Tenants in Common vs. Trust in Georgia

Tenants in Common: What Georgia Says You Own Right Now

If two or more names are on a Georgia deed and the deed does not use survivorship language, Georgia treats it as a tenancy in common. That is the default, and it is written into O.C.G.A. § 44-6-120. The statute says a tenancy in common is created any time two or more people are entitled to possess the same property at the same time, unless the document says otherwise.

That same section adds two things people get wrong. Shares are presumed equal unless the deed says they are not. If you put in 70 percent of the down payment but the deed says nothing about percentages, the law starts from the assumption that you and your co-owner each own half. And owning the larger share does not give you better rights to use the place. A 75 percent owner and a 25 percent owner have the same right to walk in the front door.

What you hold is an undivided share. You do not own the kitchen while your sister owns the garage. You own a percentage of the whole thing. That share is yours to sell, to borrow against, and to leave to someone in your will. It is also the piece of your Georgia estate plan that a deed alone cannot finish.

One warning, because it comes up constantly. Section 44-6-120 says nothing about what happens when an owner dies. It only sets the default form of ownership while everyone is alive. Death is governed by other parts of Georgia law, and that is where the real difference between a deed and a trust shows up.

The One Thing Your Deed Does Not Do

A tenancy in common does not avoid probate. When you die, your share becomes part of your estate, and your estate goes through Georgia probate court. Your co-owner keeps their share and is not dragged into your case, but your half is now controlled by your estate’s personal representative, not by the person you left it to.

Under O.C.G.A. § 53-8-15, title to estate property sits with the personal representative until that person formally assents to passing it on. In plain terms, your named heir does not actually own your share on the day you die. They own it once the personal representative assents to the transfer, which for real estate is normally done by a deed. Georgia law does not set a deadline for that step, and an heir can ask the probate court to compel it once a year has passed since the personal representative qualified.

Having a will does not skip this step. A will is a set of instructions for the probate court. It tells the judge where your share should end up. It does not keep the share out of the courthouse. Without a will, Georgia’s intestacy rules pick your heirs for you, and the case still runs.

The cost of that is real. A simple Georgia estate averages about $14,700 in attorney and court costs and about 13 months from start to finish. Those figures move with the size and the mess of the estate, and we break the ranges down in our guide to what probate costs in Georgia. For a co-owned house, those 13 months are the window when selling or refinancing your half takes an extra layer of court and executor approval. Your co-owner is stuck waiting on a court case they are not a party to.

What Changes When Your Share Sits in a Trust

A revocable living trust is a container you create, control, and can change or cancel at any time while you are alive. You are normally your own trustee. When your share is deeded into that trust, the trust owns it, and the trust does not die when you do.

Three things change:

Your share skips probate. There is no court case for that asset because the owner on the deed is still standing after your death. The person you named as successor trustee takes over and follows your written instructions.

You control the timing, not just the destination. A will hands your share over in one piece. A trust can hold it, let a spouse live there for life, sell it and split the money, or hand it to a child at 30 instead of 18.

It covers you while you are alive too. If you have a stroke and cannot sign, your successor trustee can act on the property immediately. Without a trust, your family may need a Georgia probate court to appoint a conservator before anyone can touch your share.

What does not change is your daily life. You still live there. You still deduct what you deducted. You still file the same tax return, because a revocable trust uses your own Social Security number while you are alive.

Your Deed After the Transfer: Part Trust, Part Co-Owner

This is the part that confuses people most. The county records end up split, with your trust on one side and your co-owner still on the other.

You sign a new deed that conveys your undivided share, and only your share, from you as an individual to yourself as trustee of your trust. Your co-owner’s share is not mentioned and is not touched. After recording, the property is still held as a tenancy in common. One share belongs to your trust. The other still belongs to your co-owner personally.

A trust can absolutely hold title alongside a live human being. Georgia does not require both halves of a co-owned property to be titled the same way. The mechanics of that new deed are the same ones we walk through in our guide to putting a house into a trust without a lawyer in Georgia. Your co-owner can keep their share in their own name forever, put it in their own separate trust later, or do nothing at all.

The new deed gets recorded with the Clerk of Superior Court in the county where the property sits. In metro Atlanta that means Fulton, DeKalb, Cobb, Gwinnett, Clayton, or whichever county the parcel is actually in. City limits do not matter here. A home inside the City of Atlanta records in Fulton or DeKalb depending on which side of the line it sits on, not with the city.

You Do Not Need Your Co-Owner to Sign

You can move your own share into your own trust by yourself. Your co-owner does not have to agree, does not have to sign, and cannot block it.

The reason is the same reason a tenancy in common exists. Your share is separate property. You already have the right to sell it to a stranger, borrow against it, or leave it to whoever you name. Deeding it into a trust you control is a smaller move than any of those.

Compare that to the alternative people usually ask about. Converting the deed to joint tenancy with right of survivorship is a completely different job. That rewrites how both shares are held, so every owner has to sign a new deed together. If your co-owner says no, that option is dead. The trust route is not.

