Should I put my house into a trust? | Georgia attorney

If you own a home in Georgia, a trust will keep your house out of probate (a long court process that means your family has to wait before they can sell or refinance it). Putting your house into a revocable living trust lets you pass it directly to your loved ones without delay, while keeping full control during your lifetime. 

Should you put your house into a trust? As an attorney, I’m tempted to give the classic answer: “It depends.” But the more helpful answer is really quite simple. For most Georgia homeowners, there are a lot of good reasons to put your home in a trust and very few downsides. In this article, I’ll walk you through both sides so you can decide for yourself.

What happens to your house if you don’t have a trust?

Real estate that’s titled in your name alone must pass through probate when you pass away. There’s no way around this; every Georgia home that’s titled to an individual must go through the probate court system before anyone can inherit it.

While that’s going on, your family has limited options for what they can do with the house. They can’t sell, transfer, or refinance until the probate court allows them to. If your adult kids don’t plan to live in your home, this means they’re stuck waiting on the court (and paying all those extra months of the mortgage) before they can do that.

Probate for a Georgia property is not a quick process. A typical case takes several months at a minimum, depending on the county and how complex your estate is. It’s also very public; every probate case is a matter of public record, so details like the value of your home, your beneficiaries, and the terms of your will are all accessible to anyone who wants to look.

What does putting your home in a trust do?

Putting your house into a trust means retitling the property from your name into the name of your trust, with you as the trustee. On paper, your trust owns the home, rather than you as an individual. But in practice, you’re still in complete control, so you get the best of both worlds.

By putting your home into a revocable living trust, you can:

• Prevent delays: Your successor trustee (the person who takes control of the trust after you’re gone) can transfer or sell the property immediately, without waiting on permission from the court system.
• Account for incapacity: If you’re unable to manage your affairs while you’re still alive, your successor trustee can manage or sell the property on your behalf without needing a court-appointed conservatorship.
• Ensure privacy: Your home will pass to your beneficiaries outside probate court, so there’s no public record.
• Retain control: During your lifetime, nothing changes; you can still sell, refinance, or rent out your home without issue, just as if you still owned the house in your name.

Is there a downside to putting your house into a trust?

Now let’s talk about the potential downsides. 

Retitling requires action

The biggest one is that you have to fund the trust in order for it to take effect. In other words, just setting up the trust isn’t enough; you have to take the additional step of re-recording the deed to transfer the property into the trust, per your county’s deed recording requirements. 

If your trust document names your house but you’ve never retitled it, you’ve just bought a very expensive piece of paper. This is the most common issue I see.

Closings and refinancings get more involved

While you can sell or refinance your home without issue when it’s owned by a trust, some people find the extra paperwork to be a bit more complex. The good news is, most lenders and title companies work with trust-held property regularly, so this is just a minor speed bump, but I still think it’s worth mentioning.

Homestead exemption

When your home is held in a revocable trust, you need to update your homestead exemption to reflect that. Basically, you’re showing that even though the trust owns the home, you are the trustee and beneficiary, and you still live there. Once you do that, you retain your homestead exemption without issue. 

This step is very simple, but it’s one some people skip, which leads to them losing a benefit they should have kept.

What if you own multiple properties or investment properties?

The more properties you own, the more likely it is that a trust will benefit you, especially if some of those properties are in another state. Any property you own in another state must go through that state’s probate court (this is called ancillary probate), so owning more than one property across state lines could mean your family ends up juggling multiple probate processes at once. 

By using a trust, you can avoid ancillary probate in every state where you own real estate. If you own a vacation home, an out-of-state rental, or an investment property, this is a huge upside to creating a trust.

Even if all your properties are held within Georgia, rental properties can be an undue burden on your beneficiaries while they wait out the court process. They’ll need to keep making mortgage payments, paying property management companies, and dealing with tenants out of their own pockets until access to your funds is released. (Remember, those funds need to pass through probate, too.)

Should you put jointly owned property into a trust?

When people hear that property titled in one person’s name must pass through probate, the solution they usually think of first is joint ownership: adding another name to the title. But this workaround only goes halfway. If you own your home jointly with right of survivorship (usually with a spouse), the property will automatically pass to the surviving co-owner when the first owner dies, without requiring probate. So far, so good.

The problem is that joint ownership feels like a fix when it’s really a Band-Aid. When the surviving owner dies, the house is now in their name alone, which means the property will pass through probate before the kids or other beneficiaries can inherit. So you’re really just delaying the problem. 

Who should put their home in a trust?

A trust probably makes the most sense for your estate plan if you’re:

• A homeowner who wants to keep your family out of probate court
• A parent who wants your home to pass directly to your children without delay
• Someone who owns property in more than one state
• Part of a blended family who wants more control over what happens to the home
• Someone who wants a plan for both death and incapacity

Who shouldn’t put their home in a trust?

On the flip side, you probably don’t need a trust if you have a very simple estate: no minor children, modest assets, and perhaps a spouse who’s a co-owner with right of survivorship who has their own plan in place.

The bottom line for Georgia homeowners

For most Georgia homeowners, putting your home into a trust is one of the highest-value estate planning moves you can make, with very few downsides. It keeps your family out of a slow, public court process, protects you if you’re incapacitated, and changes almost nothing in day-to-day control while you’re alive. 

Want to learn more about how to build the best estate plan for your family? Grab our free estate planning ebook here.

Frequently asked questions

Does putting my house in a trust avoid probate?

Yes, a home held in a revocable living trust passes directly to your beneficiaries through your successor trustee, with no probate. If your house is titled in your name alone, it must pass through probate.

Do I lose control of my home if I put it in a trust?

No. As the trustee and beneficiary of your own revocable trust, you can sell, refinance, or move whenever you want. It’s more or less the same as holding the home in your own name, except that your successor trustee is legally entitled to step in if you become incapacitated or pass away.

Will putting my house in a trust affect my Georgia homestead exemption?

Not if you follow the correct steps. You need to update your homestead exemption to show that the trust owns the home, while you as trustee and beneficiary still live there. If you do that, you keep your exemption.

Will joint ownership with my spouse avoid probate?

Only when the first spouse passes away. When the surviving owner dies, the home is in their name alone and goes through probate. 

Can I put my home in a trust if I have a mortgage?

For a revocable trust, most residential lenders won’t trigger the due-on-sale clause when you transfer your own home into a trust, but make sure to confirm with your lender.