Problem 1 — Joint Tenancy Only Avoids Probate Once
This is the most important problem with joint tenancy in Georgia, and the one most people do not find out about until it is too late.
When you hold property as joint tenants with right of survivorship in Georgia under O.C.G.A. § 44-6-190, the property passes automatically to the surviving joint tenant when the first owner dies. No probate. That part works correctly.
The problem is what happens next. The surviving joint tenant now owns the property alone. They have no joint tenant to pass it to. When they die, the property goes into their estate and through the full Georgia probate process, which in the simple cases we’ve handled has taken 13 months and cost families $14,700 in attorney and court costs.
Joint tenancy solves probate for the first death only. For the family who added a spouse to the deed specifically to avoid probate, that goal is only half-accomplished.
For a full overview of how joint tenancy works in Georgia before and after death, see Joint Tenants With Right of Survivorship in Georgia.
Problem 2 — Your Joint Tenant’s Creditors Can Reach the Property
When you add someone to your deed as a joint tenant, you give them a present ownership interest in the property. That interest belongs to them now, and their creditors can reach it.
If the person you added has a lawsuit filed against them, a business that goes bankrupt, or a divorce proceeding, their share of your property is an asset available to the court or their creditors. A creditor who wins a judgment against your joint tenant can record it against their share of the property.
This is especially common when parents add adult children to their deed. A child who owns a business, has significant debt, or goes through a difficult divorce can drag your home into their legal problems.
You had no say in their financial situation. But you gave them an interest in your property that creditors can now pursue.
Property held in a properly funded revocable living trust does not have this problem. You do not need to add another person to take title. The trust owns the property, and the successor trustee takes over when you die without any transfer of present ownership.
Problem 3 — Adding a Child Can Create a Capital Gains Problem
Adding a child to your deed can leave them with a capital gains tax bill. Whether it does depends on how the deed is written and what happens before you die.
Two tax rules are in play. Property your child inherits at your death gets a stepped-up basis. Its cost basis resets to what it is worth on the day you die. Property your child gets as a gift during your life usually keeps your original purchase price. This is called a carryover basis.
Say your deed creates a joint tenancy with right of survivorship. You paid for the home, and you die first. Federal law then counts the whole home in your estate (26 U.S.C. § 2040(a)). In that case the whole home gets a stepped-up basis.
That result can be lost. If the deed leaves out Georgia’s survivorship wording, you and your child own the home as tenants in common. Your child’s half can then keep your original purchase price. If the joint tenancy is ended before you die, your child’s gifted share can keep your original purchase price. If you deed the whole home to your child, all of it can keep your original purchase price. Your child also needs records that show you paid for the home. If you keep living in the home after you give a share away, the tax result can be different. Get advice before you count on either outcome.
A carryover basis can cost your child real money. Say you bought your home for $150,000 in 1995. It is now worth $500,000. If your daughter’s half keeps a carryover basis, her cost basis in that half is $75,000. If the home sells for $500,000, $175,000 of gain on her half can be taxed.
If your daughter instead inherits the home through a revocable living trust or through your estate, she gets a stepped-up basis on all of it. That result does not depend on deed wording or on a joint tenancy staying in place.
Problem 4 — You Cannot Change the Plan Without Their Signature
Once you add someone to a deed as a joint tenant in Georgia, you cannot remove them, sell the property, or refinance it without their cooperation.
Every joint tenant must sign any deed that conveys the property. Every joint tenant must sign most mortgage refinancing documents. If your joint tenant refuses to sign, the transaction cannot close. If your joint tenant becomes incapacitated, their legal guardian or agent must be involved.
You gave up control of your property the moment you signed the deed.
Relationships change. People who seem like obvious choices to add to a deed (an adult child, a trusted sibling) can become unavailable, uncooperative, or legally constrained in ways you did not anticipate. The deed does not change because the relationship changed.
A revocable trust, by contrast, gives you complete control during your lifetime. You can amend it, revoke it, change the successor trustee, or sell property in the trust at any time without another person’s consent. See how this works through the deed transfer into your trust process.
Problem 5 — Medicaid Can Look Back at the Transfer for Five Years
Adding a joint tenant to your deed is a transfer of a property interest. When you apply for Medicaid to pay for nursing home care, Medicaid looks back five years. A transfer in that window for less than the property is worth can count as a gift. Adding your spouse does not cause a penalty.
