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Transfer-on-Death Deeds in Georgia: (Not Quite) New and (Maybe?) Improved

by Allison L. Byrd and Richard M. Morgan, Morgan & DiSalvo, P.C.

On April 22, 2026, Georgia Governor Brian P. Kemp signed into law HB 413, which includes various amendments of existing laws relating to transfer-on-death real estate deeds.

INTRODUCTION:

Effective July 1, 2024, the Governor signed new laws allowing transfer-on-death deeds for real estate located in Georgia. A “transfer-on-death” or “TOD” deed allows a record owner of real estate to file a deed that names a designated grantee beneficiary (we’ll refer to such a beneficiary as a “DGB” for purposes of this article) to become the owner of the deeded property after the death of that record owner, as long as there are no other surviving record owners with a right of survivorship. In other jurisdictions that have similar laws, such deeds are sometimes called “lady bird” deeds. Our previous newsletter on this topic, published shortly after those new laws went into effect, can be found here: NEWS ALERT: New Law in Georgia Allows Transfer-on-Death Deeds, Effective July 1, 2024.

The 2024 legislation contained some ambiguities and left some procedural questions unanswered. For instance, if the record owner died on or after July 1, 2024, the new laws required the DGB to file an affidavit containing certain information, along with a copy of the record owner’s death certificate, within nine months of the record owner’s death in order to “accept” the property, which implied that, until then, the property would be owned by the estate of the deceased record owner. However, this language conflicted with other language in the law that said that the property transferred to the DGB “upon the death of the record owner,” and that the property would “revert” to the estate on that nine-month affidavit filing deadline if the DGB failed to file a sufficient affidavit by that deadline. This language indicated that the property transferred out of the record owner’s estate automatically at the record owner’s death, since property can’t “revert” to an estate if it’s already in the estate.

On the other hand, if the record owner’s death occurred before July 1, 2024, the nine-month deadline to record the required affidavit did not apply, leaving uncertainty as to whether, or when, an affidavit must be filed by the DGB in order to “accept” the transfer, or if (and, if so, when) the property would ever revert to the record owner’s estate, since there was no deadline to trigger reversion if missed.

There was also no requirement in the 2024 law that the record owner obtain the signature, consent or agreement of the DGB to name the DBG on the TOD deed (this is still the case under the new law), and there was no requirement that the Personal Representative (such as an Executor or Administrator) of the record owner’s estate give the DGB any notice of the deed (now there is such a requirement). If a DGB was never told of the deed and never otherwise learned of it, that DGB could easily miss the 9-month deadline to file the required affidavit. Even a DGB who somehow knew of a relevant TOD deed and was diligent in trying to meet the 9-month affidavit filing deadline and documentation requirements might be stymied by an inability to get a copy of the record owner’s death certificate under Georgia law at that time, unless that DGB happened to be a close relative of the record owner, such as a spouse, descendant, or sibling. The new law makes it easier for a DGB to obtain a copy of the record owner’s death certificate.

To address some of these issues, and after much legal maneuvering, the Georgia legislature passed HB 413, which became law and took effect on April 22, 2026, when it was signed by Governor Kemp. Following is an Executive Summary of the most significant features of the new law, which, as will become apparent, is improved in some ways, but is not quite ready for prime time in other respects. This author sees a technical corrections bill needed in the near future if TOD-deeded properties are to remain marketable.

EXECUTIVE SUMMARY:

  1. Expanded Access to Vital Records for Grantee Beneficiaries
    • Under the new law, a DGB named in a TOD deed can directly request, and is entitled to receive, from a registrar or custodian in possession of vital records, a copy of the record owner’s death certificate, since obtaining that document and recording it with the required DGB affidavit is necessary for that DGB to accept the property interest.[1]
  2. Key Modifications to Transfer-on-Death Deeds
    • Perhaps most significantly, the new law omits the language of the previous law that said that a TOD deed transfers ownership of the record owner’s interest in the property “at the record owner’s death,”[2] and instead treats that property as part of the record owner’s estate, unless and until the DGB accepts the property by executing and recording the required affidavit,[3] discussed in more detail below, under “Procedures for Accepting Property.”
    • The new law clarifies that only the record owner (not an agent or attorney-in-fact under a Power of Attorney) can execute or revoke a TOD deed,[4] and that such deeds do not require consideration.[5]
    • The law also allows for a record owner to name alternate DGBs, helping to ensure that the property passes smoothly if the primary beneficiary predeceases the record owner.[6]
    • The law also clarifies that a DGB can be an individual, a trustee,[7] or a legal entity.[8]
    • The new law prohibits using a TOD deed to create express trusts or beneficial interests in real property for commercial purposes.[9]
  3. New Duty on Personal Representatives of Estates to Notify DGBs
    • Unlike the previous TOD laws, the new law requires a Personal Representative of the estate of a deceased record owner to provide each DGB on a TOD deed that was recorded and not revoked during the record owner’s lifetime with notice of the TOD deed.[10] However, if there is no court-appointed Personal Representative, then there appears to be no one to whom this duty to notify the DGB would apply.
    • It’s important to note that this is the only legal requirement to provide notice to a DGB. There is still no requirement that a record owner notify a DGB or get the DGB’s signature, consent, or agreement to record a TOD deed during the record owner’s life,[11] and there is no mechanism to notify a DGB of a TOD deed if no formal probate estate is opened and therefore no Personal Representative of the estate appointed.
  4. Procedures for Accepting Property
    • In order to accept the property interest described in a TOD deed, the DGB must execute[12] and record[13] an affidavit that (1) verifies the record owner’s death, (2) states whether the record owner and the DGB were married at the time of the record owner’s death, (3) includes the deed book and page number of the recorded TOD deed, and (4) includes a legal description of the real estate that is the subject of the TOD deed.[14] The DGB must also attach a copy of the record owner’s death certificate to the affidavit, and record the affidavit, a real estate transfer tax declaration form, and “related documents” with the office of the clerk of superior court of the county where the property is located[15] in order to complete the DGB’s acceptance of the property, at which point the property is no longer part of the record owner’s estate. NOTE: The recordation requirement for a DGB affidavit is actually drafted so as to apply only in instances when the record owner dies on or after July 1, 2026, which may be a technical flaw in the new law.[16]
    • In general, each DGB must execute and record a separate affidavit,[17] along with the required documents, in order to accept the property interest being conveyed to that DGB on the TOD deed. However, there is an exception that states that a DGB affidavit recorded before July 1, 2026, in which one or more of the named DGBs of a TOD deed explicitly accepts the interests being conveyed by the TOD deed on behalf of all or some of the DGBs named in the affidavit will be effective to accept such interests, as long as that affidavit is executed by at least one of the DGBs accepting such interests.[18]
    • The new law also provides that if a DGB is a ward or minor, then a legal guardian or legal conservator may accept an interest in real estate interest that passes to that minor or ward pursuant to a TOD deed.[19]
    • Another significant change is that the new law no longer provides for any deadline for the filing of a DGB affidavit.[20]
    • It follows that if a beneficiary fails to record the required affidavit, the property could remain part of the deceased record owner’s estate indefinitely, at least in the case of a solvent estate. New rules were enacted regarding a Personal Representative’s ability to sell the property described on a TOD deed if that property is part if an insolvent estate and is subject to imminent foreclosure, destruction, or condemnation. However, we are left with open questions as to what happens in a solvent estate when the DGB fails to accept or disclaim the property within a reasonable period of time. (See Section 6, below.)
  5. Priority and Rights of Grantee Beneficiaries
    • In general, a TOD deed takes precedence and priority over unsecured debts of the estate of the record owner and over claims by a surviving spouse of the record owner who married the record owner after the TOD deed was executed.[21]However, a DGB will take the property conveyed in a TOD deed subject to the claims of a surviving spouse of the record owner who married the record owner before the TOD deed was executed, and subject to “all recorded conveyances, assignments, contracts, mortgages, liens, and security pledges made by the record owner or to which the record owner was subject during the lifetime of such record owner, including, but not limited to, any recorded executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, or to any interest conveyed by the record owner that is less than all of the record owner’s interest in the property.”[22]
    • The law also details how lapsed interests (such as occur when a DGB dies before the record owner, or after the record owner’s death but before completing the acceptance process) are handled, ensuring that remaining beneficiaries receive the interest.[23] For instance, if one of several DGBs on a TOD deed dies before the record owner, then any interest that would have been conveyed to the deceased DGB will lapse, leaving that interest to be split among any other DGBs named in the TOD deed who survive the record owner.
  6. Rights of Personal Representatives
    • If the estate holding the TOD Deed Property is SOLVENT ===> then the Personal Representative is “authorized,” though apparently not required, to incur expenses for mortgage payments, property taxes, and repairs that, if not done, place the property in imminent danger of being destroyed, until the interest in such property is accepted by the DGB.[24] The new laws also entitle the estate to repayment of such expenses and to a priority special lien against the property for any amount not repaid within one year after the DGB’s acceptance. [25] If the special lien has not been paid in full at the expiration of that one-year period, then the estate has 30 days to file a claim of lien in the office of the clerk of superior court of the county where the property is located.[26] It also specifies the notice requirements applicable to the estate in this regard,[27]and gives the estate the right to foreclose on the lien in the same manner as if the lien were a mechanic’s lien.[28] However, if the DGB never accepts the property, then the estate has no such lien rights, since the estate is the owner of the property after the record owner’s death in the absence of the DGB’s acceptance.
    • If the estate holding the TOD Deed Property is INSOLVENT ===> then the Personal Representative of that estate is “authorized to record an affidavit of notice in the office of the clerk of superior court of the county where the property is located to which the notice of imminent foreclosure, condemnation, or destruction shall be attached.”[29] If no DGB has completed the acceptance requirements at that point, the Personal Representative can sell the property to pay the debts of the estate, with any remaining proceeds belonging to the estate.[30]

