When a Transfer on Death Deed Is Not Enough

In Georgia, Transfer on Death (TOD) deeds became effective July 1, 2024, under O.C.G.A. § 44-17-1. They allow a property owner to retain full control during life, revoke the deed at any time, and pass real estate automatically at death. However, beneficiaries have no rights until death and must file an affidavit within nine months to complete the transfer.

While often compared to a Lady Bird deed, Georgia’s TOD deed is different. A Lady Bird deed creates a present future interest, while a TOD deed creates no legal interest until death. This makes TOD deeds simpler—but also far less flexible than enhanced life estate deeds or a Revocable Living Trust.

A TOD deed serves one narrow purpose: avoiding probate for a single property. It does not provide comprehensive estate planning, and for many families, that simplicity creates risk.

One of the biggest concerns is planning for minor children. A TOD deed transfers property outright with no safeguards. If a child is under 18, they cannot legally manage the property, forcing the family into court to appoint a conservator—eliminating any probate advantage. There is also no way to delay distribution or control how and when the child receives the asset.

TOD deeds also fail to address incapacity. They only take effect at death. If the owner becomes disabled, loved ones may have no authority to manage, refinance, or sell the property without court involvement. This can create delays and financial strain during critical times.

Blended families present another risk. A TOD deed names a fixed beneficiary and lacks flexibility to balance the needs of a surviving spouse and children from prior relationships. This can unintentionally disinherit loved ones or lead to conflict.

Additionally, TOD deeds provide no asset protection. Once the property transfers, it becomes fully exposed to the beneficiary’s creditors, divorce, or lawsuits. There are no built-in safeguards.

By contrast, a Revocable Living Trust offers significantly more protection and control. A trust allows you to:

• Avoid probate for all titled assets—not just one property
• Plan for incapacity by authorizing a successor trustee to step in without court involvement
• Protect minor beneficiaries by holding assets in trust until a chosen age
• Structure distributions over time rather than giving assets outright
• Provide protection against a beneficiary’s creditors, divorce, or financial mismanagement
• Create customized plans for blended families, including lifetime support for a spouse while preserving inheritance for children
• Maintain privacy, since trusts are not public record like probate proceedings

A trust also allows for ongoing management. Instead of a one-time transfer, assets can remain protected and professionally managed for years, ensuring long-term stability for your family.

A TOD deed may be appropriate in limited situations, but it is not a complete estate plan. For families seeking true protection, flexibility, and long-term security, a Revocable Living Trust remains the best practice. The attorneys at Bowman Law Firm assist individuals and families with wills, trusts, and comprehensive estate planning solutions.