What Happens to Your Rental Properties When You Die Without a Plan in Georgia
When a Georgia real estate investor dies without a will or trust, the state’s intestate succession law controls what happens to every asset — including rental properties. Under O.C.G.A. § 53-2-1, if you are married with children, your spouse and your children divide your estate equally — with your spouse receiving no less than one-third. This means a rental property you own in your personal name does not pass automatically to your spouse. It is split among your spouse and every child you have.
The practical result is that your heirs become tenants in common on every property — a legal status that gives each co-owner an undivided interest in the whole property, the right to use the property, and the right to sell or transfer their interest to anyone else. A spouse who wanted to keep a rental property generating income now co-owns it with two adult children, one of whom may want to sell immediately.
Before any of this happens, probate court takes over. No one has legal authority to manage your properties, collect rent, sign leases, or authorize repairs until the court appoints a personal representative and issues letters of administration. For a real estate investor with multiple tenants, that gap in authority — which can last weeks to months — creates immediate operational problems.
For more on what happens to each property specifically, see What Happens to Rental Properties When You Die in Georgia.
The Probate Cost Stack: What Georgia Families Actually Pay
Probate for a Georgia real estate investor is classified as a complex estate by default. Multiple properties, LLC interests, ongoing tenant relationships, and out-of-state properties all add cost and time. Here is what each cost category looks like for a three-property investor with an $800,000 portfolio.
1
Attorney Fees — $4,000 to $24,000+
Georgia probate attorneys charge either an hourly rate ($350 to $450 per hour) or a percentage of the estate’s value (1% to 3%). On an $800,000 portfolio at 3%, that is $24,000 in attorney fees alone. Hourly-rate attorneys cannot quote a total upfront. Every contested motion, every heir dispute, and every out-of-state coordination adds hours to the bill.
2
Executor Commission — Up to $40,000 on an $800K Portfolio
Under O.C.G.A. § 53-6-60, the executor of an estate can charge 2.5% of all money received into the estate and 2.5% of all money paid out — up to 5% total across both directions. On an estate receiving $800,000 in property value and paying it out to heirs, that commission reaches $40,000. A family member serving as executor is legally entitled to this fee and often takes it.
3
Property Appraisals — $350 to $500 Per Property
Every piece of real property in the estate must be appraised before the court will authorize any distribution. Three properties cost $1,050 to $1,500 in appraisal fees. If any property is contested or the court requires a sale, a second appraisal is often required at the estate’s expense.
4
Court and Filing Fees — $225 to $265 Plus Additional Motions
Georgia probate court filing fees run $225 to $265 for the initial petition. Each additional filing — inventory reports, interim accountings, motions to authorize property management, petitions to sell — carries its own fee. A three-property estate with two years of court involvement can accumulate $1,500 to $3,000 in filing fees alone.
5
Accounting and Administrative Fees — $1,000 to $5,000+
An estate with three rental properties, multiple tenants, and 18 to 30 months of income requires professional accounting. Rent receipts, maintenance expenses, insurance, and property taxes must all be tracked and reported to the court. CPA fees for estate accounting on a rental portfolio commonly run $1,000 to $5,000. Add death certificates ($25 each; you will need 10 to 20 copies) and legal notice publication.
The five categories above commonly total $27,300 for a complex Georgia estate — attorney fees, commissions, and administrative costs combined. That figure does not include what your family loses while the estate sits in court.
For the complete cost breakdown by category, see How Much Does It Cost When Georgia Rental Properties Go Through Probate.
Locked Rental Income: The Cost No One Calculates
During probate, rental income does not stop. Tenants keep paying rent. But that money goes into a restricted estate account that no heir can use for personal expenses until probate closes. The executor collects it, pays estate expenses from it, and accounts for every dollar to the court. No distribution happens until the final accounting is approved.
For a three-property investor generating $4,500 per month in net rental income, that is $81,000 in cash flow locked up over 18 months — and $135,000 if probate runs the full 30 months. The family cannot use this money to pay their own bills or make any investment. It sits in the estate account until a judge says otherwise.
For more on how Georgia law handles rental income specifically during probate, see What Happens to Rental Income When the Owner Dies in Georgia.
When Heirs Cannot Agree: The Forced Sale Risk
Tenants-in-common ownership — which is what intestate succession creates — gives every co-owner the right to petition a court for partition. Under O.C.G.A. § 44-6-160, any co-owner can file a partition action to force either a physical division of the property or a sale with the proceeds split among owners. For rental properties, physical division is almost never possible. The court orders a sale.
Court-supervised partition sales consistently close 10% to 30% below market value. Buyers know the estate is constrained and negotiate accordingly. On a $300,000 rental property, a 20% discount costs your family $60,000.
Georgia’s Uniform Partition of Heirs Property Act (O.C.G.A. § 44-6-185) adds a specific threat: an outside investor can purchase one heir’s co-ownership interest and then petition the court for partition. If your adult child sells their inherited share to an outside buyer for quick cash, that buyer can force a sale of the entire property over the objection of your surviving spouse or other heirs.