TECHNICAL ISSUES, AMBIGUITIES, AND OTHER PROBLEMS:

  1. Potentially Burdensome Fiduciary Duty to Maintain Property Subject to a TOD Deed While Estate is Solvent, and Major Marketability Issues for TOD-deeded Properties

A major question that seems to be unanswered by the new law is whether an Executor or other Personal Representative of a solvent estate that holds property that is the subject of a TOD deed has a fiduciary obligation to keep the estate open and to maintain that real property indefinitely, or even to maximize its profitability, for as long as it takes for any DGBs either to complete the acceptance process or to sign disclaimers of any legal interest in the property, or, in the absence of any action on the part of the DGB(s), until the estate becomes insolvent. The amended statute says that the Personal Representative is “authorized” to incur, on behalf of a solvent estate, expenses associated with mortgage payments, property taxes, and repairs, which is not the same as being required to pay such expenses. However, a Personal Representative also has a fiduciary responsibility to preserve the estate assets, as well as a fiduciary duty to distribute the net assets of the estate to the heirs of an intestate estate or to the beneficiaries of a testate estate. In light of these other responsibilities, the Personal Representative may actually be required to expend estate assets, when the estate is solvent, in order to maintain estate property that is the subject of a TOD deed. Many estates that own real estate are not large enough or profitable enough to be self-sustaining for long, and would become insolvent within a few years, thus giving the Personal Representative the right to sell the property to pay debts of the estate. But for larger estates that are not destined to become insolvent any time soon, a Personal Representative could be facing a potentially burdensome and long-lasting fiduciary obligation to maintain property subject to a TOD deed unless and until the DGB or DGBs accept it.

While there appears to be no restriction against a Personal Representative’s distributing the real estate that is the subject of a TOD deed to the heirs or residuary beneficiaries of the estate, as applicable, subject to the DGB’s rights (just as the Personal Representative might distribute a parcel of real estate subject to the rights of an existing mortgagee), such a cloud on the property title will cause major marketability problems for the heirs or beneficiaries who receive that property through an estate distribution. It is highly unlikely that any estate heir or beneficiary  receiving TOD deed property subject to a DGB’s interest will be able to get a loan on that property or sell that property.

For these reasons, it would be beneficial to have a statutory limitation period for a DGB’s acceptance of TOD-deeded property that begins running upon the receipt of notification by the DGB, which could including notification by publication, if a DGB cannot, with due diligence, be located and notified directly. Having such a time limit, running from  the date of notification of the DGB, would mean that a DGB’s right to come forward and accept TOD property could eventually be foreclosed by law if that DGB does not take any action to accept or disclaim the property, thus allowing the Personal Representative to sell or distribute that property free and clear of the DGB’s claim.

