Author: Paul Black
Paul’s experience as the son of two parents with big health challenges is what led him to the work he does today and gives him first-hand knowledge of the challenges that many caregivers and family members face. After graduation from GSU Law, Paul was chosen from dozens of applicants nationwide as one of three 2010-2011 Borchard Foundation Law & Aging Fellows. Paul has been named as a SuperLawyers “Rising Star” in the area of Estate Planning and as a member of Georgia’s “Legal Elite” by Georgia Trend magazine.
What a Survivorship Deed Does In Georgia
A survivorship deed transfers a deceased owner’s share directly to the surviving co-owner without probate or court delays. Understanding how it works, when it applies, and what limits it carries can help you decide if it fits your situation.
A survivorship deed works differently from a standard deed, which carries no automatic transfer rights. The key difference is a legal concept called the right of survivorship, the built-in rule that says the last living owner gets everything the moment one owner dies.
In Georgia, this type of deed is used most often by married couples and close partners, but any two or more people can use it. Spouses, siblings, business partners, and friends can all hold property this way. There is no requirement that the owners be related.
How a Survivorship Deed Works Under Georgia Law
Georgia’s recognition of survivorship deeds is rooted in statute. For many years, the state defaulted to a tenancy in common when two or more people took title together. Under that arrangement, each owner’s share passes through their estate at death, and probate may be required. Georgia law changed this with O.C.G.A. § 44-6-190, which has allowed co-owners to hold property as joint tenants with right of survivorship since January 1, 1977, but only if the deed says so clearly.
The language in the deed matters. Georgia courts look at the exact words used. A deed that simply names two buyers does not create a right of survivorship. The document must state that the owners take title “as joint tenants with right of survivorship” or use similar clear language. Without that phrase, Georgia law treats the ownership as a tenancy in common.
One important limit: each joint tenant must hold an equal share. You cannot use this deed structure to give one owner a 60% interest and another 40%. If unequal shares matter, a different ownership structure may be the better fit.
When an owner dies, the survivor may record an affidavit of survivorship with the county deed office along with a certified copy of the death certificate, as maintained by the Georgia Superior Court Clerks’ Cooperative Authority. This clears title and confirms the transfer. The process is straightforward and keeps the property out of probate entirely.
When Complications Arise With a Survivorship Deed
Get Help Now with Probate Court.
A survivorship deed works well in simple situations. But some scenarios can shift the outcome in ways owners do not expect. These are the situations worth knowing about before you sign:
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Medicaid and asset protection: In Georgia, transferring property through a survivorship deed does not remove it from Medicaid asset calculations if a look-back period applies. The state may still count the property as an owned asset. Anyone planning for long-term care should review this carefully before using a survivorship deed.
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Divorce: If co-owners divorce, either party can convert the joint tenancy to a tenancy in common by filing an affidavit with the clerk of superior court, along with a copy of the final divorce or annulment order, under O.C.G.A. § 44-6-190(a)(4). This does not require a separate court action but does require a deliberate filing. Without that step, the survivorship right may remain in place.
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Unequal ownership: Survivorship deeds assume equal shares. If one owner contributes more to the property, that difference is not reflected when the property passes at death.
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Creditor claims: In Georgia, a creditor of a deceased co-owner has limited ability to attach a claim to property held with survivorship rights. But a creditor of the surviving owner may still pursue the property after it passes. This protects against some debts but not all.
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Estate tax planning: For larger estates, an estate planning attorney may recommend a revocable trust instead. A revocable trust can offer more control and flexibility than a deed alone.
How To Create a Survivorship Deed In Georgia
Creating a survivorship deed in Georgia involves several clear steps. Each one matters, and missing a step can cause problems down the road.
Step 1: Decide If This Deed Fits Your Situation
Not every property owner needs a survivorship deed. Think about who you want to own the property after you are gone and whether equal shares make sense for your situation. Both parties must agree to proceed.
Step 2: Draft The Deed
The deed must include specific language to create survivorship rights. Georgia courts look at the exact words used. Vague or missing language can defeat the purpose entirely. Working with an attorney at this stage reduces the risk of a defective deed.
Step 3: Sign Before a Notary
Both owners must sign the deed. Georgia law requires notarization for real property transfers. One notary session is usually all it takes.
Step 4: Record With The County
Georgia requires the deed to be filed with the Clerk of Superior Court in the county where the property sits. In DeKalb County, that is the DeKalb County Superior Court Clerk’s office. In Fulton County, that is the Fulton County Superior Court Clerk’s office. Filing fees are modest, and recording typically takes one to five business days.
Step 5: Confirm The Recording
Once filed, you will receive a stamped copy. Keep it in a safe place. This document is your proof that the deed is valid and on record.
The full process, from drafting to recording, often takes two to three weeks.
Have Questions About Survivorship Deeds In Georgia?
If you own property in Georgia and want to plan how it passes at death, speaking with an attorney early can help you understand your options. A survivorship deed may work well for your situation, or another tool, such as a revocable trust or a broader estate plan, may serve you better. When you are ready, you can explore your options with The Law Office of Paul Black.
Common Questions About Survivorship Deeds In Georgia
1. Can a survivorship deed be changed after it is signed?
Yes, but both owners must agree to make any change. One owner cannot remove or alter the deed alone.
2. Does a survivorship deed avoid all estate costs at death?
It skips probate for the property it covers, but it does not remove other estate costs like taxes or debts. Each estate is different.
3. Can a survivorship deed be used for any type of property in Georgia?
It works for real property such as a home or land, but not for bank accounts or vehicles. Those assets need other tools, like a beneficiary form or a trust.
4. What happens if both owners die at the same time?
Georgia courts apply a legal rule that treats each owner as having survived the other for purposes of property transfer. The outcome depends on the facts and the exact wording of the deed.
5. Do both owners have to live in Georgia for the deed to be valid?
The property must be located in Georgia, but the owners do not have to live there. Georgia law governs real estate based on where the property sits, not where the owners reside.