Georgia's trust law has become more onerous for trustees. Whereas in the past, you could leave property in your will to a trustee whom you (get ready) trusted to manage it well without much supervision, the default rule now is that trustees must make at least annual reports to the trust's beneficiaries of their doings. Furthermore, there is a new requirement that beneficiaries be informed of their rights in trust within 60 days of its becoming irrevocable (as when the maker of a will dies).
Of course, under the old, pre-2010 law, any testator could make a will with the above requirements, but few did. By altering the default rule, the Georgia legislature now requires that we opt out of the new reporting requirements. What are some reasons we might? For one reason, as stated, many testators (i.e., makers of wills) simply trust their trustees to report when and if necessary. Another reason to opt out: many trustees are non-professionals, family members of the testator, who serve only grudgingly and don't want extra paperwork every year at tax time.
So for those who would opt out of the new requirements, I have crafted the following two will provisions. Each attempts to eliminate a more onerous reporting requirement of the new law without doing away with the common law rule that fiduciaries must still use due care and report if and when necessary (or, as under the post-2010 regime, upon request.)
My provisions are below. I invite comment.
F. WAIVER OF TRUSTEE'S NOTICES. No Trustee serving pursuant to any provision of this Will shall be required to give the notice set forth in Georgia Laws 2010, Act 506, § 1 and codified in O.C.G.A. § 53-12-242(a) (as such statute may be amended and revised up to the date of signing of this Will) to the beneficiar(ies), qualified or otherwise, of any Trust created hereunder unless, under exceptional circumstances, prudence and reasonable fiduciary duty would so require, as when (by way of non-exclusive example) the failure to give notice would substantially impair a legal right of a beneficiary and the Trustee has actual notice of such impairment. Notwithstanding anything in this paragraph, any Trustee may give any notice to any beneficiary that seems reasonable and prudent in his or her discretion.
G. WAIVER OF TRUSTEE'S ANNUAL REPORTS. No Trustee serving pursuant to any provision of this Will shall be required to give the annual reports set forth in Georgia Laws 2010, Act 506, § 1 and codified in O.C.G.A. § 53-12-243(b)(1) and (b)(2) (as such statute may be amended and revised up to the date of signing of this Will) to the beneficiar(ies), qualified or otherwise, of any Trust created hereunder unless, under exceptional circumstances, prudence and reasonable fiduciary duty would so require, as when (by way of non-exclusive example) the failure to give such report would substantially impair a legal right of a beneficiary and the Trustee has actual notice of such impairment. Notwithstanding anything in this paragraph, any Trustee may give any report to any beneficiary that seems reasonable and prudent in his or her discretion. Nothing in this paragraph shall be construed as a waiver of the reporting requirement upon reasonable request codified in O.C.G.A. § 53-12-243(a).
Of course, under the old, pre-2010 law, any testator could make a will with the above requirements, but few did. By altering the default rule, the Georgia legislature now requires that we opt out of the new reporting requirements. What are some reasons we might? For one reason, as stated, many testators (i.e., makers of wills) simply trust their trustees to report when and if necessary. Another reason to opt out: many trustees are non-professionals, family members of the testator, who serve only grudgingly and don't want extra paperwork every year at tax time.
So for those who would opt out of the new requirements, I have crafted the following two will provisions. Each attempts to eliminate a more onerous reporting requirement of the new law without doing away with the common law rule that fiduciaries must still use due care and report if and when necessary (or, as under the post-2010 regime, upon request.)
My provisions are below. I invite comment.
F. WAIVER OF TRUSTEE'S NOTICES. No Trustee serving pursuant to any provision of this Will shall be required to give the notice set forth in Georgia Laws 2010, Act 506, § 1 and codified in O.C.G.A. § 53-12-242(a) (as such statute may be amended and revised up to the date of signing of this Will) to the beneficiar(ies), qualified or otherwise, of any Trust created hereunder unless, under exceptional circumstances, prudence and reasonable fiduciary duty would so require, as when (by way of non-exclusive example) the failure to give notice would substantially impair a legal right of a beneficiary and the Trustee has actual notice of such impairment. Notwithstanding anything in this paragraph, any Trustee may give any notice to any beneficiary that seems reasonable and prudent in his or her discretion.
G. WAIVER OF TRUSTEE'S ANNUAL REPORTS. No Trustee serving pursuant to any provision of this Will shall be required to give the annual reports set forth in Georgia Laws 2010, Act 506, § 1 and codified in O.C.G.A. § 53-12-243(b)(1) and (b)(2) (as such statute may be amended and revised up to the date of signing of this Will) to the beneficiar(ies), qualified or otherwise, of any Trust created hereunder unless, under exceptional circumstances, prudence and reasonable fiduciary duty would so require, as when (by way of non-exclusive example) the failure to give such report would substantially impair a legal right of a beneficiary and the Trustee has actual notice of such impairment. Notwithstanding anything in this paragraph, any Trustee may give any report to any beneficiary that seems reasonable and prudent in his or her discretion. Nothing in this paragraph shall be construed as a waiver of the reporting requirement upon reasonable request codified in O.C.G.A. § 53-12-243(a).
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