How to Create a Living Trust in Georgia

A living trust in Georgia is a document that transfers ownership of some or most of your assets into a trust where you continue to use them until they pass to your beneficiaries after you die. A living trust is a popular estate-plan option as it typically bypasses the probate process and can protect assets in the event of a divorce or bankruptcy.

Living trusts in Georgia

So, what is a living trust? A living trust is set up by the trustor, the person placing assets into the trust, for the sake of the beneficiary, the person who'll receive the trust after the trustor's death. The trustor assigns a trustee to manage and distribute the assets. You continue to live in your home, spend your money, and live as you normally would. Your beneficiaries only receive your assets after you die.

While it's common to name yourself as trustee, you can choose anyone. However, it's necessary to also name a successor trustee if you name yourself, so he or she can manage the trust after your death.

Irrevocable vs. revocable living trusts

A living trust can be revocable or irrevocable. A revocable trust can be altered or canceled by you at any time you choose and becomes permanent after your death. An irrevocable trust, like an irrevocable life insurance trust, can't be altered without court approval.

However, creating an irrevocable living trust in Georgia protects the assets in the trust from your surviving spouse if you wish to disinherit him or her. Georgia law also limits the amount a creditor can claim from assets that you've transferred into an irrevocable trust. 

When to use a living trust

There are many reasons one might create a living trust in Georgia. A living trust can supplement or replace a will, help your estate avoid probate, protect your assets from creditors, and, in some cases, minimize estate taxes.

For example, if you own property in multiple states, you may have to create a will and name an executor for each state where your property is located. Creating a living trust can help you avoid these complications because they're valid in every state.

Additionally, in the event that you become incapacitated, a living trust allows your trustee to manage your estate plan on your behalf according to the instructions you've laid out in your living trust. Make sure to include provisions in your trust for managing assets if you become incapacitated.

Probate in GA

Georgia has not adopted the Uniform Probate Code that simplifies the probate process and its procedures are not simplified. A revocable living trust allows your assets to be distributed immediately upon your death if you wish.

Benefits of setting up a living trust in Georgia

A living trust is one option to consider as part of your estate planning. There are many potential benefits for creating a living trust in Georgia, including the following.

Avoid probate

One of the reasons a revocable living trust is so popular is that assets in the trust do not have to go through probate. If you can place most or all of your assets in trust, a probate proceeding may not be necessary at all, saving the cost of an executor and attorney, as well as avoiding the long wait for the probate process to conclude.

Keep your estate plan private

An additional benefit is privacy. When a will is probated, it goes through a court proceeding and becomes public record. Trusts are completely private and do not need a court to enact them. The terms of the trust, beneficiaries, and assets are not public record. Trusts are also more difficult to contest than wills.

Avoid guardianship and conservatorship

Creating a living trust in Georgia protects not only your assets, but you personally. If you ever become mentally incapacitated, the trust already provides for management of your assets and use of them for your benefit. No conservatorship proceeding may be necessary if the trust has been funded sufficiently.

Prevent court control of assets

When you create a revocable living trust in Georgia, you place yourself completely in control of your assets during your life and after your death. The terms of the trust specify when and how your beneficiaries are gifted your assets and you can set up dates or conditions for disbursement, managing and protecting your family’s future for years to come. If you die without a will or trust, your assets are distributed by Georgia intestacy statutes, which determine which relatives get what.

Flexibility

If you choose a revocable living trust, Georgia law allows you to adjust or cancel it at any time. You also retain full control and use of your assets during your lifetime. In contrast to a will, a trust gives your trustee the legal authority to transfer your assets immediately after you've died without additional court approval.

Drawbacks of setting up a living trust in Georgia

While it's always best to discuss your unique circumstances with an estate planning attorney, the following are some of the basic disadvantages of creating a living trust in Georgia.

Managing a living trust takes time and effort

To transfer assets to your beneficiaries through a living trust, you first have to retitle those assets in the trust's name and file time-consuming paperwork, such as a power of attorney and healthcare directive. You'll also continue to manage those assets as long as you're the trustee.

Costs of creating a living trust

It's wise to create the trust with the help of an experienced attorney to help ensure your documents are accurate and your assets safely and smoothly transfer to your loved ones. In addition to the cost of legal advice, there's also the cost of creating new deeds and titles to transfer assets into your trust. That said, these upfront costs will be less than the price of probate.

You may still need a will

A living trust only contains what you've transferred into it. This means that without a will, any belongings that aren't included in your living trust won't be transferred to your loved ones in accordance with your wishes. Additionally, wills can dictate other important information, such as the name of a guardian for minor children. If you choose to create a living trust, consider also making a pour-over will.

