Tenants in Common vs. Trust in Georgia: Which One Actually Protects Your Share?

Tenants in common is Georgia's default way to co-own property, and it does not avoid probate. A revocable trust can hold your share instead, so it passes to your beneficiaries without a Georgia probate case. Funding your share into a trust changes how it passes at death, not how you use the property today.

By Melissa Breyer, Esq. 10 min read

Find Out Where You Stand

If you co-own property in Georgia, you are probably tenants in common right now. Most people never chose this. It is what Georgia law does by default. Tenants in common does not avoid probate. When one owner dies, that owner’s share goes to Georgia probate court. This is true even if they owned the property with someone else. A revocable living trust changes that. It typically costs $3,500 in Georgia. Once your share is inside it, that share goes straight to the people you choose. No probate case is needed.

You do not need your co-owner’s permission to do this. Funding your own share into your own trust is your choice alone. It does not change how you and your co-owner use the property today. It only changes what happens to your share later.

This page compares tenants in common and a revocable trust side by side. It covers what happens to your share if you die without a trust. It covers whether a trust changes your capital gains taxes. It covers what a trust does not fix, and how to actually fund your share into one.

Tenants in Common: What You Already Have by Default

Georgia treats every co-owned property as tenants in common. This happens unless the deed uses specific survivorship words. Under O.C.G.A. § 44-6-120, this is Georgia’s default rule for shared ownership. Each owner holds a separate share. Georgia law assumes the shares are equal unless the deed says otherwise.

Tenants in common has no right of survivorship. When an owner dies, their share does not pass to the other owner on its own. It passes through their will instead. If they never wrote a will, it passes through Georgia’s intestacy law. Either way, it goes through Georgia probate court.

For the full comparison between Georgia’s two ownership forms, see Joint Tenancy vs. Tenants in Common in Georgia. For a deeper look at the other form, see Joint Tenants with Right of Survivorship in Georgia.

What a Revocable Trust Does That Tenants in Common Cannot

A revocable living trust can hold your share of the property while you are alive. You stay the trustee. You keep full control of your own share. You can sell it. You can mortgage it. You can change who inherits it at any time.

At your death, your successor trustee steps in. They transfer your share to the people you named. No probate court gets involved for that share. Your co-owner keeps their own share exactly as before. Nothing about their ownership changes.

A trust also covers what happens if you cannot manage your affairs instead of dying. Say you have a stroke, dementia, or another serious illness. Your successor trustee steps in for your share. No guardianship case is needed. Tenants in common gives you no protection at all if this happens.

The Revocable Living Trust service page covers what a trust-based plan includes.

What Happens to Your Share If You Die Without a Trust

Say you die owning your share as tenants in common, with no trust in place. Your share becomes part of your probate estate. Georgia probate for a simple estate takes about 13 months on average. It costs a family about $14,700.

  • Cost: Georgia probate for a simple estate costs a family about $14,700 on average.
  • Timeline: A simple estate spends about 13 months in Georgia probate court.
  • Control: Your co-owner cannot sell, refinance, or make decisions tied to your share until probate finishes.

Probate can also hand your co-owner a new business partner they never chose. Say you leave your share to three adult children in your will. Your co-owner now shares the property with three new people. They may have never even met them.

A trust avoids this problem. Your successor trustee sends your share straight to your named beneficiaries. No Georgia probate court is involved. And from the moment you fund your trust, your co-owner already knows exactly who will hold your share after you are gone.

Does a Trust Change Your Capital Gains Taxes?

Not the way it does for joint tenancy. This is a common mix-up. Georgia families comparing JTWROS and a revocable trust run into a real tax problem there. Tenants in common does not have that same problem.

Your tenants in common share was always fully yours. Nobody gifted you half of it during your lifetime. A JTWROS deed can do that. A tenants in common share cannot. At your death, your own share gets a full stepped-up basis to its fair market value. This is true whether it sits in your name alone or inside your revocable trust.

