You retired in Metro Atlanta, bought a mountain cabin near Blowing Rock, and maybe picked up a little place on 30A in Florida while you were at it. Life is good. But from an estate planning perspective, owning real estate in more than one state creates a problem most people never think about until it is too late.
That problem is called ancillary probate, and it can cost your family thousands of extra dollars, months of extra time, and a tremendous amount of stress after you pass away.
This guide is written specifically for Georgia residents who own property in other states, with a focus on the two places Georgians tend to buy second homes: North Carolina and Florida. The goal is to explain the problem, walk through the available solutions, and give you enough background to have a productive conversation with an estate planning attorney.
This is general educational information, not legal advice. Laws vary by state and change over time. Always consult a licensed attorney in the relevant state before making estate planning decisions.
What Is Ancillary Probate and Why Does It Matter?
When a Georgia resident dies, the primary probate proceeding takes place in the Georgia county where that person lived. The Georgia probate court has authority over most of the person’s assets and can distribute them according to the will or, if there is no will, according to Georgia’s intestacy laws.
But here is the catch: the Georgia probate court has no legal authority over real estate located in another state. Real property is always governed by the laws of the state where it sits. That means if you own a vacation home in North Carolina and a condo in Florida, your family may need to open a separate probate proceeding in each of those states after you die. That secondary proceeding is called ancillary probate.
Ancillary probate is essentially a duplicate of the probate process, conducted under the rules of the state where the property is located. Your executor will typically need to hire a local attorney in each state, pay separate court filing fees, and follow that state’s specific probate requirements. If you own property in three states, your family could be dealing with three separate probate proceedings at the same time.
The practical consequences add up quickly. Each ancillary probate means additional attorney fees, court costs, and delays. The process also becomes a matter of public record in every state involved, reducing your family’s privacy. And if you die without a will, things get even more complicated because each state’s intestacy laws may distribute the property differently. It is entirely possible that the people who inherit your Georgia home under Georgia law would not be the same people who inherit your North Carolina cabin under North Carolina law.
How Georgia Probate Works in Brief
Georgia probate is handled through the probate court in the county where the deceased person lived. Georgia law requires that a will be admitted to probate before assets can be distributed. There are two forms of probate in Georgia: common form (a simpler process without a hearing) and solemn form (which includes notice to all heirs and a formal hearing).
When the estate includes out-of-state real property, the Georgia probate court handles all the assets within its jurisdiction. But for the out-of-state property, the executor must then take the certified will and authenticated probate documents from Georgia and file them with the probate court in each state where real property is located. Each of those courts then admits the will as a “foreign will” and oversees the transfer of the property in that state.
If the process sounds burdensome, that is because it is. But the good news is that with proper planning done during your lifetime, ancillary probate can often be avoided entirely.
The Solutions: How to Avoid Ancillary Probate
There are several strategies that can keep your out-of-state property from going through ancillary probate. The right choice depends on your specific circumstances, the states involved, and your broader estate planning goals.
Revocable Living Trust
A revocable living trust is widely considered the most flexible and reliable tool for avoiding probate across multiple states. When you place property into a properly established and funded trust, the trust becomes the legal owner of that property. Because the trust, not you individually, holds title, the property does not pass through probate when you die. Instead, your successor trustee distributes the property according to the terms of the trust document.
This works regardless of which state the property is in. Whether you own real estate in Georgia, North Carolina, Florida, or all three, a single revocable living trust can hold title to all of those properties. When you die, your successor trustee transfers the properties to your beneficiaries without any probate court involvement in any state.
During your lifetime, you maintain full control over the property. You can sell it, refinance it, or take it back out of the trust at any time. For tax purposes, a revocable living trust is generally treated as if you still own the property personally. There are no gift tax consequences when you transfer property into the trust, and the property typically receives a stepped-up tax basis at your death, which can reduce capital gains taxes for your beneficiaries if they decide to sell.
The main disadvantage of a trust is that it requires more upfront work and cost than simpler alternatives. The trust document must be properly drafted, and you must actually transfer ownership of each property into the trust by recording a new deed in each county where property is located. An unfunded trust, meaning one where the property was never retitled into the trust’s name, provides no probate avoidance benefit at all.
Joint Ownership with Right of Survivorship
Owning property as joint tenants with right of survivorship is another way to avoid probate. When one joint owner dies, the surviving owner automatically receives full ownership of the property by operation of law, without any probate proceeding. This works in Georgia, Florida, North Carolina, and virtually every other state.
For married couples, this is often the simplest solution. In Florida, married couples can also own property as tenants by the entirety, which provides the same survivorship benefit along with additional creditor protection.
However, joint ownership has significant limitations. It only works for the first death. When the surviving joint owner eventually dies, the property will need to go through probate unless other planning has been done. Joint ownership also carries risks: if you add a child as a joint owner, you are making a present gift that could trigger gift tax consequences, expose the property to the child’s creditors, and potentially create conflicts among your other children.
