Georgia’s New Transfer on Death Deed: An Option for Probate-Free Property Transfers

For years, Georgia property owners had few simple options for transferring real estate directly to a beneficiary without going through probate. While other states have long used Transfer on Death Deeds to streamline property transfers after death, Georgia only adopted this tool last summer.

What Is a Transfer on Death Deed?

A Transfer on Death Deed is a legal document that allows a property owner to name one or more beneficiaries to receive real estate directly upon their death—without the need for probate. In essence, it works like a beneficiary designation on a bank account or retirement plan. The property remains fully under the owner’s control during their lifetime, and upon their death (or the death of the last surviving owner, if the property is owned jointly with rights of survivorship), the property passes automatically to the named beneficiaries.

How Does It Work in Georgia?

As of July 1, 2024, Georgia residents can now execute a Transfer on Death Deed for real estate. To make it effective:

• The property owner signs and records the deed with the appropriate county records office during their lifetime.

• After the owner’s death, the beneficiaries must file an affidavit in Superior Court in the county where the property is located, within nine months of the date of death.

• Once these steps are completed, the property passes directly to the beneficiaries—avoiding probate court proceedings for that asset.

What Are the Benefits?

Transfer on Death Deeds offer three primary advantages:

✅ Probate avoidance: Transfers property outside the court process, saving time and potentially reducing legal fees.

✅ Flexibility: The owner can revoke the Transfer on Death Deed at any time during their lifetime or replace it with a new one if circumstances change.

✅ No lifetime interest: Unlike joint tenancy or life estate deeds, a Transfer on Death Deed doesn’t give the beneficiary any rights to the property until the owner dies—maintaining the owner’s full control during their lifetime.

What Are the Limitations?

While the Transfer on Death Deed sounds like an easy solution, it does have limitations—especially for families wanting to plan for complex situations:

⚠️ No contingency planning: If one of several named beneficiaries dies before the owner, the deed does not automatically pass that beneficiary’s share down to his or her children. Instead, the property would pass to the other named beneficiaries. There’s no way to build in a “per stirpes” (by branch) designation like you can in a will or trust.

⚠️ No special needs planning: If a beneficiary is disabled and receiving or eligible to receive government benefits, the property could jeopardize their eligibility since the deed cannot direct the property into a supplemental needs trust.

⚠️ No asset protection: If the beneficiary has creditors or divorces, the property might be at risk.

⚠️ No way to make special provisions for underage beneficiaries: The property passes outright to the beneficiary, which can be problematic if the beneficiary is too young to manage real estate responsibly.

Should You Use a Transfer on Death Deed?

While the Transfer on Death Deed offers a new option for probate-free property transfers in Georgia, it’s not the best fit for everyone. Attorney and Kimbrough Law owner Hailey Brock often recommends using a trust instead, as it offers far more flexibility to plan for contingencies like young beneficiaries, disabled beneficiaries, and beneficiaries with creditor problems. “Though it’s not my favorite property transfer technique, the Transfer on Death Deed does offer a new—and simpler—way to bypass probate,” she said. “For some property owners—especially those leaving property to a single adult beneficiary without special circumstances—a Transfer on Death Deed can be a simple, effective solution."

Could a Transfer on Death Deed help you achieve your goals for a probate-free property transfer? Kimbrough Law can help you find out. Call 706.850.6910 to schedule your consultation.