Bulletin: GA2024004

Dear Associates:

O.C.G.A. Section 44-17-1, et seq. (the "Act") authorizes a new type of deed in Georgia, known as a Transfer on Death Deed (TODD). The Act became effective on July 1, 2024. The requirements of a TODD are set forth in O.C.G.A. Section 44-17-2.

A TODD is a legal means of transferring an Interest in Real Estate (as defined in O.C.G.A. Section 44-17-1, hereinafter “Property”) effective upon the grantor’s death. Prior to death, an owner of Property located in Georgia (the “Grantor”) may make a non-testamentary transfer on death to a designated grantee (“Grantee Beneficiary”) by executing and recording a TODD, which transfer will not become effective until the death of the Grantor. The form for a TODD is included in the Act at O.C.G.A. Section 44-17-3. A TODD does not sever joint tenancy (see O.C.G.A. Section 44-17-6).

O.C.G.A. Section 44-17-2 Requirements. A TODD is void unless it:

1. Meets the requirements set forth in OCGA Section 44-2-15 and attested by another witness (O.C.G.A. Section 44-5-30) (same execution formalities as deeds);
2. Is recorded in the county where the Property is located prior to the Grantor’s death; and
3. Is in substantially the same form found in O.C.G.A. Section 44-17-3.

If the requirements of a TODD are met and there is no revocation or amendment filed pursuant to O.C.G.A. Section 44-17-4, then upon the death of the Grantor, the Grantee Beneficiary must execute an affidavit pursuant to O.C.G.A. Section 44-17-2 (c) and (d) within nine months of Grantor’s death or the interest will revert to the Grantor’s estate. Pursuant to O.C.G.A. Section 44-17-5 (a) the Grantee Beneficiary takes the property free and clear of any claims or interest as to a person who became the spouse of the Grantor subsequent to the execution of the TODD, subject to all recorded conveyances, assignments, contracts, mortgages, liens, and security pledges made by the Grantor or to which the Grantor was subject during the lifetime of the Grantor including, but not limited to, any recorded executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, and to any interest conveyed by the Grantor that is less than all of the Grantor’s interest in the Property; provided, however, that a nonconsensual lien against the Grantee Beneficiary shall not attach to the Property until the recording of the affidavit described in O.C.G.A. Section 44-17-2. Given that there is a time period that must pass for both claims made by creditors and a time period to contest the validity of a TODD, you will need to add certain requirements and exceptions to your title commitments and if necessary, to final title policies in transactions involving a TODD.

Please note the following underwriting guidelines and requirements:

• For a Grantor refinance, who has executed a TODD, disclose the TODD on Schedule B, Section II as a note rather than a special exception. This note will not need to appear on a loan policy. See O.C.G.A. Section 44-17-7: “A record owner who executes a transfer-on-death deed shall remain the legal and equitable owner until the death of such record owner, and during his or her lifetime shall be considered an absolute owner with regard to creditors and purchasers.”
• For a Grantor sale, who has executed a TODD and is still alive, include a requirement for the revocation of the TODD. We believe this is the best practice going forward even though O.C.G.A. Section 44-17-7 considers a Grantor an absolute owner.
• If the Grantee Beneficiary is a party to your transaction require (i) an affidavit pursuant to O.C.G.A. Section 44-17-2 (the “Affidavit”) must be recorded prior to closing, (ii) the Affidavit must be recorded within nine (9) months of Grantor’s death and (iii) title run on both Grantor and Grantee Beneficiary.
• If a prior owner has executed a TODD that has not been revoked, please contact a Stewart Title Guaranty Company underwriter.
• For a Grantee Beneficiary sale or refinance, evidence satisfactory to the Company that the Grantor’s estate is not subject to Federal Estate Tax Liens.
• If you are asked to insure a sale or a refinance transaction of the Property less than two (2) years after the death of the Grantor, please contact a Stewart Title Guaranty Company underwriter, as we may require probate.
• If you have reason to believe that the Grantor lacked capacity at the time of execution of the TODD, executed the TODD under duress or undue influence, or if there are circumstances which may affect the validity of the execution of the TODD, please contact your underwriter.

While our goal with this bulletin is to provide you with as much guidance as possible, please do not hesitate to reach out to your underwriters as soon as you see a TODD in your chain of title for assistance in closing transactions involving the Act.

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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