to receive as investments of the estate or trust any securities issued as a result of the execution of such plan;   To adjust the interest rate from time to time on any obligation, whether secured or unsecured, constituting a part of the estate or trust;   To continue any obligation, whether secured or unsecured, upon and after maturity, with or without renewal or extension, upon such terms as the fiduciary shall deem advisable, without regard to the value of the security, if any, at the time of the continuance;   To foreclose, as an incident to the collection of any bond, note, or other obligation, any deed to secure debt or any mortgage, deed of trust, or other lien securing the bond, note, or other obligation and to bid in the property at the foreclosure sale or to acquire the property by deed from the mortgagor or obligor without foreclosure; and to retain the property so bid in or taken over without foreclosure;   To carry such insurance coverage as the fiduciary shall deem advisable;   To collect, receive, and issue receipts for rents, issues, profits, and income of the estate or trust;     To compromise, adjust, mediate, arbitrate, or otherwise deal with and settle claims involving the fiduciary or the property held by the fiduciary;   To compromise, adjust, mediate, arbitrate, bring or defend actions on, abandon, or otherwise deal with and settle claims in favor of or against the estate or trust as the fiduciary shall deem advisable; the fiduciary's decision shall be conclusive between the fiduciary and the beneficiaries to whom the fiduciary owes a duty of care and the person against or for whom the claim is asserted, in the absence of fraud by such persons and, in the absence of fraud, bad faith, or gross negligence of the fiduciary, shall be conclusive between the fiduciary and the beneficiaries to whom the fiduciary owes a duty of care; and   To compromise all debts, the collection of which are doubtful, belonging to the estate or trust when such settlements will advance the interests of those represented;     To employ and compensate, out of income or principal or both and in such proportion as the fiduciary shall deem advisable, persons deemed by the fiduciary needful to advise or assist in the administration of the estate or trust, including, but not limited to, agents, accountants, brokers, attorneys at law, attorneys in fact, investment brokers, rental agents, realtors, appraisers, and tax specialists; and to do so without liability for any neglect, omission, misconduct, or default of any such agent or representative selected and retained with due care on the part of the fiduciary; provided, however, that, if an attorney in fact is appointed by a power of attorney to which Chapter 6B of Title 10 is applicable under Code Section 10-6B-81, the exercise of the fiduciary powers of the trustee by the attorney in fact shall be subject to Code Section 10-6B-40;   To acquire, receive, hold, and retain undivided the principal of several trusts created by a single trust instrument until division shall become necessary in order to make distributions; to hold, manage, invest, reinvest, and account for the several shares or parts of shares by appropriate entries in the fiduciary's books of account and to allocate to each share or part of share its proportionate part of all receipts and expenses; provided, however, that this paragraph shall not defer the vesting in possession of any share or part of share of the trust;   To set up proper and reasonable reserves for taxes, assessments, insurance premiums, depreciation, obsolescence, amortization, depletion of mineral or timber properties, repairs, improvements, and general maintenance of buildings or other property out of rents, profits, or other income received;   To value property held by the fiduciary and to distribute such property in cash or in kind, or partly in cash and partly in kind, in divided or undivided interests, as the fiduciary finds to be most practical and in the best interest of the distributees, the fiduciary being able to distribute types of assets differently among the distributees;   To transfer money or other property distributable to a beneficiary who is under age 21, an adult for whom a guardian or conservator has been appointed, or an adult who the fiduciary reasonably believes is incapacitated by distributing such money or property directly to the beneficiary or applying it for the beneficiary's benefit, or by:   Distributing it to the beneficiary's conservator or, if the beneficiary does not have a conservator, the beneficiary's guardian;   Distributing it to the beneficiary's custodian under "The Georgia Transfers to Minors Act" or similar state law and, for that purpose, creating a custodianship and designating a custodian;   Distributing it to the beneficiary's custodial trustee under the Uniform Custodial Trust Act as enacted in another state and, for that purpose, creating a custodial trust; or   Distributing it to any other person, whether or not appointed guardian or conservator by any court, who shall, in fact, have the care and custody of the person of the beneficiary.  The fiduciary shall not be under any duty to see to the application of the distributions so made if the fiduciary exercised due care in the selection of the person, including the beneficiary, to whom the payments were made; and the receipt of the person shall be full acquittance to the fiduciary;      To determine:   What is principal and what is income of any estate or trust and to allocate or apportion receipts and expenses, as between principal and income, in the exercise of the fiduciary's discretion and, by way of illustration and not limitation of the fiduciary's discretion, to charge premiums on securities purchased at a premium against principal or income or partly against each;   Whether to apply stock dividends and other noncash dividends to income or principal or to apportion them as the fiduciary shall deem advisable; and   What expenses, costs, and taxes, other than estate, inheritance, and succession taxes and other governmental charges, shall be charged against principal or income or apportioned between principal and income and in what proportions; and     To make, modify, and execute contracts and other instruments, under seal or otherwise, as the fiduciary deems advisable.     