Estate property transfers are governed under state law. In Georgia, real estate that is part of a probated estate is held by a court approved executor who transfers the property by "executor's deed" to beneficiaries named in the deceased property owner's court validated will. In contrast, 13 other states, such as Arizona, Missouri and Ohio, facilitate the transfer of real estate outside of probate by the use of beneficiary deeds which are titled to the property owner.
All personal and real estate property that is held solely in the decedent's name is included in the probated estate and subject to the jurisdiction of the probate or surrogate's court. The court collects filing fees for examining all the documents it must review and levies additional charges for hearings, petitions and other court proceedings. The probate process may result in additional charges for lawyers, accountants and appraisers who may be needed to assist the executor in settling the estate.
Fear of high probate costs, influences people to transfer their property to a revocable living trust. Upon death, the trust assets automatically roll into a testamentary trust and are not subject to probate. Similarly, property that is jointly owned or titled "payable on death" or "transfer on death" also avoids probate. While Georgia permits "transfer on death" titling for bank accounts and securities, it does not allow this form of registration for real estate. However, in cases in which decedents die without wills and all the heirs are in agreement, Georgia law permits disposition of an estate of any size without probate in accordance with the state laws of intestacy.
Deeds of Trust
Without access to beneficiary deeds, more Georgia real state may be subject to probate. It may be easier for lenders to foreclose on real estate because loans are secured by "deeds of trust" that enable lenders to seek non-judicial foreclosures rather than filing suit for foreclosure as required when lenders are secured by a mortgage. In Georgia and 13 other states, borrowers are called "trustors" and the property titles are conveyed to "trustees," usually title or escrow companies. Lenders who are the beneficiaries of these trusts can simply ask the trustees to initiate foreclosure after expiration of the required notice of default time period.
Probate Pros and Cons
According to California attorney Ivo Austin, conventional wisdom seems to favor shielding estates from the high cost of probate by retitling property to living trusts, joint ownership or transfer on death deeds when permitted by state law. Yet, in situations in which there is a contentious relationship among heirs or there may be unknown creditors of the estate, the better strategy may be to expose all the major assets of the estate to the protection of the probate court. Despite higher initial settlement costs, once the estate is closed the court cuts off future lawsuits from disgruntled heirs and creditor claimants.
- Nolo: Avoiding Probate with Transfer-on-Death Accounts and Registrations
- Georgia Family Law; Georgia Probate Procedings: When There Is No Will; Steve Worrall, May 9, 2007
- Law.com: Deed of Trust
- Real Estate Lawyers: Understanding the Executor's Deed
- Foreclosed Dreams: Deed of Trust vs. Mortgage
- Law Office of Ivo Austin; Why Avoid Probate? Pros and Cons of the System; Ivo Austin; 2010
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