  1. There is No Required Notice to a DGB if No Personal Representative is Appointed by the Appropriate Probate Court
Another issue that remains unsolved occurs when there is no formal probate estate opened. Under that circumstance, there is no Personal Representative appointed by the appropriate probate court, and there may be no one else with the legal duty to notify the DGB of the TOD deed and of the record owner’s death. If a DGB does not already have that information or is able to find out in some way, and if no formal probate estate is opened, then the only way a DGB might be notified is if there is an attempted bank foreclosure or tax sale of the property. In that case, there may be other laws that require notice be given to anyone with an interest in the property before such foreclosure or tax sale can be completed. Because it is not guaranteed that an otherwise uninformed DGB will receive notice of a TOD deed’s existence or of the record owner’s death, anyone intending to use a TOD deed to pass real estate to another party at death will need to make arrangements for the DGB to be notified upon the record owner’s death.
  1. Ambiguity as to the Ability of a DGB to Avoid an Estate’s Unsecured Creditors
Whether a TOD deed takes precedence and priority over all unsecured debts of the record owner’s estate filed upon the death of the record owner turns on the meaning of the word “unredeemed” in O.C.G.A. 44-17-5(a) (“A transfer-on-death deed takes precedence and priority over all unsecured debts of the record owner’s estate filed upon the death of the record owner, unless the property is unredeemed.”) It is not clear to this author whether “unredeemed” refers to the TOD deed property’s being subject to sale or foreclosure due to unpaid debt on that property, or whether it refers to the DGB’s lack of acceptance of the property as required under the other provisions of the amended TOD deed laws. The latter interpretation makes more sense, but the statutory language could use some refining in a future technical corrections bill for the sake of clarity.
  1. Title Insurance Issues
The way in which Georgia TOD deeds will affect title insurance policies is still an open question. It remains to be seen if title insurance companies will consider their policies to terminate upon the passing of TOD deed property to the DGB, or if they will consider the record owner’s policy to extend coverage to the DGB. Expect to see title insurance companies addressing this question in their policy language going forward.
  1. Property & Casualty / Homeowner’s Insurance Issues
An immediate question arises as to the continuation or the ability to obtain new Property & Casualty (P&C) / homeowner’s insurance on real property as of the owner’s date of death. Technically, GA law transfers real property subject to a TOD Deed to the owner’s probate estate until it is either properly accepted by the DGB, passes pursuant to a claim for Year’s Support (or other enforceable contract obligations), or in the case of an insolvent estate, it is foreclosed upon or sold to pay debts. You can not be sure the existing P&C / homeowner’s insurance continues thereafter or if it terminates immediately or within a short period of time (especially if the property is vacant). This insurance issue arises immediately upon the owner’s death, and before sufficient time exists to appoint a Personal Representative (Executor or Administrator). During the period no Personal Representative has been appointed (and it may be that a Personal Representative is never appointed), who has the ability to purchase such insurance to protect the property from any post-death losses, such as arson/fires, theft/vandalism, or someone getting injured on the property? If and when a Personal Representative is appointed, is this Personal Representative required to utilize estate assets to continue or purchase new P&C / homeowner’s insurance to protect the property? Expending estate assets for this purpose is authorized by the GA TOD Deed statute, but it is not mandatory to do so. However, it is unclear if the Personal Representative is subject to one or more fiduciary duties that would legally require the Personal Representative to expend estate assets to protect this TOD Deed property. The Personal Representative has a duty to protect estate assets for the benefit of the estate’s creditors and beneficiaries, but is a DGB technically either of these? In short, a lot of unknowns exist under GA law as to this insurance issue, and it may end up being a very important and costly one in some cases.
  1. Technical Issue Regarding a Record Owner’s Death Occurring at Any Time On or During April 22, 2026 to June 30, 2026
The section of the new law that requires the recordation of the DGB’s executed affidavit in order to complete the DGB’s acceptance of the property described in the TOD deed carves out an exception to that recording requirement when the record owner’s death occurs before July 1, 2026, though the new law does still require that the DGB execute an affidavit containing the required information and attach a copy of the record owner’s death certificate to that affidavit. This would appear to be a technical flaw in the new law, which went into effect, per its own language, when the Governor approved it on April 22, 2026, thereby creating a gap of time (from and including April 22, 2026, to and including June 30, 2026) during which a record owner could die and the recordation requirement for the DGB’s acceptance affidavit would not apply, which is likely not what the legislature intended.

CONCLUSION:

Given all of the issues discussed above, and any others that may not be covered in this newsletter, should you consider using TOD deeds to pass real estate interests at your death? As mentioned in our earlier newsletter on TOD deeds, they are often an unreliable way to convey an interest in real estate at the record owner’s death, and the new laws do not change this fact. TOD deeds are not a substitute for a comprehensive estate plan. TOD deeds may seem simple and convenient on the surface, but scratch the surface, and the many potential ways in which they could fail is evident:

  • A TOD deed is limited to transferring only the property it conveys.
  • Due to ambiguities in the new laws, there are open questions about how TOD deeds affect certain creditors’ and beneficiaries’ interests, as well as title insurance and P&C / homeowner’s insurance.
  • The new laws create a duty on a Personal Representative to notify a DGB on a TOD deed, but if there is no formal probate estate opened and no Personal Representative appointed, then there may be no one tasked with giving notice of a TOD deed to the DGB.
  • Perhaps most importantly, an unaccepted TOD deed may place a burden on the Personal Representative to maintain the property until the estate becomes insolvent. If the Personal Representative goes ahead and distributes the probate property, including the property subject to a TOD deed, to the heirs of an intestate estate or to the beneficiaries of a testate estate, without waiting for the estate to become insolvent, then the property described in that TOD deed will pass to those heirs or beneficiaries subject to the DGB’s claim, rendering the property virtually unmarketable, since it is highly unlikely that an heir or beneficiary inheriting the property through the probate process would be able to get a loan on the property or sell it to a third party.

The more reliable, flexible, and comprehensive planning option for those wishing to avoid probate is to use a fully-funded Revocable Living Trust (“RLT”). A fully funded RLT allows the trust’s creator (or “Trustor”) to maintain full power over the trust assets while that person is living, allows a successor Trustee to step in and manage the trust property without court intervention if the Trustor becomes incapacitated before the Trustor’s death, and provides for the disposition of all the property that the trust owns or receives at the Trustor’s death, including but not limited to real estate interests. In most cases, an RLT is a far more powerful and flexible tool than a TOD deed for conveying property at your death.

If you do choose to use a TOD deed to convey real estate, we recommend consulting a real estate attorney who can, if needed, conduct a full title search, address and correct any existing title issues, prepare and file the TOD deed, advise you in more detail regarding potential title insurance issues, and help ensure that all the filing requirements are met. We also recommend either notifying your DGBs or making reliable arrangements for their notification after your death. Then hope that everything works as intended when the time comes!

The attorneys at Morgan & DiSalvo are here to help with your estate planning needs. Call us at (678) 720-0750 to schedule a complimentary consultation.

[1]O.C.G.A. §31-10-26(a)(1)(A).
[2] This quoted language appeared in the original version of O.C.G.A. §44-17-2(a)(2), but is not present in the April 22, 2026 amendment.
[3] O.C.G.A. § 44-17-2(c)(1).
[4] O.C.G.A. § 44-17-2(a)(3).
[5] O.C.G.A. § 44-17-2(a)(4).
[6] O.C.G.A. § 44-17-2(a)(5)(A).
[7] O.C.G.A. § 44-17-2(a)(5)(B).
[8] O.C.G.A. § 44-17-2(c)(2).
[9] O.C.G.A. § 44-17-2(a)(6).
[10] O.C.G.A. § 44-17-2(g)(1).
[11] O.C.G.A. § 44-17-2(b).
[12] O.C.G.A. § 44-17-2(c)(1)(a).
[13] O.C.G.A. § 44-17-2(c)(1)(b).
[14] O.C.G.A. § 44-17-2(d)(1) through (d)(4).
[15] O.C.G.A. § 44-17-2(e).
[16] O.C.G.A. § 44-17-2(e).
[17] O.C.G.A. § 44-17-2(c)(3).
[18] O.C.G.A. § 44-17-2(f). Note that subsection (f) begins: “Notwithstanding the provisions of paragraph (1) of subsection (c) of this Code section to the contrary, . . . .” However, subsection (f) appears to be an exception to subsection (c)(3), not subsection (c)(1), so this may be a technical error in (f).
[19] O.C.G.A. § 44-17-2(c)(2).
[20] The previous version of O.C.G.A. § 44-17-2(a)(2) stated that a TOD deed “shall transfer ownership of such interest upon the death of the record owner,” but this language has been omitted from the new code section. Also, O.C.G.A. § 44-17-2(c)(1) specifies that a TOD deed transfers ownership of the record owner’s interest in real estate to each DGB upon the DGB’s completion of both the execution of the required affidavit, as described in subsection (d), and the recordation of that affidavit, as described in subsection (e).
[21] O.C.G.A. § 44-17-5(a).
[22] O.C.G.A. § 44-17-5(a).
[23] O.C.G.A. § 44-17-5(b).
[24] O.C.G.A. § 44-17-2(g)(2)(A).
[25] O.C.G.A. § 44-17-2(g)(2)(A).
[26] O.C.G.A. § 44-17-2(g)(2)(B).
[27] O.C.G.A. § 44-17-2(g)(2)(C).
[28] O.C.G.A. § 44-17-2(g)(2)(D).
[29] O.C.G.A. § 44-17-2(g)(3).
[30] O.C.G.A. § 44-17-2(g)(3).

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