BUSINESS OWNER PLANNING
A will names who receives your Georgia business after you die. A revocable trust transfers it. Those are not the same thing. A will goes through probate — the business waits 9 to 18 months in court before anyone legally controls it. A trust transfers the business to the successor trustee on day one, with no court, no waiting period, and no management gap.
Find Out Where You Stand
Every Georgia business owner needs both a revocable trust and a will. They are not alternatives. They solve different problems. The question is not which one to get — it is whether your current documents actually transfer your business on the day you need them to, or whether they guarantee your business goes through 9 to 18 months of probate first.
For the general Georgia rules on wills versus trusts that apply to every estate, see our complete guide to wills versus trusts in Georgia.
There is one question that separates a trust from a will for a Georgia business owner: can the business transfer to the right person, on the right day, without a court?
A will cannot pass that test. A will is a set of instructions to the Probate Court. The business transfers when the court says it transfers — after a 9-to-18-month proceeding, not on the day the owner dies.
A revocable living trust passes that test. The trust holds the business interest. The successor trustee has authority from day one. No petition. No hearing. No waiting period. No creditor claim period. The business continues without interruption.
Everything else in the trust vs. will comparison for a business owner flows from this one distinction.
A revocable living trust transfers the LLC membership interest to the successor trustee on the day the owner dies — or on the day the owner becomes incapacitated, depending on the trust’s terms. The transfer is immediate, private, and requires no court involvement.
For this to work, the trust must hold the LLC interest. That requires two specific actions: (1) a formal assignment of the LLC membership interest to the trust, and (2) an operating agreement amendment naming the trust as the member and the successor trustee as the authorized manager. Without both steps, the trust does not protect the business. The interest remains in the owner’s personal name and goes through probate regardless of what the trust document says.
A trust also covers incapacity. When the trustee becomes incapacitated, the successor trustee steps in and manages the trust assets — including the LLC interest — without a court proceeding. This is the scenario the will cannot address at all.
A will names who receives the business after the owner dies. It appoints an executor to manage the estate. It provides instructions to the Probate Court for distributing the owner’s assets.
A will does not transfer the business directly. It does not give the named beneficiary authority over the business on the day of death. It does not accelerate the statutory probate timeline. It does not have an incapacity provision.
For a business owner, a will is necessary but not sufficient. The will acts as a backstop — catching any assets that were not placed in the trust or directed to a beneficiary by designation. A business owner who has only a will, with no trust, leaves their business exposed to probate for the full statutory timeline.
Business transfer speed: Trust = day one. Will = 9 to 18 months through probate.
Court involvement: Trust = none. Will = mandatory probate proceeding.
Privacy: Trust = private. Will = public court record, searchable by clients, vendors, and competitors.
Incapacity coverage: Trust = successor trustee steps in immediately. Will = no coverage; requires guardianship or conservatorship proceeding.
Cost: Trust upfront ($8,000 to $10,000 for a business succession plan) vs. probate cost ($30,000 to $70,000 in statutory fees alone). The trust typically costs less than the first year of probate attorney fees.
Operating agreement coordination: Trust requires a coordinated operating agreement amendment to transfer management authority. Will provides no management authority — the executor manages the estate, not the business.
An LLC membership interest and S-Corp shares are not simply property like a bank account or a piece of real estate. They carry management rights, voting rights, and specific transfer restrictions.
A will that leaves an LLC to a named heir transfers the economic rights — the right to distributions — but not necessarily the management rights. Under Georgia’s LLC statute, an heir who receives a membership interest through probate may receive only an “assignee” interest, without voting or management rights, unless the operating agreement specifically grants full membership to transferees.
An S-Corp adds further complexity: an S-Corp can lose its S-Corp election if the shares pass to an ineligible shareholder during probate. A trust that qualifies as an Electing Small Business Trust (ESBT) or Qualified Subchapter S Trust (QSST) maintains the S-Corp election; a probate estate may not.
A trust and a will are not alternatives — they work together. The trust transfers assets that are in it. The will catches assets outside the trust and directs them into it at death (this is called a pour-over will). Together, the trust handles the business transfer immediately, and the will ensures nothing falls through the gaps.
