Transfer-on-Death Deeds in Georgia

During the 2024 legislative session, HB 1247 morphed into SB 420, which passed both houses and was signed by the governor.  The new law creates a new Chapter 17 within Georgia’s Title 44 and authorizes the creation of transfer on death deeds. Previously, these deeds, commonly known as Lady Bird Deeds (although technically LBDs are enhanced life estates), were ineffective in Georgia.

The new law provides that an interest in real estate may be titled in a transfer on death form by recording a deed signed by the record owner, designating a grantee beneficiary or beneficiaries of the interest. The law includes a form of deed. It also provides that acceptance of the TOD interest is pursuant to an affidavit affirming verification of the owner’s death, whether the record owner and the designated beneficiary were married at the time of the owner’s death and a legal description of the real estate.

The TOD beneficiary must file the affidavit with the Clerk of Superior Court in the county where the real estate is located within nine months of the record owner’s death or the property interest reverts to the deceased record owner’s estate.

During the record owner’s lifetime, the designation is revocable. Filing a new designation revoke the old one. The record owner remains the legal and record owner until death.

NOTE: The jury is still out on whether TOD Deeds will protect property from Medicaid Estate Recovery or other creditor claims. One reason the jury is out on these deeds is because the owner remains the legal and equitable owner until death (O.C.G.A. § 44-17-7). Another is because the beneficiary takes the property subject to “all recorded conveyances, assignments, contracts, mortgages, liens, and security pledges made by the record owner or to which the record owner was subject during the lifetime of such record owner including, but not limited to, any recorded executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, and to any interest conveyed by the record owner that is less than all of the record owner’s interest in the property.” See O.C.G.A. § 44-17-5(a). With regard to Estate Recovery, it seems that a TEFRA lien (which Georgia presently does not file) pursuant to 42 U.S.C. § 1396p(a)(1)(B) is the kind of lien that follows the property into the beneficiary’s hands.