Transfer on Death Deed vs. Living Trust: Which Should You Choose?

Georgia introduced Transfer on Death (TOD) deeds in 2024 and updated the law in 2026, offering a simple way to transfer property upon death without probate. However, TOD deeds only cover single properties, offer no protection during incapacity, and pass assets outright without guardrails against creditors or divorces. In contrast, a living trust provides comprehensive coverage for your entire estate, protects assets if you become incapacitated, and allows you to set custom rules for how beneficiaries inherit. While a TOD deed may suffice for single individuals with very simple estates and adult heirs, a living trust is usually the better choice for families, business owners, and those with multiple assets.

In 2024, Georgia created the Transfer on Death Deed, and in April 2026 they updated the law surrounding it. While having this type of deed available in Georgia is wonderful, it’s not always the right choice for every estate or property. Today we’re going to take a close look at this type of deed and why living trusts are usually a better option. We’ll look at the downside of a transfer on death deed, we’ll discuss when it’s enough, and how trusts are the preferred option for most people.

What is a transfer on death deed in Georgia?

A transfer on death deed is a legal mechanism for transferring property upon your death. While many states have TOD deeds, this type of deed is relatively new in Georgia. Georgia began allowing transfer on death deeds in July 2024, under O.C.G.A. § 44-17-1 et seq.

A transfer on death deed in some ways works similarly to a beneficiary designation on your bank account. You keep full ownership of the property while you’re alive, but upon your death the property can pass to whomever you named as the transfer on death recipient on the deed, once that person completes the acceptance process.

Where it differs from a beneficiary designation is in how it is implemented and how the beneficiary collects the property. To utilize a Transfer on Death deed, you would need to have one drafted with the appropriate language within it, sign the deed with a witness and a notary, and then it must be recorded with the county before you die. If it is not recorded prior to your death, the deed on file with the county stands. Upon your death, if you do have a properly recorded TOD deed, the beneficiary must record an affidavit, along with a copy of the death certificate, to complete the transfer. Until they do, the property is treated as part of your estate.

What changed with Georgia’s TOD deed law in 2026 (HB 413)?

The state of Georgia has already issued changes to this brand new law which began in 2024. In April of 2026 they updated the law to:

• Clarify who can create a transfer on death deed – only the record owner of the property, who must have the legal capacity to enter into a contract. An agent under a power of attorney cannot sign one.
• Provide a process on how the beneficiary accepts property– the beneficiary must file an affidavit to accept the property. No other beneficiary can accept on their behalf, although a guardian or conservator can accept for a minor or ward.
• Remove the prior 9 month deadline to file the acceptance affidavit – while this may be a good thing, this deadline removal can leave estates without means for resolution since only the beneficiary (or their guardian or conservator) can file the acceptance, and until they do, the property stays in the estate.
• Allow for contingent beneficiaries to be named, and also allow for a trust to be named as beneficiary – the deed cannot be the mechanism to establish a trust, though.
• Provide rules for what happens if a beneficiary dies before acceptance.

The updates do provide more clarity for how this new law and deed can function on behalf of estates, but it is important to note that this law is very new, and the fact that it has already been updated means that the legislature is still working out issues with it. There are still reasons to avoid this type of estate planning tool and opt for the use of a trust instead.

What are the downsides of a transfer on death deed?

It’s important to understand that a transfer on death deed is a legal device that transfers your real estate from you to your beneficiary only after your death. It doesn’t do anything while you are alive. For many reasons this is a good thing. But this means it doesn’t provide any legal benefits if you’re incapacitated.

I once worked with a family who shared a story about a friend who utilized a trust instead of a TOD deed. That friend was hospitalized and unable to make any decisions for several months. Because they utilized a trust, their successor trustee was able to step in and act on their behalf to complete some real estate transactions that were already in process prior to their sudden hospitalization. Everything moved forward and when they regained capacity they didn’t have a mess on their hands. They were able to focus on healing. That person’s friend came to me to create a trust-based plan for scenarios just like this one.

Another issue with TODs is that you can leave a house directly to a minor child. What most people don’t realize is that when this happens the court has to get involved to appoint a conservator. Once the minor child turns 18 the property passes to them outright. There are no guardrails in place. They are now 18 year old property owners.

When you utilize a trust instead you get to bypass the conservatorship, name a trustee for your minor child’s Trust instead, and put rules in place for when and how the child receives their inheritance. 

When you hold a TOD deed jointly with a spouse, the deed may not work the way couples expect. For instance, if you hold the home jointly with right of survivorship with your spouse, the transfer on death portions of the deed only take effect at the last owner’s death.

But if you instead have a joint living trust as a married couple that one living trust covers both spouses. 

