Why a Will Does Not Transfer Rental Properties Directly
A will does not transfer property at death. It instructs a probate court on how you want your property transferred. The court then supervises the process. That supervision takes time, costs money, and has legal rules that bind your family’s hands while it plays out.
Every rental property you own in your personal name — not in an LLC, not in a trust — is an asset in your probate estate. When you die with a will, your family must open a probate case in the Georgia county where you lived, get a personal representative appointed by the court, and wait for the probate process to run its course before ownership of those properties transfers.
During that entire period, your heirs have no legal authority to sell, refinance, renovate, or make management decisions about the properties. The executor steps into your role as landlord and can collect rent and initiate evictions — but may need court permission to sell or list a property unless your will explicitly grants independent administration powers under O.C.G.A. § 53-8-13.
The Executor Commission — 2.5% In, 2.5% Out
Georgia sets executor compensation by statute. Under O.C.G.A. § 53-6-60, the executor is entitled to 2.5% of all money received into the estate and 2.5% of all money paid out. These rates are a statutory entitlement — they do not require court approval.
On a rental property estate with $500,000 in liquid assets: 2.5% of $500,000 received equals $12,500. 2.5% of $500,000 paid out equals $12,500. Total executor commission: $25,000.
That is before attorney fees. That is before filing fees. That is before the 8 to 18 months of rental income that sat locked in an estate account while probate ran.
For rental properties transferred to heirs without a sale — distributed in-kind — the base commission does not apply. But the executor can petition the probate court for up to 3% of the appraised value under O.C.G.A. § 53-6-60(b)(2), and the court typically orders a professional appraisal to establish that value, adding another cost to the process.
Attorney Fees — $3,000 to $8,000, No Statutory Cap
Georgia imposes no cap on probate attorney fees. Most attorneys charge a flat fee or hourly rate. For a straightforward rental property estate, flat fees run $3,000–$8,000. Hourly rates run $350–$450 per hour.
A rental property estate is rarely straightforward. Rental properties require valuation. If the properties are held in an LLC, the LLC membership interest must be inventoried and valued — a more complex process than valuing real estate directly. Multiple properties in multiple counties mean multiple court jurisdictions and multiple filing fees.
Any dispute — a contested will, a creditor claim, a disagreement among heirs about what to do with the properties — extends the timeline and the hourly meter.
Rental Income Is Locked During Probate
Georgia probate for an uncontested estate typically runs 8 to 18 months. During that period, any rental income your properties generate must be deposited into a dedicated estate account. Your heirs cannot receive those funds until the estate is settled and the probate court approves the final accounting.
For an investor with a two-property portfolio generating $4,000 per month in net rental income, 12 months of locked income is $48,000 that your family cannot access during that period.
That is not a court fee. That is not an attorney fee. It is cash flow that existed, that your tenants paid, that entered an estate account — and that your family watched sit there while they waited.
A revocable trust does not do this. The successor trustee takes over immediately at death. Rental income continues flowing to the beneficiaries with no lockout period.
What Your Family Cannot Do While Probate Is Open
The executor steps into your role as landlord. Under Georgia landlord-tenant law, the executor can collect rent and initiate dispossessory proceedings against non-paying tenants. Existing leases remain valid — tenants cannot be displaced simply because the owner died.
What the executor generally cannot do without court permission:
- Sell any rental property — unless the will grants independent administration authority under O.C.G.A. § 53-8-13
- Refinance — lenders will not process a refinance on an estate asset in probate
- Make major capital improvements — expenditures beyond routine maintenance typically require court approval
- Distribute net rental income to heirs — all cash stays in the estate account until final accounting
If the market shifts during those 8 to 18 months, your family watches. They cannot act. The properties sit in probate while the market does what the market does.
The Full Cost Comparison
| Cost |
Will + Probate |
Revocable Trust |
| Document preparation |
$500–$1,500 |
$3,500–$6,000 |
| Executor commission (5% of cash) |
$15,000–$30,000+ |
$0 |
| Attorney fees |
$3,000–$8,000 |
$0 at death |
| Court filing fees |
$200–$500 |
$0 |
| Publication costs |
$100–$300 |
$0 |
| Property appraisal (in-kind transfer) |
$500–$2,000 per property |
$0 |
| Locked rental income (8–18 months) |
$30,000–$80,000+ |
$0 |
| Total at-death cost |
$50,000–$120,000+ |
$0 |
The will is cheaper to create. Everything after creation runs in the opposite direction.
The trust cost is front-loaded. The will cost is back-loaded — and paid by your heirs, out of the estate, while they wait for access to what you left them.
What a Trust Does Instead
A revocable living trust transfers your rental properties to your named beneficiaries the day you die. No court. No executor commissions. No attorney fees at death. No publication. No 8-to-18-month wait.
The successor trustee you named in the trust steps in immediately. They can collect rent on the first of the month after you die. They can list a property for sale the week you die. They can make management decisions without asking a probate court.
The trust also covers incapacity. If you have a stroke or illness before you die, your successor trustee manages the properties during that period too — without a court-ordered conservatorship. A will does nothing while you are alive.
For a full overview of the trust structure for Georgia real estate investors, see Best Way to Hold Rental Properties in Georgia for Estate Planning.
For the full cost breakdown of setting up the trust and LLC structure, see How Much Does Estate Planning Cost for a Real Estate Investor in Georgia.
For what probate actually looks like on a rental property portfolio, see How Much Does It Cost When Georgia Rental Properties Go Through Probate.
For a comparison of every ownership structure option, see What Happens to Rental Properties When You Die in Georgia.