Georgia’s Transfer-on-Death Deed
As of July 1, 2024, Georgia law recognizes a new estate planning tool called the transfer-on-death deed, or TOD deed. Under O.C.G.A. Section 44-17-1 through 44-17-7, a Georgia property owner can record a deed that designates a beneficiary to receive the property upon the owner’s death. The property transfers automatically at death, bypassing probate.
The TOD deed allows the owner to retain full ownership and control during their lifetime. The owner can sell the property, refinance it, or revoke the TOD deed at any time without the beneficiary’s knowledge or consent. No interest in the property passes to the beneficiary until the owner’s death.
There are some important requirements and limitations to keep in mind. The beneficiary must file an affidavit along with the owner’s death certificate in the county where the property is located within nine months of the owner’s death. If this deadline is missed, the property reverts to the owner’s estate and goes through probate. The TOD deed also does not protect the property from the owner’s creditors, and the beneficiary receives the property subject to any existing mortgages or liens. There are also open questions about whether property transferred by TOD deed will receive the same stepped-up tax basis that property transferred through a will or trust typically receives.
The Georgia TOD deed is a useful tool, but it only applies to Georgia real estate. It does nothing to help with property you own in other states.
Florida’s Lady Bird Deed
Florida is one of a small number of states that recognize the enhanced life estate deed, commonly called a Lady Bird deed. This tool allows the property owner to keep a life estate in the property, meaning they retain the right to live in, use, sell, or mortgage the property during their lifetime. Upon the owner’s death, the property passes automatically to the named remainder beneficiaries without probate.
What makes the Lady Bird deed “enhanced” is that the owner retains the power to sell the property, change the beneficiaries, or revoke the deed entirely, all without the beneficiaries’ consent. This is different from a traditional life estate deed, where the owner gives up significant control.
Lady Bird deeds are popular in Florida because they are relatively simple and inexpensive compared to setting up a trust. They also preserve Florida’s homestead tax exemptions and can offer advantages for Medicaid planning, since the property generally passes outside of probate and is not subject to Florida’s Medicaid estate recovery program.
For a Georgia retiree who owns a Florida beach house, a Lady Bird deed is worth discussing with a Florida estate planning attorney as a straightforward way to keep that property out of ancillary probate.
North Carolina: More Limited Options
North Carolina presents a different situation. The state does not currently recognize transfer-on-death deeds for real estate in the same straightforward way that Georgia does. North Carolina law does allow TOD designations for financial accounts and securities, but real property options are more limited.
For a Georgia resident who owns a mountain cabin in North Carolina, the most reliable probate avoidance strategies are a revocable living trust or joint ownership with right of survivorship. North Carolina does recognize certain types of life estate deeds, and an estate planning attorney familiar with North Carolina law can advise on whether one of those tools makes sense for your situation.
Because the options are more restricted in North Carolina, this is a state where having a properly funded revocable living trust is especially valuable.
Do Not Forget About Conflicting State Laws
One issue that catches many people off guard is the possibility that different states’ laws could produce different outcomes for different properties. If you die without a will, Georgia’s intestacy laws determine who inherits your Georgia property, but North Carolina’s intestacy laws determine who inherits your North Carolina property. These laws are not identical. Depending on your family situation, the people who would inherit under one state’s rules may not be the same people who would inherit under another state’s rules.
Even with a will, different states have different rules about spousal rights, creditor claims, and estate taxes. This is why working with an attorney who understands multi-state estate planning is important. A single, well-drafted estate plan can account for the laws of every state where you own property and make sure your wishes are carried out consistently.
Practical Steps for Georgia Residents with Out-of-State Property
If you are a Georgia resident who owns real estate in one or more other states, here is a general framework for getting your affairs in order.
First, take an inventory of every piece of real property you own and note which state and county each one is in. Check how title is currently held on each property. Is it in your name alone? In joint names with a spouse? In a trust?
Second, talk to a Georgia estate planning attorney who has experience with multi-state issues. This attorney can evaluate your overall situation, draft the necessary documents, and coordinate with attorneys in other states as needed. If your out-of-state properties are in Florida or North Carolina, make sure your plan accounts for the specific rules and tools available in those states.
Third, actually execute the plan. If the strategy is a revocable living trust, the trust document needs to be drafted, signed, and funded. Funding means recording new deeds that transfer title from your name personally into the name of the trust. This step is often overlooked, and an unfunded trust is no better than no trust at all.
Fourth, review your plan periodically. Laws change, property values change, family circumstances change. Georgia’s TOD deed did not exist before July 2024. Who knows what new tools may become available in the coming years? A plan that was right five years ago may need updating today.
The Bottom Line
Owning property in multiple states is a common and perfectly reasonable thing for Georgia retirees to do. But it does add complexity to your estate plan, and ignoring that complexity means your family may end up dealing with multiple probate proceedings in multiple states at one of the most difficult times in their lives.
The tools to avoid this outcome already exist. Revocable living trusts, properly structured joint ownership, Georgia’s new TOD deed, and Florida’s Lady Bird deed can all play a role. The key is to take action while you can, work with qualified professionals who understand the laws of each state involved, and make sure your plan is actually implemented, not just discussed.
Your family will thank you for it.