How to set up a living trust in Georgia in 7 steps

Generally, a Georgia trust must convey intention by the trustor to create the trust, the trust property, a beneficiary, a trustee, and an outline of the trustee’s responsibilities.

1. Choose between an individual or joint trust

Trusts can be individual or joint. Spouses who share most of their property often prefer to create a joint living trust that can contain both individual assets as well as property they jointly own. Individuals or couples who prefer to keep their assets separate can create individual living trusts that only contain their personal property.

2. Decide what property to include in the trust

What you put in your trust should depend on your personal estate planning goals. If you're creating a trust to reduce probate costs for your beneficiaries, include items with the highest value. According to Georgia code 53-6-60, the default compensation for executors of an estate is a percentage of the estate's appraised value. Removing these items from your will can save your beneficiaries future costs.

The following are common assets to include in a trust:

• Real estate
• Business interests
• Stocks
• Financial accounts
• Life insurance policies
• Valuable artwork

3. Choose a trustee

The main difference between an estate executor and a trustee is that an executor only handles your assets once you die and distributes them under the supervision of a court. Conversely, a trustee manages trust assets during your lifetime and doesn't require court supervision during the distribution process. For that reason, a trustee should be someone who you, for lack of a better word, trust.

This person should not only be capable of successfully managing valuable assets but also someone who you believe will distribute them according to your wishes. If you assign yourself as the trustee and your spouse as the successor trustee, make sure to also name a secondary successor trustee to manage the trust should something happen to both you and your spouse.

4. Decide who will be the trust’s beneficiaries

Beneficiaries receive your assets through the revocable living trust. It's common to choose one's children or spouse as the beneficiaries. Who you name as your beneficiaries may impact the terms of your trust. For example, if your beneficiaries are minor children, you can specify what age you want them to receive full control of these assets and under what terms.

5. Create the living trust document

A trust is meant to ensure your assets are protected, and your loved ones are taken care of even after you’re gone. For that reason, it's not something you should create alone. Draft your trust with the help of an estate planning attorney, or save a bit of time and money by using LegalZoom's attorney-assisted service.

6. Sign the trust document in front of witnesses

Once you’ve written and finalized your trust, sign it in the presence of two witnesses and a notary public who should also sign the document. Then, store it somewhere safe where your trustee or successor trustee can access it.

7. Transfer property to the trust

The last step is to transfer ownership of your assets into your trust. How you do that depends on that asset. For example, you can retitle real estate through a quitclaim or warranty deed. Reach out to your bank to transfer financial assets and execute an “assignment of interest" to transfer business interests.

This process can be particularly complicated and involves a lot of moving parts. Seek advice from an attorney to help ensure deeds and titles are accurately filed.

Living trusts and estate taxes in Georgia

A revocable living trust doesn't allow you to circumvent estate taxes. However, Georgia doesn't have its own estate tax, which means that a Georgia living trust is only subject to federal estate tax. The current federal exemption is $13.99 million (if the year of death is 2025), and only estates worth more than that are taxed.

While a revocable living trust won’t help you avoid estate taxes, a spousal trust or an irrevocable living trust might. A spousal trust—such as an AB, QTIP, or marital trust— passes assets directly from one spouse to another and bypasses estate taxes. An irrevocable living trust—such as a charitable remainder trust—similarly removes assets from the value of your estate.

FAQs

How much does a living trust cost in Georgia?

The cost of setting up a living trust in Georgia will depend on how you set it up and the accompanying attorney fees. LegalZoom's service with an attorney review costs $549.

Does a living trust avoid probate in Georgia?

A living trust will avoid probate as long as it isn't contested. That said, living trusts are private. This means that beneficiaries are not automatically updated on who receives what from the trustor's estate and, therefore, are less likely to be contested.

Is it better to have a will or trust in Georgia?

Both wills and trusts are valuable options for your estate plan, and it's not uncommon to have both. While a living trust allows you to shield assets from probate, a will also allows you to do other things that you can't do with a trust, such as name a guardian for your children and appoint an executor for your estate who can distribute any assets not transferred into your trust.

Can I create my own living trust in Georgia?

Yes, you are legally allowed to set up your own living trust in Georgia. That said, doing so could cost your beneficiaries a substantial amount of money down the line if the trust isn't set up correctly. Oversight of your trust could force it into probate, potentially defeating the original purpose of creating the trust.

How much is a trustee paid in Georgia?

According to Georgia code 53-12-210, trustees receive compensation according to the terms of the trust. However, if no terms are set up dictating such terms, they're allowed 1% of the initial fair market value of the estate’s property and an annual fee based on the value of the assets in the estate (between 0.5% and 1.75%).

Brette Sember, J.D., contributed to this article.