What a TOD Deed Does in Georgia (and What It Doesn’t)
Georgia enacted the Transfer-on-Death Deed Act (O.C.G.A. §§ 44-17-1 et seq.) effective July 1, 2024. A TOD deed lets you name one or more beneficiaries to receive real property at your death without going through probate.
The owner stays in complete control. You can sell the property, refinance it, rent it, or revoke the TOD deed entirely at any time — all without notifying the beneficiary. The beneficiary has no ownership interest, no veto power, and no rights during your lifetime. Under the statute, the owner “shall remain the legal and equitable owner” and is treated as an “absolute owner” for purposes of creditors and purchasers.
At your death, the beneficiary must file an affidavit with the county clerk within 9 months. That affidavit, combined with a copy of the death certificate, completes the transfer. No probate court is involved.
One limitation: the beneficiary takes the property subject to all recorded encumbrances — existing mortgages, liens, and security interests remain attached. The TOD deed does not wipe debts.
What Joint Tenancy Does — and Where It Locks You In
JTWROS is co-ownership with a built-in survivorship clause. When one joint tenant dies, their share passes automatically to the surviving joint tenant(s) — outside probate, no court required.
To create a JTWROS in Georgia, the deed must include specific language: “joint tenants with right of survivorship, and not as tenants in common” or similar. Georgia’s default is tenancy in common, which does not include survivorship rights — so the exact wording matters.
The limitation is what you give up. The moment you add a co-owner as a joint tenant, you lose the ability to leave that share of the property to anyone else. A will cannot override joint tenancy. Your children, your trust, your sibling — none of them can receive that property if your co-owner is still alive. The survivorship right belongs to the joint tenants, not to whoever is named in your estate plan.
You also cannot sever the joint tenancy, sell the property, or refinance without the other owner’s signature.
The Core Difference: Who Gets the Property
This is the decision point most people miss.
JTWROS: Property goes to the surviving co-owner. This works well when two spouses own a home together and each wants the other to inherit. It fails the moment the goal is to leave property to a child, a trust, or anyone other than the co-owner.
TOD deed: Property goes to whoever you name. You can name one beneficiary or several. You can name a living trust as the beneficiary — which is often the cleanest option for complex estates. You can change the beneficiary without anyone’s consent by recording a new TOD deed or a revocation instrument.
The TOD deed gives you survivorship-style probate avoidance without the ownership lock-in.
Control During Your Lifetime
| Factor |
JTWROS |
TOD Deed |
| Can you sell the property alone? |
No — all joint tenants must sign |
Yes — owner signs alone |
| Can you refinance alone? |
No |
Yes |
| Can you change who inherits? |
No — requires co-owner consent |
Yes — record a new TOD deed |
| Can you revoke the arrangement? |
Not without co-owner consent |
Yes — record a revocation at any time |
| Does the beneficiary/co-owner have rights now? |
Yes — co-owner has present ownership interest |
No — beneficiary has no current rights |
With a TOD deed, you own the property outright. With JTWROS, you share ownership the moment the deed is signed.
Creditor Risk — Which Option Exposes Your Property
JTWROS exposes the property to the creditors of all joint tenants during their lifetimes. If your co-owner has a judgment against them, a creditor can record a FiFa and attach a lien to their interest in the jointly held property. For a detailed breakdown of how Georgia judgment liens work against joint tenants, see What Happens If a Joint Tenant Has Creditors in Georgia.
TOD deeds offer stronger protection during the owner’s lifetime. The beneficiary has no interest in the property, so a creditor of the beneficiary cannot attach a lien before the owner’s death. After the owner dies, the beneficiary’s creditors may reach the property once the affidavit is recorded. The deceased owner’s creditors face significant limitations under Georgia’s probate-only framework.
Medicaid consideration: Georgia is a “probate-only” state for Medicaid estate recovery — Medicaid can only recover costs from assets that go through probate. Property transferred by a TOD deed passes outside probate and is therefore outside the recovery program’s reach. Property held as JTWROS also avoids Medicaid recovery for the same reason. On this dimension, both options perform equally well.
The 9-Month Deadline That Can Undo a TOD Deed
When an owner dies with a TOD deed recorded, the beneficiary has 9 months from the date of death to file an affidavit in the county where the property is located. The affidavit must include a copy of the death certificate and confirm the beneficiary’s identity and the property’s legal description.
If the beneficiary misses that deadline, they lose any interest the TOD deed would have transferred. The property then passes under the owner’s will — or, if no will exists, through Georgia’s intestate succession rules.
No one is required to notify the beneficiary that the TOD deed exists. No one is required to notify them when the owner dies. If the beneficiary does not know about the deed, they cannot file the affidavit in time. The owner should confirm in writing — kept somewhere accessible — that a TOD deed exists, where it is recorded, and what action the beneficiary must take.
JTWROS has no similar deadline. The transfer happens automatically at death with no filing requirement.
What Happens If You Use Both on the Same Property
This scenario comes up when a married couple holds property as JTWROS and one spouse separately executes a TOD deed naming a child.
Under Georgia law, only one joint tenant signing a TOD deed does not override the JTWROS. The other joint tenant’s survivorship right remains intact. The TOD deed only takes effect if the joint tenant who signed it is the last surviving joint tenant to die. If the other joint tenant dies first, the TOD deed becomes irrelevant — the signer becomes the sole owner, and the TOD deed then controls at the signer’s later death.
If both joint tenants want to use a TOD deed to name a beneficiary, both must sign the same TOD deed. And when both sign, the property transfers to the named beneficiary only after both joint tenants have died.
When Neither Option Is the Right Answer
Both JTWROS and TOD deeds work for simple situations: one property, straightforward beneficiaries, no complex assets or family dynamics. They break down in several common scenarios.
Multiple properties. A TOD deed is property-specific — you need a separate deed for each piece of real estate. A revocable trust covers all assets under one document.
Controlled distributions. Neither JTWROS nor a TOD deed can hold property for a minor child, distribute assets over time, or include conditions. A trust can do all of this.
Blended families. JTWROS sends property to the co-owner with no further instructions. A TOD deed sends it to the named beneficiary in one lump. Neither gives you the flexibility a trust provides for managing competing interests.
Disabled beneficiaries. Leaving property outright to someone receiving SSI or Medicaid can disqualify them from benefits. A special needs trust is required in those cases.
For a direct comparison of the TOD deed against a revocable trust, see Transfer on Death Deed vs. Revocable Trust in Georgia. For a full overview of how Georgia joint tenancy works, see Joint Tenants with Right of Survivorship in Georgia. To understand the common failure points with JTWROS, see Problems with Joint Tenancy in Georgia.
If cost is a factor, a revocable trust in Georgia typically starts around $3,500 — see How Much Does a Revocable Trust Cost in Georgia for a breakdown. To learn more about how a trust holds and manages property, visit the Revocable Living Trust service page.
