A practical overview of the 2026 Amendments

Prepared May 13, 2026. Source: Act 379 (Former House Bill 413). This blog post is legal information, not legal advice.

Georgia's transfer-on-death deed law is getting a significant tune-up. House Bill 413 (now Act 379), which was signed into law on April 22, 2026,  revises Chapter 17 of Title 44  of the Official Code of Georgia Annotated, governing transfer-on-death deeds (TOD Deeds) for real estate. You can find the legislation here. 

The changes fall into five major categories:

1.     They clarify who can create a TOD Deed;

2.     How beneficiaries accept the property after the owner dies;

3.     How estate expenses are handled;

4.     Revocation Rules; and

5.     What happens when a beneficiary dies

Who can create a TOD Deed

Two of the biggest clarifications relate to who can execute a TOD Deed, and the capacity required to do so.

The amendments clarify that a person must have the capacity to make a contract in order to create a TOD Deed, not just the capacity to make a Will. Without diving too deep into the legalese, this means that creating a TOD Deed requires a higher level of capacity than creating a Will.

Second, the amendments state that an attorney-in-fact (e.g. an agent under a Power of Attorney) cannot, under any circumstances, sign a TOD, or a revocation of a TOD Deed, on the owner's behalf, even if the Power of Attorney states that the Agent can. In other words, the owner must sign it personally.

Flexibility for Beneficiaries and Trusts

The amendments also give property owners more planning flexibility. A TOD Deed can now name contingent beneficiaries in case a beneficiary dies before the owner, or dies after the owner but before accepting the property. This is a significant change, making a TOD Deed more appealing to those concerned about the need for contingent beneficiaries.

TOD Deeds may also name a trustee as the beneficiary, allowing the property interest to move into an existing trust created by the property owner.

However, the deed cannot be used to create the trust itself. That distinction matters: the transfer-on-death deed can point to a trust, but it is not a substitute for the owner not expressly creating the trust during his or her lifetime.

More Structured Acceptance Process

The acceptance process after death is another major focus of the revised legislation. A beneficiary does not automatically complete the transfer merely because the owner has died. Each beneficiary must individually accept his or her share by executing and recording an affidavit.

Each affidavit must:

1.     Verify the owner's death, and provide a certified copy of the Owner's Death Certificate;

2.     State whether the owner and beneficiary were married at the time of death;

3.     Identify the deed book and page number for the recorded TOD Deed; and

4.     Include a legal description of the property.

A legal guardian or legal conservator may accept for a minor or incapacitated person, and authorized representatives may act for companies, trusts, or other legal entities, but one beneficiary generally cannot accept on behalf of another.

Further, the amendments provide that the beneficiaries take title free of “all unsecured debts of the record owner's estate filed upon the death of the record owner, unless the property is unredeemed”

Responsibilities for Personal Representatives

The estate's Personal Representative also receives new responsibilities and tools.

First, just like the Personal Representative must notify a Will's beneficiaries, the Personal Representative must notify the beneficiaries named in the TOD Deed about the TOD Deed. While the amendments do not require that such notice be via Certified Mail or other trackable methods, such methods may be advisable in order to prove that the notice was given.

For solvent estates (where there is enough money to pay bills), the Personal Representative is authorized to pay necessary expenses, such as mortgage payments, property taxes, and emergency repairs, to prevent imminent destruction or foreclosure of the property until a beneficiary accepts. If the estate is not repaid, it may receive a special lien against the property to secure repayment, subject to limits and priority rules.

The act also addresses harder cases involving insolvent estates. If the property is in imminent danger of foreclosure, condemnation, or destruction, and no beneficiary has completed the required acceptance steps, the personal representative may record an affidavit of notice. After that affidavit has been recorded, the estate may then sell the property, pay debts, and return remaining proceeds to the estate. That provision is aimed at preventing property from being lost or wasted while beneficiaries fail to act.

Revocation and Automatic Revocation rules

 Prior to the amendments, an owner could revoke a designation in a number of ways, either by executing a revocation, or by executing a new TOD Deed, and each method had differing requirements for a valid execution.

Now, the execution requirements for a revocation are the same, whether the owner revokes the deed in a standalone revocation or in a new TOD Deed, with only one witness and a notary requited. Further, the amendments provide that the owner must revoke the TOD Deed; an agent under a power of attorney cannot revoke it on behalf of the owner.

The amendments also clarify automatic revocation rules. If the owner sells or conveys the property to another person or entity before the owner's  death, conveys the property to the trustee of the owner's express trust, or the sole beneficiary dies before acceptance, then the TOD Deed is automatically rendered revoked.

What happens if a Beneficiary Dies

Finally, the bill clarifies what happens when a beneficiary dies. If one of several beneficiaries dies before the owner, that deceased beneficiary's share does not revert to the owner's estate or the deceased beneficiary's estate. Instead, it either:

1.     Passes to the designated successor beneficiaries of that deceased beneficiary in the TOD Deed; or

2.     Gets split evenly among the remaining designated beneficiaries.

The same rules apply if a beneficiary survives the owner but dies before accepting the property. It is worthwhile to note that the legislation here is somewhat confusing on this point, as prior sections of the bill allow for contingent beneficiary designations, but this section does not address the possibility that contingent beneficiaries exist. So, what does this really mean?  Ultimately, that might be for a court to decide, but we think this analysis makes the most sense as to how these provisions would be applied.

Practical takeaway

The practical takeaway is simple: Georgia TOD Deeds remain useful, and are now more powerful and flexible, but the details matter. Importantly, while a TOD Deed is a good tool in some situations, it may not be good for all situations.

When using a TOD Deed, owners should make sure that TOD Deeds are signed, witnessed, and recorded correctly. Beneficiaries should act promptly after death to gather the death certificate, prepare the affidavits, and record the required documents. Personal representatives should also be alert to notice duties, property expenses, and situations where the property may be at risk.

For property owners, beneficiaries, and estate representatives, the amendments makes the TOD Deed process more detailed, but also more predictable.

The safest approach is to treat these deeds as formal estate-planning instruments, not simple fill-in-the-blank forms, and to review them carefully before and after the owner's death to ensure that the owner's wishes are documented correctly and followed. As always, with important legal planning, we always recommend that you consult an experienced estate planning lawyer to get guidance for your particular situation.

PS – Georgia legislation is often a long and winding road

This legislation took a tortured road to passage. The original House Bill 413 from this session was relating to agriculture, seeking primarily to prohibit local ordinances that regulated the operation of mobile sawmills on agricultural land.  That bill passed the House, where it was then modified in the Senate, with the mobile sawmill language removed, the TOD Deed Act revisions inserted, along with the additional of a minor legislative change to an agriculture law addressing crop management and animal husbandry. The mobile sawmill provisions lost out.   After passage of this substituted language in the Senate, it went back to the House, where it was passed.  Governor Kemp signed the bill and the majority of it became effective immediately. 

The tortured road of this TOD Deed amendment brings back memories of the passage of the original TOD Deed in 2024, where bills were stripped and language substituted. For more information on that, you can read this blog post announcing the initial TOD Deed act.