Including Real Estate Located in Another State When You Create a Georgia Will

Disclaimer: This information is educational only and is not legal advice. Consult a licensed attorney in Georgia and in the state where the property sits before making final decisions.

Detailed Answer

If you live in Georgia and own a house located in another state, you may properly dispose of that house by a Georgia will. Georgia law allows a testator to devise property no matter where it is located. See O.C.G.A. Title 53 (Wills, Trusts, and Administration) for the statutes governing wills in Georgia: https://www.legis.ga.gov/. For information about Georgia probate procedures, see the Georgia Courts site: https://georgiacourts.gov/.

However, two practical legal issues arise when the property is out of state:

1. Validity of the will: A will that is validly executed under Georgia law will generally be recognized for the testator’s assets everywhere, but the will must meet Georgia’s formal requirements (signature and witnesses). Confirm the will follows Georgia execution rules found in Georgia statutes. If the will was executed in another state and valid there, Georgia may also accept it under statutory provisions recognizing foreign wills; check the statutes or get local counsel to confirm.
2. Probate and title transfer where the property is located (ancillary probate): Real property is ordinarily governed by the law of the state where it is located (the situs). Even if your Georgia will devises the out-of-state house to a beneficiary, that beneficiary will typically need to take steps in the state where the house sits to clear title and record the transfer. That often means opening an ancillary probate or filing the Georgia probate documents in the other state so the county recorder or land records will accept a deed transferring title to the beneficiary.

Typical steps to accomplish the transfer

1. Identify the property clearly in the will by street address and legal description (found in the deed). Ambiguity can cause disputes.
2. Name primary and contingent beneficiaries and specify whether they take outright, in trust, or subject to debts and mortgages.
3. Execute the will according to Georgia’s formalities so it is admissible in Georgia probate courts. See Title 53 of the Georgia Code for formal requirements: https://www.legis.ga.gov/.
4. At death, admit the Georgia will to probate in the Georgia probate court where you were domiciled. The personal representative appointed by the Georgia court can handle probate administration for Georgia assets.
5. For the house in the other state, the personal representative or beneficiary will usually need to initiate ancillary probate or a local procedure to have the Georgia will (and letters testamentary or administration) recognized in that state. The local county recorder or land office will often require proof from the local court before changing the deed.

Alternatives to simplify transfer of out-of-state real property

• Put the house into a revocable living trust and name successor trustees and beneficiaries. A trust often avoids probate in both Georgia and the other state, though you must retitle the deed into the trust while you are alive.
• Hold the property as joint tenants with right of survivorship or tenants by the entirety (if marriage and state law allow). Survivorship ownership often bypasses probate, but it has gift, tax, and creditor implications.
• Use state-specific tools such as a beneficiary/transfer-on-death deed if the state where the property sits offers that option. Not all states have this tool; check the other state’s laws.

Practical concerns your attorney will check

• Whether the will was executed properly under Georgia law and whether a foreign will needs additional steps for local recognition.
• Whether the other state requires ancillary probate to clear title to the real estate.
• Tax implications: federal estate tax rules or local state estate/inheritance tax rules where the property sits (if any).
• Mortgages, liens, homeowner association obligations, and unpaid taxes that can affect the transfer.
• Whether a trust or deed change before death would avoid ancillary probate and better accomplish your goals.

Helpful Hints

• Describe the property exactly. Use the legal description from the county deed records, not just the street address.
• Keep a current copy of the deed and mortgage information with your estate documents and tell your executor or agent where to find them.
• Consider consulting two attorneys: one licensed in Georgia (your domicile) for your will and probate planning, and one licensed in the state where the house is located to advise on local transfer steps.
• If you want to avoid ancillary probate, retitle the property into a properly drafted revocable trust while you are alive. A Georgia estate attorney can prepare a trust and transfer deed for you.
• Confirm whether the out-of-state property’s state allows beneficiary deeds or similar tools; if so, this can be a low-cost way to transfer the house at death without probate.
• Review beneficiary designations, joint ownership arrangements, and mortgages — changing ownership can trigger due-on-sale clauses, tax consequences, or other issues.
• Keep estate documents up to date after major life events (marriage, divorce, birth, death, sale of the property).

If you want next steps: gather the deed and mortgage documents for the out-of-state house, note where the house is located (county and state), and contact a Georgia estate attorney to draft or review a will or trust. Also ask the attorney to recommend or coordinate with local counsel in the state where the house is located so the transfer will be smooth at the time of death.