Non-Probate Transfers in Georgia

This is general information, not legal advice. A Georgia probate attorney can help with your specific situation.

Probate takes time, costs money, and creates a public record. Many Georgia families can avoid it for a significant portion — or even all — of their estate by using non-probate transfer tools during their lifetime. These tools pass assets directly to named recipients at death, bypassing the probate court entirely.

Why Non-Probate Transfers Matter

When assets pass outside probate, the transfer is typically faster (weeks rather than months), private (no public court filing), and less expensive (no attorney or court fees for that asset). For most families, the goal of estate planning is to minimize the assets that have to go through probate — not to make the process smoother, but to avoid it altogether where possible.

Joint Tenancy With Right of Survivorship

When two or more people own property together, the form of ownership determines what happens when one owner dies. Georgia’s default rule is important to understand: O.C.G.A. § 44-6-190 presumes a tenancy in common when property is conveyed to multiple people without survivorship language. Under a tenancy in common, a deceased co-owner’s share does not pass automatically to the survivors — it goes through the deceased owner’s estate and is subject to probate.

To create survivorship rights in Georgia, the deed or other instrument must expressly state that the owners hold the property as joint tenants with right of survivorship, or use equivalent language. This is different from many other states where joint tenancy is available by default. If your deed says only “to Alice and Bob,” Georgia treats that as a tenancy in common. If you want Alice to inherit Bob’s share automatically at his death, the deed must say so explicitly.

When properly created, joint tenancy with right of survivorship works cleanly: at the first co-owner’s death, the survivor records a death certificate and takes full ownership without any probate proceeding.

Transfer-on-Death Deeds (New as of July 1, 2024)

Georgia added a powerful new tool to its estate planning toolkit effective July 1, 2024: the transfer-on-death deed, authorized by O.C.G.A. § 44-17-2. A TOD deed allows a property owner to record a deed that names one or more beneficiaries who will automatically receive the real estate at the owner’s death — no probate required.

Key features of Georgia’s TOD deed:

• The owner retains full control of the property during their lifetime; the beneficiary has no rights until the owner dies
• The owner can revoke or change the TOD deed at any time before death
• At the owner’s death, the named beneficiary must record an acceptance affidavit within 9 months of the owner’s death; if they fail to do so, the interest reverts to the estate and goes through probate
• The TOD deed does not affect the owner’s ability to sell or mortgage the property during their lifetime

This is a significant development for Georgia families who want to keep real property out of probate without using a living trust or adding a co-owner.

Beneficiary Designations on Financial Accounts

Life insurance policies, retirement accounts (IRAs, 401(k)s, 403(b)s), and transfer-on-death (TOD) securities accounts all allow the account owner to name a beneficiary. At the owner’s death, the asset passes directly to that named beneficiary — completely outside the probate estate, regardless of what the will says.

This is one of the most important and overlooked features of financial planning. A will cannot override a beneficiary designation. If your IRA names your ex-spouse as beneficiary, your ex-spouse inherits it even if your will leaves everything to your current spouse.

Common mistakes with beneficiary designations:

• Naming the estate as beneficiary (which sends the asset through probate and may create adverse tax consequences for retirement accounts)
• Failing to name a contingent (backup) beneficiary, so the asset falls into the estate if the primary beneficiary predeceases the owner
• Not updating designations after major life events — marriage, divorce, birth of children, death of a named beneficiary

Funded Revocable Trusts

A revocable living trust is another mechanism for avoiding probate. Assets titled in the name of the trust — or with the trust named as beneficiary — pass according to the trust’s terms at the grantor’s death without any court involvement. However, the trust must be properly funded during the grantor’s lifetime; an unfunded trust does nothing to avoid probate.

Keeping Designations Current

The single most common non-probate transfer mistake is failing to update documents after life changes. A divorce, remarriage, new child, or death in the family can leave designations pointing to the wrong people. Reviewing beneficiary designations and jointly-held title every few years — or after any major life event — is a basic but important step in keeping an estate plan functional.