How property passes at death: probate vs. non-probate transfers (Georgia)

There are two basic ways title to a house can move when an owner dies:

• Non-probate transfer (passes outside probate). The property automatically passes to someone else by operation of law or by a recorded instrument that names a beneficiary. Common examples in Georgia include: joint tenancy or tenancy by the entirety with right of survivorship, and valid beneficiary/transfer-on-death arrangements. When title already contains a survivorship right or a valid payable-on-death/transfer-on-death designation, courts do not need to administer the house as part of the decedent’s probate estate.
• Probate asset (goes through the estate). If the decedent owned the house solely in their name and there is no survivorship or beneficiary designation, the house usually becomes part of the probate estate and must be handled through probate administration under Georgia probate rules.

For more on Georgia probate and property law, see the Official Code of Georgia Annotated (Titles covering Probate and Property) via the Georgia General Assembly: https://www.legis.ga.gov/ (search O.C.G.A. Title 53 for probate and Title 44 for property).

Typical fact patterns and why a house might not be a probate asset

Below are common scenarios and the practical effect on whether a house is a probate asset:

• Joint tenancy with right of survivorship: If the decedent and another person (for example, spouse or child) held title as joint tenants with right of survivorship, the surviving joint tenant automatically owns the property when the other dies. That transfer occurs by operation of law and generally avoids probate for that asset.
• Tenancy by the entirety: Married couples may hold real property as tenants by the entirety in Georgia. On the death of one spouse, the surviving spouse becomes sole owner without probate for that asset.
• Transfer-on-death / beneficiary deed (if used): Some states allow a transfer-on-death deed or similar beneficiary designation for real property so the named beneficiary takes title at death. If Georgia law and the deed formalities were satisfied, the property passes outside probate. (Check the recorded deed and county recorder’s office to see if such a provision exists.)
• Will naming a devise: A will directs who gets probate assets but does not avoid probate. If the house is in the decedent’s name alone and not subject to survivorship or a beneficiary deed, it typically must be probated even if the will gives the house to someone.

Does the mortgage disappear if the house passes outside probate?

No. A mortgage is a lien attached to the property. Whether the owner changed by operation of law or through probate, the mortgage lien generally continues to encumber the property. The key point is who holds title and whether that person(s) will make or arrange for payments. If payments stop, the lender may pursue foreclosure against the property regardless of how the title passed.

Can you make mortgage payments to avoid foreclosure without the administrator’s help?

Yes—often you can. But the practical and legal implications differ depending on the situation:

• If the house passed outside probate and you now hold title (for example, survivorship): As the new owner, you have the legal standing to make payments and to negotiate with the lender. Keep records of payments. Notify the lender of the decedent’s death and provide a death certificate and proof of your ownership (recorded deed or title search) if requested.
• If the house is a probate asset and the estate has an administrator/executor: The administrator has authority to manage estate property, pay debts, and, if necessary, keep mortgage payments current while administering the estate. Beneficiaries or heirs can pay the mortgage on their own, but they should be careful: a payment by an individual who is not an owner or the appointed personal representative can have different consequences (it may be treated as a personal loan, a gift, or a claim on the estate). If the estate is insolvent, creditors’ rights and estate administration rules apply under Georgia probate law (see O.C.G.A. Title 53).
• If you are not on title but want to avoid foreclosure: Call the lender immediately. Provide the account number and a death certificate. Ask what documentation they need and whether the loan may be assumed, modified, or put into forbearance while title or probate is resolved. The lender cares about payment; many lenders will accept payments from someone who is not yet the official owner if you coordinate with them, but they may require clear evidence of who has the right to keep the property (probate paperwork, recorded deed, or court authorization).

Important: If you make payments as an heir or third party while the property is still part of an estate, document the payments carefully and get written confirmation from the lender about how those payments will be treated. You may want a written repayment agreement or a court order authorizing actions if the estate is insolvent or disputed.

Practical steps you can take right now

1. Locate the deed and title documents. Check county records to learn how the decedent held title.
2. Contact the mortgage servicer immediately. Give them the decedent’s name, loan number, and a death certificate. Ask about current balance, payment status, options to avoid foreclosure (forbearance, loan modification, short-term grace), and what documentation they require.
3. Determine whether the property passed outside probate (survivorship, beneficiary deed) or is part of the estate that needs an administration. If you’re unsure, get a title search or talk to a probate attorney.
4. If the estate is open, talk to the appointed administrator/executor. If no administrator has been appointed and the house is a probate asset, someone may need to open probate to give an administrator authority to manage or sell the property.
5. Document any payments you make. Keep receipts, copies of checks, bank statements, and written confirmation from the lender that payments were applied and the effect on foreclosure proceedings.
6. Consider consulting a Georgia probate or real estate attorney to protect your interests—especially if the estate is insolvent, multiple heirs contest ownership, or foreclosure is imminent.

Risks and special issues to watch for

• Accelerated payments / lender actions: If the decedent had covenants in the mortgage that permit acceleration or other remedies on certain transfers, the lender may review the situation closely. Lenders may have specific procedures when a borrower dies.
• Estate insolvency: If the estate lacks funds to pay debts, the administrator must follow Georgia probate procedures for notifying creditors and may have to sell property to pay secured and unsecured creditors. Heirs who personally pay mortgage payments might later need to seek reimbursement from the estate—or may be treated as unsecured creditors without a priority claim—so get legal advice.
• Disputes among heirs: If multiple people claim rights to the property, the lender may refuse to accept unilateral instructions from one person if title or administration is unresolved.

Helpful hints

• Act fast. Foreclosure timelines continue even after an owner dies. Contact the lender as soon as possible.
• Get the death certificate and certified copies—lenders and courts will request them.
• Search the county land records to confirm how the property is titled (survivorship, deed, beneficiary language, etc.).
• Ask the lender whether the loan is assumable or if there are short-term relief options while you sort title or probate matters.
• If you pay the mortgage as a non-owner, get everything in writing about how the payment will be treated and whether you have any future claim against the property or the estate.
• When in doubt, consult a Georgia attorney who handles probate and real estate—especially if foreclosure is imminent or heirs disagree.

Where to learn more and statutory references

Georgia’s laws on probate and property are codified in the Official Code of Georgia Annotated. For a general starting point, search the Georgia General Assembly site for O.C.G.A. Title 53 (Probate) and Title 44 (Property/Real Estate): https://www.legis.ga.gov/