A Georgia business owner who has only a trust is slightly exposed — any asset not titled to the trust or directed by beneficiary designation goes to whoever Georgia’s intestacy law says it goes to. A business owner who has only a will has no probate protection for anything. The complete solution requires both, designed together from the start.
See what a complete business succession plan costs for the full pricing breakdown including the trust, operating agreement amendment, and pour-over will.
HOW IT WORKS
We ask one question: if you died today, would your business transfer to the right person, on the right day, without a court? The answer to that question determines exactly what documents you need and what they must say.
We draft the revocable trust, coordinated pour-over will, operating agreement amendment, and durable power of attorney. Trust handles the business transfer. Will catches everything else. Both are designed to work together from day one.
The LLC interest is assigned to the trust. The operating agreement is amended. You test the transfer: does the successor trustee have authority from day one? When the answer is yes, the plan is complete.
Georgia Estate Planning Attorney
Melissa Breyer is a Georgia-licensed estate planning attorney focused exclusively on trust-based planning for individuals and families. She personally meets with every client and designs every plan from scratch. No templates. No associates handling your case. Every plan is built for your specific family, your specific assets, and your specific wishes.
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The whole process of creating a family trust felt simple, clear, and stress-free. We really appreciated how patient, helpful, and easy to communicate with the team was throughout everything. Shawn and Melissa gave us great guidance and helped us feel confident every step of the way. We're grateful for their support and would definitely recommend them.
After my father passed away, my mother had to rely on my father's employer to navigate the estate. It was a disaster. After this experience, I knew I needed a plan. I turned to Atlanta Estate Planning Attorneys to set up a trust. I no longer have to worry about my wife and children going through a difficult process if something happens to me. I highly recommend Atlanta Estate Planning Attorneys!
My biggest fear was that if I died first, my wife would have no idea how to navigate the estate and legal system. I reached out to Atlanta Estate Planning Attorneys and they put my mind at ease immediately. Their process is easy to follow and they took care of everything. Atlanta Estate Planning Attorneys is the best decision I've made for my family's future.
Working with Melissa Breyer to set up our Living Trust was one of the best decisions Scott and I have made. We did this so our boys are protected from confusion and chaos if something happens to us. Melissa was knowledgeable, patient, and made what felt overwhelming completely manageable. I would absolutely recommend Melissa Breyer.
Working with Shawn and Melissa at Atlanta Estate Planning Attorneys has been an excellent experience. They asked great questions during our initial call and clearly explained what we needed. We feel confident we're in good hands and would highly recommend them.
Both — they solve different problems and work together. A revocable living trust transfers the LLC membership interest to the successor trustee on the day the owner dies, with no court and no probate. A pour-over will catches any asset that was not in the trust and directs it into the trust at death. A business owner who has only a will leaves the business exposed to 9 to 18 months of probate. A business owner who has only a trust is exposed on any asset not titled to the trust. The complete solution requires both, designed together.
No. A will directs who receives the LLC interest after probate — it does not transfer the interest outside of probate. The named beneficiary receives the LLC interest only after the Probate Court approves the distribution, which takes 9 to 18 months and costs $30,000 to $70,000 in attorney and executor fees. The only way to transfer a Georgia LLC interest outside of probate is to hold it in a revocable living trust before the owner’s death, with a coordinated operating agreement amendment naming the trust as the member.
Yes. An S-Corp can lose its S election if the shares pass to an ineligible shareholder — including an estate that holds the shares too long during probate. A trust that qualifies as an Electing Small Business Trust (ESBT) or Qualified Subchapter S Trust (QSST) maintains S-Corp eligibility. An estate in probate may not qualify, particularly if the proceeding extends beyond the period Georgia and the IRS allow for an estate to hold S-Corp shares. Georgia S-Corp owners should confirm their trust qualifies as an ESBT or QSST before using it to hold S-Corp shares.
A revocable living trust transfers the LLC interest through two coordinated steps that must happen before the owner’s death: (1) a formal assignment of the LLC membership interest to the trust, making the trust the legal member of the LLC, and (2) an operating agreement amendment naming the trust as the member and the successor trustee as the authorized manager. When the owner dies, the successor trustee already holds the interest and already has management authority. No probate court involvement is required. If either step is missing, the transfer reverts to probate.
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