A TOD deed covers just one property. It doesn’t take your whole estate into consideration. So, while you may think a TOD deed on your house can help you avoid probate, it may not. Any assets with no named beneficiary can still go through probate. Properly funded living trusts hold everything in one plan, and avoid probate.

Another thing to understand as it pertains to a transfer on death deed is that your beneficiary family has to finish the paperwork. In many cases the beneficiary may not know the deed even exists, but they are required to file paperwork to resolve the deed. There is also no longer any deadline for this paperwork, which means the property can sit in your estate indefinitely if the beneficiary never files. If you use a trust instead the trustee already has authority to act. No court filings are required.

If your only TOD beneficiary dies before you, or dies before completing the acceptance paperwork, unless you name a successor beneficiary within the TOD deed, the TOD portion of the deed is revoked. Meaning, the property does not pass to anyone else without probate. When you utilize a trust you provide successor beneficiaries who can inherit if a beneficiary dies before you, and the trust includes a plan for what happens if every named beneficiary predeceases you. No probate needed.

A TOD deed hands over the property outright. There are no guardrails in place and once transferred, the property is exposed to the beneficiary’s creditors. Furthermore there are no provisions as to what happens to the house should your beneficiary go through a divorce. A living trust can protect your assets and beneficiaries after you’re gone by allowing you to put guardrails in place for the assets and beneficiaries.

A TOD deed can also make the property harder to sell. Georgia’s TOD law is new, and title insurance companies are still deciding how they will handle these deeds. Before insuring a sale by the beneficiary, a title company may require the acceptance affidavit to be recorded and may want time to pass after the owner’s death to make sure no other claims surface. That can leave your family holding the property, and paying its mortgage, taxes, and insurance, longer than expected. When a house is held in a living trust, the successor trustee can sell it under the trust’s terms, which title companies are used to insuring.

Transfer on death deed vs. living trust

When is a TOD deed enough?

A TOD deed may be enough for a single or widowed owner with one Georgia property. But only if that individual has living adult beneficiaries, and a will and power of attorney already in place. Essentially, if your estate is very simple and straightforward, a TOD deed may be the right tool for you.

Anyone with a spouse, kids, rental or investment properties, or a blended family should talk to an attorney about a living trust. 

FAQ

Does Georgia allow transfer on death deeds? 

Yes. The law is relatively new and is ever changing. But Georgia has adopted a law allowing transfer on death deeds. 

Does a transfer on death deed avoid probate in Georgia? 

Only for the property the deed is for. And it works best when the beneficiary is a living adult. If the only beneficiary dies before the property owner, or before accepting the property, and no alternate is named, the property will pass through probate. If the deed names a minor, a conservatorship for that minor will have to be established until the child reaches age 18 and they receive the property outright.

Can a transfer on death deed be contested in Georgia? 

Yes. The deed can also fail if the proper steps are not followed. In most cases a living trust is a more effective way to accomplish similar goals, and is less susceptible to contests.

Do you pay inheritance tax on a transfer on death deed in Georgia? 

Georgia does not have an estate or inheritance tax. So, no state level tax is assessed. Federal estate taxes may apply. Additionally income tax may apply. Check with your CPA for tax advice and tax planning.

Can a TOD deed and a living trust work together? 

Yes. In some cases this may be the right choice. But in most cases it is a better choice to allow the property to pass through the trust rather than with a TOD deed. This is why it’s important to work closely with an estate planning attorney. We can help guide you through myriad decisions like this one.

Can I name my minor child on a TOD deed? 

Yes. But you shouldn’t. If the child is a minor at the time of your death this will automatically trigger court involvement to name a conservator. This is a painful process that takes so much time. It is better to hold the property in trust for the child to benefit from. You can put rules in place for if and when the property should pass directly to the child, once they reach adulthood.

Choosing the Right Path for Your Legacy

While Georgia’s Transfer on Death Deed offers a quick and low-cost mechanism to bypass probate for real estate, it lacks the flexibility, incapacity protections, and guardrails that families need. A properly structured Living Trust provides protection for your entire estate. 

Take the Next Step Toward Securing Your Future

Choosing between a Will, a Transfer on Death Deed, or a Living Trust depends on your family dynamics, assets, and long-term goals. Download your free Will or Trust Guide today!

If you are ready to create a customized estate plan that protects what matters most, contact Siedentopf Law today to schedule your strategy session..

Author Bio

Sarah Siedentopf, Esq. is an estate planning and probate attorney based in Atlanta, Georgia, and the founder of Siedentopf Law. She specializes in helping individuals, families, and business owners navigate trusts, wills, powers of attorney, end-of-life planning, and probate administration. 

Sarah holds a Juris Doctor from the University of Tennessee College of Law and is licensed to practice in Georgia. Known for making legal concepts accessible and easy to understand, she focuses on custom, client-centered strategies to protect assets, plan for incapacity, and ensure smooth succession for families and small businesses.