Out-of-State Properties Trigger a Separate Probate in Every State
Georgia probate does not cover property located in other states. A Georgia investor who owns a rental in Florida, Tennessee, or South Carolina must open a separate probate proceeding — called ancillary probate — in each of those states. Each state requires its own probate attorney, its own court filings, its own timeline, and its own fees.
Ancillary probate in a neighboring state commonly runs $3,000 to $5,500 per state in attorney fees and court costs. An investor with properties in Georgia and two other states faces three separate proceedings running simultaneously — each on its own timeline, each requiring independent legal representation. Georgia probate does not close until all ancillary proceedings close.
Your Mortgage Does Not Stop During Probate
The Garn-St. Germain Act prevents lenders from calling a loan due solely because the borrower dies. But until the probate court appoints a personal representative, no one has legal authority to communicate with the lender, authorize automatic payments, or access estate accounts to keep mortgages current.
A missed mortgage payment during that gap triggers late fees and credit damage to the estate. Multiple missed payments can trigger foreclosure proceedings even while probate is open. The executor, once appointed, can cure the default — but the process requires court approval for each transaction and adds time to an already lengthy proceeding.
The Step-Up in Basis Your Heirs Lose When Property Is Sold During Probate
When a rental property is inherited through a trust or a will, heirs receive a step-up in basis to the fair market value at the date of death. This eliminates accumulated depreciation. An heir who sells an inherited property at fair market value pays little or no capital gains tax and owes no depreciation recapture.
When probate forces a sale — because the estate needs liquidity or because heirs cannot agree — the property is sold by the estate, not inherited by a beneficiary. Depreciation recapture is taxed at up to 25% federally on the amount of depreciation taken over the investment’s life. For a property purchased for $150,000 and depreciated over 27.5 years, the recapture liability on a forced sale can easily exceed $20,000.
The LLC Trap: Why Your Operating Agreement Does Not Replace an Estate Plan
Many Georgia real estate investors assume that holding properties in an LLC protects their family from probate. It does not — unless the LLC operating agreement has a succession plan and a trust owns the LLC membership interest.
When an LLC member dies, the LLC membership interest passes through probate — not the property directly, but the interest that controls the property. If your operating agreement does not name a successor member or does not assign membership to a trust, the probate court controls who steps into that membership seat. Until the court resolves that question, no one can authorize the LLC to collect rent, authorize repairs, or sign a lease renewal.
For more on the specific problems this creates, see Problems With Using an LLC Without a Trust for Georgia Rental Properties.
The Full Cost of Doing Nothing: A Georgia Investor Scenario
Here is what the cost stack looks like for a specific Georgia investor: married, two adult children, three rental properties (two in Georgia, one in Tennessee), $800,000 total portfolio value, $4,500 per month in net rental income, no will, no trust, no succession plan in the LLC operating agreement.
1
Probate Attorney Fees — $27,300
Complex Georgia probate with multiple properties, LLC interests, and an out-of-state property. This is the average documented cost for complex estates in Georgia.
2
Executor Commission — $40,000
2.5% of $800,000 received into the estate plus 2.5% of $800,000 paid out to heirs. An adult child serving as executor takes this commission — they are legally entitled to it and frequently do.
3
Ancillary Probate in Tennessee — $4,250
Separate probate proceeding for the Tennessee rental property. Georgia probate does not cover it. Tennessee attorney, Tennessee court, Tennessee timeline — all running concurrently with Georgia but independently.
4
Locked Rental Income — $81,000
$4,500 per month in net rental income locked in the estate account for 18 months while probate runs. The family cannot access this money. It does not earn interest at a meaningful rate. It sits.
5
Forced Sale Discount (One Property) — $25,000
One adult child wants to sell the Georgia rental property. The other wants to keep it. A partition action results in a court-ordered sale at 10% below market on a $250,000 property.
Total estimated cost of inaction: $177,550. This does not include the depreciation recapture tax on the forced sale, legal fees for the partition action itself, or the cost of any heir dispute that escalates to litigation.
What It Costs to Have a Plan Instead
A complete revocable trust-based estate plan for a Georgia real estate investor at The Hive Law starts at $3,500 for a single-property plan. A three-property investor with two in-state properties and one out-of-state property pays between $5,500 and $6,500 depending on the specific structure needed.
When the trust is properly funded, there is no probate proceeding in Georgia. There is no ancillary proceeding in Tennessee. The successor trustee named in the trust takes over management of the properties on the first business day after death. Tenants receive continuity. Mortgages are paid. The rental income the investor spent years building keeps flowing to the family.
For the complete breakdown of what is included and what each property type costs, see How Much Does Estate Planning Cost for a Real Estate Investor in Georgia.
For the best structure for holding rental properties to avoid both probate and liability exposure, see Best Way to Hold Rental Properties in Georgia for Estate Planning.
For a full overview of what the estate planning process includes for a real estate investor, see Estate Planning for Your Real Estate Portfolio.