The exercise of a power shall be subject to the fiduciary duties prescribed by this title.   If a testator incorporates by reference into a will or a probate court grants to a personal representative any or all of the powers contained in this Code section, then:   As used in this Code section, the term:   "Beneficiary" includes a distributee of the estate;   "Trust" includes the estate held by the personal representative; and   "Trustee" or "fiduciary" includes the personal representative; and     A conferral upon a personal representative of the powers provided by paragraph (1) of subsection (b) of this Code section shall not authorize such personal representative to bind the estate by any warranty in any conveyance or contract in violation of subsection (a) of Code Section 53-8-14.       (Code 1981, §53-12-261, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2011, p. 551, § 12/SB 134; Ga. L. 2011, p. 752, § 53/HB 142; Ga. L. 2018, p. 262, § 20/HB 121; Ga. L. 2020, p. 377, § 1-84/HB 865.)    The 2020 amendment,  effective January 1, 2021, in subsection (b), in (b)(23), substituted "any such agent or representative" for "the agent or representative, provided such person was" and added the proviso at the end, added "and" at the end of subparagraph (b)(28(C), deleted "; and" at the end of paragraph (b)(29), and deleted former paragraph (b)(30) which read: "To serve without making and filing inventory and appraisement, without filing any annual or other returns or reports to any court, and without giving bond; but a personal representative shall furnish to the income beneficiaries, at least annually, a statement of receipts and disbursements"; in subsection (c), substituted "title" for "chapter"; and, in subsection (d), inserted "testator incorporates by reference into a will or a", inserted "or all", substituted ": (1) As" for "as", inserted a comma preceding "the term", redesignated former paragraph (d)(1) through (d)(3) as subparagraphs (d)(1)(A) through (d)(1)(C), added "; and" to the end of subparagraph (d)(1)(C), and added paragraph (d)(2).   Law reviews.   - For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 70 Mercer L. Rev. 275 (2018). For note, "Trade Secrets and Confidential Information Under Georgia Law," see 19 Ga. L. Rev. 623 (1984).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-12-232 of the 1991 Trust Act are included in the annotations for this Code section.   No excuse from fiduciary duties.    - Even if a will granted expanded powers to co-executors, the co-executors were not excused from their fiduciary duties. Bloodworth v. Bloodworth, 260 Ga. App. 466, 579 S.E.2d 858 (2003) (decided under former O.C.G.A. § 53-12-232).   Trustee could encumber trust corpus.    - Pursuant to former O.C.G.A. § 53-12-232 (see O.C.G.A. § 53-12-261), a trustee was permitted to encumber trust property, which consisted of the marital residence, up to 30% of its equity, because this permitted the widow to live in the marital residence rent-free and provided funds to pay expenses of the residence and the trustee as desired by the clear terms of the decedent's will. Martin v. Martin, 286 Ga. 69, 685 S.E.2d 288 (2009) (decided under former O.C.G.A. § 53-12-232).   Estate administrator had right to inspect.    - Order granting an estate administrator of a deceased shareholder the right to inspect the defendant's corporate books and denying the defendant's motions to compel and stay pending arbitration was affirmed because the statutes governing the transfer of stock to the estate vested ownership of the shares in the administrator of the estate and the probate court's order granted the adminstrator trustee's powers over those shares. Regal Nissan, Inc. v. Scott, 348 Ga. App. 91, 821 S.E.2d 561 (2018).   No authority existed for administratrix to sign arbitration agreement on behalf of disabled child.    - Order compelling arbitration was reversed because the administratrix of an adult child, who was an incapacitated person, had no authority to sign the arbitration agreement as the child did not personally assent and there was no evidence that the administratrix had actual authority as there existed no power of attorney or any other document authorizing the administratrix to sign the arbitration agreement or to take any action on the child's behalf. Lynn v. Lowndes County Health Servs., LLC, 354 Ga. App. 242, 840 S.E.2d 623 (2020), cert. denied, 2020 Ga. LEXIS 712 (Ga. 2020).   Removal for cause upheld.    - Probate court order removing an executor for cause was affirmed because the executor violated their fiduciary duty in numerous ways by failing to dissolve the estate business, using estate property and funds for their own benefit and to pay personal bills, overpaid executor's fees, and had a conflict of interest by continuing to operate the business despite the estate losing money but personally benefitting by using the business property rent free. Myers v. Myers, 297 Ga. 490, 775 S.E.2d 145 (2015).    Cited in Ray v. Nat'l Health Investors, Inc., 280 Ga. App. 44, 633 S.E.2d 388 (2006).   OPINIONS OF THE ATTORNEY GENERAL   Editor's notes.   - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 108-1204, are included in the annotations for this Code section.   Power to vote shares not appearing in trust instrument.   - Power to vote shares may be granted to trustees without the matter appearing affirmatively in the trust instrument. 1981 Op. Att'y Gen. No. 81-92 (decided under former Code 1933, § 108-1204).   RESEARCH REFERENCES   ALR.   - Implication of right of life tenant to entrench upon or dispose of corpus from language relating to the extent of his dominion over the corpus, or the beneficial purpose of the provision for the life tenant, 31 A.L.R.3d 169.   Language of will or other trust instrument as implying right to invade principal on behalf of life beneficiary, 31 A.L.R.3d 309.   Propriety of considering beneficiary's other means under trust provision authorizing invasion of principal for beneficiary's support, 41 A.L.R.3d 255.