Tell them anyway. Not because you need permission, but because a recorded deed shows up in the county records, and a co-owner who finds out that way tends to assume the worst. If there is a mortgage or a shared insurance policy, a short heads up saves a phone call later.

What Does Not Change: Mortgage, Taxes, Insurance, Homestead

Most people stall here, worried the transfer will break something that currently works. Four things come up every time, and none of them is a reason not to do it.

Your mortgage does not get called due. Federal law, 12 U.S.C. § 1701j-3(d)(8), bars a lender from using a due-on-sale clause when a borrower transfers into a living trust in which the borrower is and remains a beneficiary, as long as the transfer does not change who has the right to occupy the property. Two limits matter. Both of those conditions have to hold, and that protection covers residential property with fewer than five dwelling units. A duplex or a single family home is covered. A 12 unit apartment building is not, and that is a conversation to have with the lender first.

Your capital gains outcome does not change. Under IRC § 1014, your share gets a full stepped up basis at your death, and it gets that step up whether the share was in your name or in your revocable trust. This is genuinely different from a survivorship deed. Adding someone to a deed during your life can be a gift of half the property, and a gifted half carries your old basis with it instead of getting stepped up. A tenancy in common share was never given away, so there is nothing to lose here. Funding it into a trust does not create a taxable event either.

Your title insurance generally follows the share. Most owner’s policies keep covering property moved into a trust created by the same owner. Generally is not always. Call the title company before you record and ask for written confirmation or a short endorsement.

Your homestead exemption can continue, but it is not automatic. O.C.G.A. § 48-5-54 extends homestead exemptions to homes titled in a trustee, but only if a beneficiary living on the property claims the exemption in the manner the law requires. That is a step somebody has to take, not something that happens on its own. Georgia bases the exemption on owning and living in the home as of January 1, and applications are filed with your county tax commissioner, or the tax assessor in some counties, by April 1. Metro Atlanta counties differ on the paperwork they want, and several ask for a copy of the trust. Call your county before you record, not in March of the following year.

What a Trust Will Not Fix

A trust solves the death problem. It does not solve the co-ownership problem, and any page that tells you otherwise is selling something.

It does not stop a partition action. Under O.C.G.A. § 44-6-160, any single co-owner can petition the superior court of the county where the land sits and ask the court for a writ of partition. Where a fair physical division is not practical, a Georgia partition case can end in a court-ordered sale with the proceeds split. No minimum share is required and the other owners do not have to agree. That is true whether your share sits in your name or in your trust. If the tract sits in more than one county, which happens on parcels straddling metro Atlanta county lines, the petition can go to any of those counties. We cover that process in detail in our guide to getting out of a tenancy in common in Georgia.

It does not protect your share from your own creditors. Georgia treats a revocable trust as see through while you are alive. O.C.G.A. § 53-12-82(a)(2)(A) lets your creditors reach trust property you can revoke, exactly as if you still held it outright. A revocable trust is a probate tool, not an asset protection tool.

It does not shield you from your co-owner’s debts. If someone wins a judgment against your co-owner, that creditor can go after your co-owner’s half. Your half is not their target, and your trust keeps it that way. But if that half ever changes hands to settle the debt, the new owner steps into your co-owner’s place on the deed, with the same right under O.C.G.A. § 44-6-160 to ask a Georgia superior court for a writ of partition. A co-owner you did not choose can start that case.

It does not reach your co-owner’s half. If your co-owner dies with their share in their own name, their half still runs through probate. Your trust cannot fix their planning. It only keeps your half out of the mess.

How to Move Your Share Into a Trust

The transfer itself is a short list of steps, and most of the work is deciding what you want rather than paperwork.

Which One Fits Your Situation

Leaving your share as a plain tenancy in common can be the right answer. It usually is when the share is small, when the co-owner is the same person who would inherit it anyway, or when the property is already headed for sale. Probate on a modest share is a cost, not a catastrophe, and paying to avoid it does not always pencil out.

A trust usually earns its keep in three situations.

You own with someone who is not your spouse. A sibling, a friend, or an unmarried partner. You want your share to go somewhere specific instead of into a default.

You want to control the timing, not just name a recipient. A trust can hold the share, stagger it, or attach conditions that a deed cannot.

The share is worth enough that 13 months of probate would genuinely hurt. The bigger the share, the more the delay costs the people waiting on it.

The property sits in another state. A Georgia probate court has no authority over land in Florida, North Carolina, or Tennessee. If your co-owned share is out of state and stays in your own name, your family can end up with a second probate case in that state on top of the Georgia one. Two courts, two sets of filings, two timelines. A trust holds the share no matter which state the land is in, so there is one set of instructions and no second courthouse.

On cost, know that this is two line items, not one. A revocable living trust with Atlanta Estate Planning is $3,500, which covers the trust and the supporting documents. Anyone quoting you one number for both is leaving something out.

Moving a property into it is separate, at $550 per deed. That is a distinct piece of work: drafting the deed, matching the legal description, and recording it with the right county. Our full breakdown of what a revocable living trust costs in Georgia shows how the add-ons stack.

If you are not sure which side of that line you are on, that is exactly what a first call is for. Bring your deed. Most of the answer is written on it.