If you add your child to your deed today and apply for Medicaid within 5 years to cover nursing home costs, Georgia can calculate a penalty period. The penalty is determined by dividing the value of the transferred interest by the Georgia penalty divisor, $11,122 per month as of April 2026.
If the transferred half-interest was worth $200,000, the penalty period would be roughly 18 months at today’s rate. During those 18 months, Medicaid will not cover nursing home costs even if you otherwise qualify. You or your family must pay out of pocket.
Most people who add a child to their deed do not realize it is a gift, and that Medicaid can count the gift against them if they need nursing home care within the next five years. This is one of the most serious hidden consequences of joint tenancy as an estate planning tool.
What to Do If You Already Own Property in Joint Tenancy
If your property is already titled in joint tenancy, you have options, but the right one depends on which problem matters most to you.
If the primary concern is completing probate avoidance, you need to address what happens when the surviving joint tenant dies. A revocable trust that holds the whole property solves this. To put the whole property in your trust, every owner has to sign the deed. You can record a deed of your own share by yourself, and that ends the survivorship feature. But the other owner still owns their share, and the two of you become tenants in common.
If the concern is capital gains taxes, be careful how you undo it. Leaving a survivorship deed in place can give your child a stepped-up basis on the whole home. Deeding only your own share into a trust can cost your child the step-up on their half. If your child deeds their share back to you, that is a gift from your child to you. It may need a gift tax return. And if you die within one year, the step-up on that half can be lost when the home goes back to that child.
If the concern is the Medicaid look-back period, what matters is whether the gift comes back to you. If your child deeds their whole share back to you, that does not start a new five-year period. Georgia’s Medicaid manual treats a gift that is fully given back as if it never happened. You then own the whole home again, so it counts as yours. Deeding only your own share into a trust does not undo the gift. Speak with an elder law attorney about your timeline and options before anyone signs. See what happens when no Medicaid planning is done in our article on what happens without Medicaid planning in Georgia.
If the concern is creditor exposure, the joint tenant’s interest in the property is already established. A new deed removing them would help going forward, but prior judgments or liens may already attach. The specifics depend on when the creditor issue arose relative to when the joint tenancy was created.
In most cases, the cleanest fix is to create a revocable trust and have every owner sign a deed that moves the whole property into it. That takes the joint tenant off the title, gives you back full control, and avoids probate at each death for the property in the trust. Ask about the tax and Medicaid effects before anyone signs.
The Alternative That Avoids All Five Problems
A revocable living trust avoids all five problems with joint tenancy in Georgia. For a side-by-side look at the two, see JTWROS vs. Revocable Trust in Georgia.
Probate at every death: A properly funded trust passes property to your beneficiaries without probate, not just at the first death, but at every death in the succession plan.
Creditor exposure: You do not need to give anyone a current ownership interest. The trust owns the property; you control the trust. No present interest for creditors to attach.
Capital gains basis: Beneficiaries who inherit property through your revocable trust at your death receive a stepped-up basis equal to fair market value. The capital gains accumulated during your lifetime disappear.
Loss of control: You can amend, revoke, or change the trust at any time during your lifetime. No other person’s consent is needed to sell, refinance, or restructure.
Medicaid look-back: A revocable trust does not help with Medicaid planning on its own. Assets in a revocable trust still count as yours when Medicaid looks at what you own. If you ever need Medicaid to pay for a nursing home, your home may need to go back into your own name before you apply. That is a simple deed, and it does not cause a Medicaid penalty. But a trust eliminates the need to add joint tenants at all, so the look-back risk from joint tenancy is avoided going forward.
The Finished Trust (our complete trust package) at The Hive Law is a flat-fee service that includes the trust, all supporting documents, and the deed transfer to fund the trust with your home. You’ll have your documents to review about 2 to 3 weeks after your Design Meeting. Getting your home into the trust takes about 6 to 9 weeks in all, depending on how quickly you finish your review.
If you are not sure whether you actually have joint tenancy or tenants in common, see Joint Tenancy vs. Tenants in Common in Georgia first. If your property is tenants in common, compare that path directly against a trust in Tenants in Common vs. Trust in Georgia.
