Properties in Your Personal Name
Probate is a court-supervised process where a judge takes control of your assets and oversees their distribution. In Georgia, the probate court appoints a personal representative (the person who manages your estate). That appointment takes time. Until it happens, no one has legal authority to act on your properties.
Until the court appoints someone, your tenants still live in the properties and still owe rent. But there is no authorized person to collect it. No one can sign a lease renewal. No one can authorize the property manager to make repairs. No one can direct the mortgage payments.
A lease expires before the court has appointed anyone. The property manager has no authorized person to work with. The tenant asks whether to renew. No one can sign. The tenant leaves. The property goes vacant. The mortgage still runs every month. The income stops. The expenses do not.
Properties in an LLC
Many Georgia investors hold rental properties inside LLCs to separate liability from their personal assets. When you die, the LLC still technically owns the property. But you owned the LLC. Your membership interest is now an asset in your estate and goes through probate.
If you are the only owner, no one has authority to act as the LLC’s member until a probate court appoints an executor. No one can vote on decisions, sign contracts, manage the LLC’s bank account, or direct the property manager. Georgia law then makes that executor a member of the LLC, unless they turn it down in writing within 90 days of your death (O.C.G.A. § 14-11-506). If the LLC has other owners, your executor gets your share of the profits but no vote, unless the operating agreement says otherwise. The other owners keep running the business.
For a full explanation of how LLC ownership interacts with probate, see Problems With an LLC Without a Trust for Georgia Real Estate Investors.
Why a Will Does Not Fix This
Many investors assume their will fixes the probate problem. It does not. A will is a probate document. It tells the court what to do after the court takes charge. A will does not let anyone act until the court appoints an executor.
Your will names your spouse or your adult children as beneficiaries. That does not give them legal authority to collect rent, sign leases, or authorize repairs. Not until the court appoints someone. For a full breakdown of what that process costs your family, see What It Costs to Leave Rental Properties Through a Will Instead of a Trust.
What a Trust Does Instead
A revocable living trust names a successor trustee (the person who steps in when you die or become incapacitated). At the moment of your death, the successor trustee has immediate legal authority over everything inside the trust. No court appointment. No waiting period.
1
Successor trustee steps in immediately
No court appointment required. The trust document gives the successor trustee legal authority from the moment of death. That means day one, with no wait for a court.
2
Rent is collected, mortgages are paid
The successor trustee can collect rent, pay property expenses, authorize repairs, and manage property managers without any court involvement.
3
Leases continue without interruption
Tenants deal with an authorized person from day one. No gap in management authority. No risk of vacancy caused by an ownership transfer in limbo.
4
Properties transfer to heirs on the trustee’s timeline
No court approval needed for distribution. The trust document specifies who gets what and when. The trustee follows those instructions without waiting for a judge.
For this to work, the properties must be funded into the trust before your death. That means a deed transfer for each property held in your personal name, or an assignment of LLC membership interest for properties held through an LLC. Signing the trust document is not enough.
The Unfunded Trust Problem
Georgia investors regularly sign a revocable trust, file it away, and never complete the deed transfers. Three years later, the rental properties are still in the investor’s personal name. All of them go through probate. The successor trustee named in the trust has no authority over those properties, because they were never inside the trust.
The deed transfer is the step that puts a property inside a trust. Without it, the trust does not cover the property. The holding structure that was supposed to protect the portfolio does nothing at all. For the full breakdown of why this happens and how to avoid it, see Common Mistakes Georgia Real Estate Investors Make With Estate Planning.
What Your Family Sees When the Trust Works
Your spouse is the successor trustee. You die on a Tuesday. By Wednesday, they have legal authority over every property inside the trust. They call the property manager. They confirm the leases. They authorize the repair on the unit that needs a new water heater. The mortgage payments go out on schedule. The tenants do not know anything changed.
The rental portfolio keeps running. The income keeps coming in. Your family does not lose a single month of rent to a court proceeding. This assumes the trust was funded (every property re-deeded into it, every LLC interest assigned to it). A trust that was signed but never funded provides the same protection as no trust at all. For the five ways a signed trust can still break down at death, see Why Most Georgia Rental Property Estate Plans Fail.
When multiple heirs inherit the same property, any one of them can force a court-ordered sale under O.C.G.A. § 44-6-160, regardless of ownership percentage. For what that process looks like and what it costs, see What Happens When Heirs Disagree About Rental Properties in Georgia.
For a full overview of the structure Georgia real estate investors use to protect their portfolios, see Estate Planning for Real Estate Investors in Georgia.
