Did You Know Georgia's New Estate Planning Tool Just Got a Major Update? Transfer on Death (TOD) Deed — What's Changed as of July 1, 2026
Remember when we told you about Georgia's brand-new Transfer on Death (TOD) Deed back in 2024? Well, the legislature wasn't done with it. Georgia's lawmakers have gone back and given the TOD deed a significant work-up, and as of July 1, 2026, a new set of rules is officially in effect under Act 379 (formerly House Bill 413).
If you already have a TOD deed, or you've been considering one, this update is worth your attention. The process now has more moving parts, and getting them right matters more than ever.
What is a Transfer on Death Deed?
A Transfer on Death Deed lets a Georgia property owner name a beneficiary who will automatically inherit real estate when the owner passes away, without probate. To be valid, the deed has to be signed, witnessed, notarized, and recorded with the county while the owner is still alive.
A TOD deed does not give the beneficiary any rights to the property during the owner's lifetime. The owner keeps full control the whole time. You can sell the house, take out a mortgage, or change your mind entirely, all without asking your beneficiary's permission.
First, let’s discuss what hasn’t changed.
Conveniences of a TOD Deed
Avoiding Probate:
One of the most significant benefits of a TOD deed is the ability to avoid probate where real estate is the only estate asset. By using a TOD deed, the property transfers automatically to the beneficiary upon death (and complying with further requirements) without the delays associated with probate court.
Limited Creditor Avoidance:
Similar to jointly held property, transfers via a TOD deed may pass to the beneficiary even if the estate has creditors. Without a TOD deed, creditors may force the sale of a house before it is transferred to the beneficiary in order to get paid. However, the property still passes subject to the mortgage and is not shielded by Medicaid recovery efforts. This means that even if all requirements are met and the property successfully passes outside of probate, it still may not be shielded from all obligations.
Now, let's walk through what's new.
Disclaimers & Dangers of TOD Deeds: Updated
While the TOD deed might appear to be a straightforward solution, there are several reasons why Bequest Law believes it could be a bad idea for many of our clients.
The Affidavit Requirement
Previously, the TOD affidavit was required to be filed with the court within 9 months of the property owner’s death or the property reverts back to the estate thereby triggering probate and undermining the goals of the estate plan.
The new TOD deed law has lifted the 9-month filing requirement but imposed additional steps on the beneficiary to claim the property. Now, the beneficiary must sign and record an affidavit including the following information:
Their relationship to the deceased including whether they were married to the Record Owner at his or her time of death;
A legal description of the real estate, the deed book, and the page number of the recorded deed (as provided in the recorded copy of the TOD Deed);
The Record Owner’s death certificate attached as an Exhibit; and,
If the Record Owner’s death occurred on or after July 1, 2026, a real estate transfer tax declaration form (PT-61) attached as an Exhibit.
The Interim Period
Additionally, with the removal of the 9-month filing requirement, what happens between the Owner’s death and the property transfer? Although a TOD Deed is designed to avoid probate for the real estate itself, there is still a period between the property owner's death and the beneficiary's acceptance of the property. During that time, ongoing expenses such as property taxes, homeowners insurance, mortgage payments, utilities, HOA dues, and necessary maintenance continue to accrue.
If a probate estate is opened, Georgia's updated TOD deed law requires the personal representative to notify the designated beneficiary of the TOD deed and authorizes the personal representative to take reasonable steps to preserve the property during the administration of the estate, including paying necessary expenses with estate assets when appropriate. However, if no estate is opened, as is the goal with a TOD deed, there may be no personal representative to perform these functions. Thus, the question remains: who is responsible for these expenses?
Revocability and Potential for Conflict:
The TOD deed is revocable at any time by the property owner. Previously, revoking a TOD deed required the same execution formalities as creating one. The updated law reduces the witness requirement for a revocation from two witnesses to one, making it easier for property owners to change their plans if circumstances change.
Importantly however, if the real property is owned by two people, i.e., a couple, either party can revoke or change the deed without the other's consent. This also means that if one spouse dies, the surviving spouse can entirely revoke the TOD deed. Therefore, for couples especially, this revocability component of the TOD deed has the potential to create significant uncertainty and legal battles over the true intentions of the deceased.
Should You Consider a TOD Deed in Your Estate Plan?
While the Transfer on Death Deed in Georgia appears to offer a simple way to pass on real estate without probate, it rather carries significant risks that can complicate your estate, leading to unintended and costly consequences. Given these risks, a TOD deed may not be the best choice for your Georgia estate plan. Especially for those with complex family dynamics, significant assets, or concerns about timing and revocability, other estate planning tools such as revocable trusts or more comprehensive wills can provide better protection and clarity.
Before opting for a TOD deed, it is crucial to understand the implications and to consult with your attorney to determine the best fit for your estate. To schedule a free consultation with a Bequest attorney you can submit an inquiry form on the main page of our website (https://www.bequest.law), give us a call at 404.500.7531, or email hello@bequest.law.