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 takes 9 to 18 months and costs an average of $15,000 or more in attorney fees.
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. This is not theoretical. Georgia courts regularly allow creditors to attach a debtor’s interest in jointly-owned real 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 Creates a Capital Gains Problem
When you add your child as a joint tenant on your deed, you give them a share of the property at your original purchase price — not the current value. This is called a carryover basis.
Here is what that means in practice. You bought your home for $150,000 in 1995. It is now worth $500,000. You add your daughter to the deed as a joint tenant. She now owns a half-interest with a cost basis of $75,000 (half of your original $150,000 purchase price).
When the home is sold after your death, her half of the $350,000 gain — $175,000 — is taxable at capital gains rates. She pays tens of thousands of dollars in taxes she would not have owed if the property had passed differently.
If instead your daughter inherited the property through a trust or through your estate, she would receive a stepped-up basis equal to the fair market value at your date of death. The $350,000 gain disappears. No capital gains tax.
The difference between a carryover basis and a stepped-up basis can be worth more than the cost of setting up a proper estate plan.
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. If your joint tenant dies with their own estate issues, the process becomes more complicated.
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 — It Triggers the Medicaid Look-Back Period
Adding a joint tenant to your deed is a transfer of a property interest. Georgia Medicaid treats any property transfer made within 5 years of a Medicaid application as a potentially disqualifying gift.
If you add your child to your deed today and apply for Medicaid within 5 years to cover nursing home costs, Georgia will 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. 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 they may have just started a 5-year clock that affects their Medicaid eligibility. 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 funded with the property solves this. The joint tenancy can be severed by recording a new deed that transfers the property to the trust.
If the concern is the Medicaid look-back period, removing a joint tenant does not restart the clock — the original transfer date is what Medicaid examines. You need to speak with an elder law attorney about your timeline and options. 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 retitle the property into it. This removes the joint tenant from the picture, restores full control, and sets up complete probate avoidance at every death.
The Alternative That Solves All Five Problems
A revocable living trust solves all five problems with joint tenancy 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 a 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 — transfers into a revocable trust also trigger the look-back. But it eliminates the need to add joint tenants at all, so the look-back risk from joint tenancy is avoided going forward.
The Complete Family 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. The process takes 2 to 4 weeks from the strategy call to a fully funded trust.
