Revocable Trust for Single Individual
(Pot Trust for Children) (GA)

Summary

This template is a revocable trust for a single individual with a pot trust for children. At the death of the settlor, a trust is created for the benefit of the settlor’s children. Use this template for an unmarried person as part of a wealth transfer plan in Georgia. This template includes practical guidance, drafting notes, and an alternate clause. Although not as widely employed in Georgia as in other states, revocable trusts are used in Georgia for several reasons: as a will substitute for probate avoidance, to hold out-of-state property, and in anticipation of the settlor’s incapacity if the trust is funded during the life of the settlor. Because the settlor retains power over the trust assets, revocable trusts do not eliminate federal estate taxes. They also do not offer asset protection. A revocable trust automatically becomes irrevocable upon the death of the settlor. In order to make sure that all of the decedent’s assets are properly transferred to the beneficiaries, a revocable trust should be used together and coordinated with a pour over will. Upon the death of the settlor of this trust, all assets are left to the settlor’s children in a single trust, commonly known as a “pot trust,” until the youngest child reaches age 21. The trustee has broad discretion in providing for the children from the assets in this pooled trust without regard for how much is spent on each child. The trustee is not required to treat them equally. When the youngest child reaches the age of majority, the trustee divides the trust into individual trusts for each child. A pot trust is not appropriate for families in which children are far apart in age, because the older children may have to wait many years before receiving their individual shares. The pot trust and individual trusts for the children are irrevocable. They are designed to contain assets that the settlor leaves to the beneficiary but that cannot be accessed directly by the beneficiary (or his or her spouse or creditors) until a specified time. The individual trusts usually provide an equal share of principal for each child but can be modified to provide unequal shares. If a beneficiary is no longer living, the gift will pass to the issue of such beneficiary. Some provisions in this trust instrument are favorable to corporate trustees, whether serving as the sole trustee or as a co-trustee with an individual trustee. In order to be valid under Georgia law, all trusts, including revocable living trusts, must be created in accordance with Ga. Code Ann. § 53-12-20. For an in-depth discussion of trusts, see Characteristics and Uses of Trusts (GA), Requirements and Restrictions on Trust Purposes and Administration (GA), and Revocation, Amendment, and Termination of Trusts (GA).