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 — Set by Agreement, the Will, or Georgia Law
Your will can set your executor’s pay. Under O.C.G.A. § 53-6-60, if no written pay agreement and no will sets the executor’s pay, Georgia law gives the executor 2.5% of the money they collect for the estate and 2.5% of the money they pay out, and the probate court may also allow up to 3% of the value of any property handed over without being sold.
That pay comes on top of attorney fees and filing fees. It also comes on top of the rental income that sits locked in an estate account while probate runs.
When a rental property is handed to heirs without a sale, the court often orders a professional appraisal to set its value for that 3%, 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. This is 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
The complex probate cases we’ve handled have taken about 25 months and cost $29,700. 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, every month of probate locks up another $4,000 that your family cannot access.
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, since lenders will not process a refinance on an estate asset in probate
- Make major capital improvements, since expenditures beyond routine maintenance typically require court approval
- Distribute net rental income to heirs, since all cash stays in the estate account until final accounting
If the market shifts during those 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 plus flat add-ons |
| Executor commission |
Set by a written agreement or the will; if neither, by Georgia law |
$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 |
All net rent until probate closes |
$0 |
| What the complex probate cases we’ve handled have cost |
$29,700, plus locked rental income |
$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 months-long 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.
If your goal is to pass rental properties to your children specifically, with control over timing, protection for minor children, and step-up in basis preserved, see Best Way to Pass Rental Properties to Your Children in Georgia.
For a side-by-side comparison of a will and a revocable trust across six dimensions, probate, incapacity, cost, distribution control, privacy, and tax basis, see Revocable Trust vs. Will for Georgia Real Estate Investors.
