Transfer on Death Deed in Georgia: How It Works and When to Use One

Avoiding probate for real estate in Georgia has traditionally required either a living trust or joint ownership with right of survivorship. Georgia recently added a third option: the transfer on death deed. Authorized under O.C.G.A. § 44-17-1 et seq., the TOD deed allows property owners to name a beneficiary who will receive real estate automatically upon the owner's death — without probate, without a court proceeding, and without giving up any control during the owner's lifetime.

For the right situation, the TOD deed is one of the simplest and most direct probate-avoidance tools available for Georgia real estate. Understanding how it works, what it requires, and where its limitations lie helps property owners determine whether it belongs in their estate plan.

How a Transfer on Death Deed Works

A TOD deed — sometimes called a beneficiary deed — works by designating a grantee beneficiary who receives the property when the owner dies. Unlike a life estate deed, the beneficiary receives no present interest in the property while the owner is alive. The owner retains full control: they can sell the property, mortgage it, revoke the TOD deed, or change the designated beneficiary at any time without the beneficiary's knowledge or consent. The beneficiary's interest only comes into existence at the moment of the owner's death.

This is the defining advantage of the TOD deed over a life estate deed: full retained control without the complications that arise when a remainderman holds a present ownership interest during the owner's lifetime.

At the owner's death, the property transfers automatically by operation of law — not through probate, not through a will, and not through any court proceeding.

How to Create a Valid Georgia TOD Deed

Creating a TOD deed in Georgia requires following the statutory requirements under O.C.G.A. § 44-17-1 et seq. The deed must be in writing, identify the property using its legal description, name the beneficiary (called the designated grantee beneficiary), be signed by the property owner, and be notarized and properly witnessed. It must then be recorded with the Clerk of the Superior Court in the county where the property is located before the owner's death — an unrecorded TOD deed has no effect.

Working with an estate planning attorney when drafting the deed reduces the risk of errors in the legal description, ambiguous beneficiary designations, or language that might not hold up as intended.

What the Beneficiary Must Do After the Owner Dies

The transfer does not happen automatically without any action by the beneficiary. Under O.C.G.A. § 44-17-4, the designated beneficiary must file an affidavit with the county clerk's office confirming the owner's death and their identity as the designated beneficiary. This affidavit must be filed within nine months of the owner's death. If it is not filed within that window, the TOD deed does not effectively transfer title, and the property may instead pass through the estate and probate.

The Step-Up in Basis Advantage

An important tax benefit of the TOD deed is that the beneficiary receives a stepped-up income tax basis at the owner's death. Rather than inheriting the property at the owner's original purchase price — which would generate a large taxable capital gain on a sale — the beneficiary's basis resets to the fair market value of the property as of the date of death. For property that has appreciated significantly, this step-up can eliminate or substantially reduce capital gains taxes if the beneficiary sells the property after inheriting it.

What a TOD Deed Cannot Do

Several important limitations define where the TOD deed is and is not an appropriate planning tool.

A TOD deed provides no asset protection for the property during the owner's lifetime. If the owner faces creditor claims, lawsuits, or Medicaid recovery, the property can still be reached. In contrast to an irrevocable trust structure, the TOD deed does nothing to shield the property from the owner's liabilities.

A TOD deed is not a substitute for a comprehensive estate plan. It handles one specific asset — the named real property — but does nothing for the rest of the estate, for incapacity planning, for healthcare decisions, or for guardianship of minor children.

If the designated beneficiary predeceases the owner and no alternate beneficiary is named, the TOD deed fails and the property passes through the estate. Naming contingent beneficiaries addresses this risk.

The TOD deed is also not the right tool when the owner wants to control how the beneficiary uses or receives the property — for example, holding it in trust for a minor child or a beneficiary with special needs rather than giving it outright. A trust structure better serves those goals.

Comparing the TOD Deed to Other Probate-Avoidance Tools

Compared to a living trust, the TOD deed is simpler and less expensive to create. It requires no ongoing maintenance, no trustee, and no retitling of assets into a trust. For a property owner whose primary goal is simply ensuring a specific piece of real estate passes to a specific person without probate, the TOD deed accomplishes that cleanly.

A living trust, however, provides broader protection: it covers all assets placed in it, provides incapacity planning through the successor trustee, and can include detailed provisions governing how assets are managed and distributed. For estates with multiple assets, complex family circumstances, or significant planning goals beyond basic probate avoidance, a trust remains the more comprehensive tool.