The Atlanta Title Company
Residential and Commercial Real Estate Lawyers
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29.1 Verification of Existence of Trust and Authority of Trustee

When title comes out of a conveyance by a trustee, reference should be made to the trust indenture, in order to verify that the trust is not fully executed or otherwise terminated, and that title therefore continues to reside in the trustee, and has not passed from the trustee to the beneficiary or other party.

Reference must also be made to the trust indenture to verify that the trustee is in fact duly appointed and qualified, and that he/she has the authority to execute the particular instrument in question. The examiner must further ascertain the ability of the named trustee to serve as a trustee under Georgia law.

Generally, such verification as to existence of the trust and authority of the trustee must be made by reference to facts or documents outside the record. It is recommended, therefore, that attorneys make every effort to place such instrument on the record in the future as will aid title examiners in ascertaining the facts.

Comment: See Pindar, Ga. Real Est. Law, Sections 26-57 through -63 (4th ed.); Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1930); and Avera v. Avera, 253 Ga. 16, 315 S.E.2d 883 (1985).

29.2 Effect of Designation “Trust” and “Trustee”

A deed or other instrument of conveyance must state that title is conveyed to a “party, as trustee,” and not to the “trust” in and of itself, as only a trustee, and not the trust, is authorized to hold legal title. A deed or instrument must state that title is conveyed to a “party, as trustee,” and not to a “party, trustee.”

Comment: “Georgia Trust Act,” O.C.G.A. Sections 53-12-1 et seq. [See in particular: definitions of “Trust” and “Trustee” at Section 53-12-2, “Capacity of Trustee” at Section 5312-24, and “Creation of Beneficial Interest in Property by Deed” at Section 53-12-51]. See Standard 8.1, supra.

29.3 Trust Established In Accordance With Provisions of “Testamentary Additions to Trust Act”

In reviewing marketability of conveyances by trustees, an examining attorney must keep in mind where applicable the provisions of the “Testamentary Additions to Trusts Act” (O.C.G.A. Sections 53-12-70 through -74).

Comment: Under the provisions of this Act, a devise or bequest in a will of a testator dying on or after May 31, 1968, may be made to the trustee or trustees of a trust established or to be established by the testator or by the testator and some other person or persons or by some other person or persons, if the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before or concurrently with the execution of the testator’s will or in the valid last will of a person who has predeceased the testator. The devise or bequest will not be invalid because the trust is amendable, revocable, or both or because the trust was amended after the execution of the will or after the death of the testator. Unless the testator’s will provides otherwise, the property so devised or bequeathed shall not be deemed to be held under a testamentary trust of the testator but shall be administered and disposed of in accordance with the provisions of the instrument or trust setting forth the terms of the trust.