Funding your share into a trust does not add a tax problem. It does not remove one either. The basis outcome is the same either way. The real difference between tenants in common and a trust is not taxes. It is whether your share goes through Georgia probate court first.

What a Trust Does Not Fix

A trust solves the probate problem. It solves the incapacity problem too. It does not solve everything.

Funding your share into a trust does not stop your co-owner from filing a partition action. This can happen any time while you are both alive. Either owner can still ask a Georgia court to divide the property or order it sold. This is true whether your share sits in a trust or in your own name. A trust changes who legally holds your share. It does not change the fact that you and your co-owner still own the property together.

A trust also does not protect your share from your own creditors. This is true during your lifetime. A revocable trust is transparent to your own creditors. It works the same as if you owned the property outright. Only your beneficiaries’ creditors are kept out. A beneficiary has no present ownership interest while you are alive.

For a closer look at creditor risk with shared ownership in Georgia, see What Happens If a Joint Tenant Has Creditors in Georgia.

Can You Fund Your Share Without Your Co-Owner’s Agreement?

Yes. This is different from converting the whole property to joint tenancy. That path needs every owner to sign a brand new deed together. Funding your own tenants in common share into your own trust only needs you.

You already have the right to sell your share. You can mortgage it. You can leave it to whoever you choose. You do not need your co-owner’s agreement for any of that. Moving that same share into your trust works the same way. Your co-owner does not sign anything. Most families choose to tell them anyway.

Your co-owner’s own share is not affected. They still own it exactly as before. They can fund it into their own trust, or not, on their own timeline.

How to Fund Your Share Into a Trust

Moving a tenants in common share into a revocable trust takes a few concrete steps.

1

Set Up Your Revocable Living Trust

Name your successor trustee and the beneficiaries who will get your share.

2

Confirm Your Exact Ownership Share

Read your current deed. Or ask your closing attorney or title company for a copy.

3

Sign a New Deed

This deed moves your fractional interest from your name to your trust. It is typically a quitclaim deed or a limited warranty deed, not a new sale. Your co-owner does not sign it.

4

Record the Deed and File the PT-61 Form

File both with the Clerk of Superior Court in the county where the property sits.

5

Update Your Trust’s Schedule of Assets

List the property. This gives your successor trustee a clear record of what the trust holds.

Which One Makes Sense for Your Situation

Tenants in common works fine on its own while every owner is alive and everyone agrees. The gap shows up the moment one owner dies. It also shows up if an owner becomes unable to make decisions, or if the owners disagree about the property.

A revocable trust is worth the $3,500 cost for most Georgia co-owners. This is true if you want your share to skip probate. It is true if you want a plan in place for incapacity. It is true if you want to choose exactly who inherits your share. It matters least if your share has very little value, or if you are fine letting your share pass through probate the normal way.

Are you weighing tenants in common against converting to joint tenancy instead of a trust? Read Problems with Joint Tenancy in Georgia first. Joint tenancy avoids probate at the first death. But it creates its own risks. It still does not solve incapacity or the second death the way a trust does.

See how much a revocable trust costs in Georgia for what the cost actually includes.

$14,700 Average Georgia probate cost for an unfunded share That is what a family could pay if a share has no trust and goes through Georgia probate.
13 Months Average time a tenants in common share spends in Georgia probate That is how long a co-owner could wait before an unfunded share is settled.
No Permission Needed You can fund your share into a trust without your co-owner's agreement You can move your own share into your own trust without asking anyone.

Our Process

How to Get Started

Book a Call

Schedule your free 15-minute call with Shawn to discuss your property, your co-owner situation, and whether a trust is the right fit.

Meet With Melissa

Melissa reviews your share, your family structure, and your concerns. You leave with a clear recommendation, not a sales pitch.

Fund Your Trust

If a trust is the right fit, Melissa's team handles the paperwork, the deed transfer, and confirms your share is properly titled.

Melissa Breyer

Melissa Breyer

Georgia Estate Planning Attorney

Melissa Breyer is a Georgia estate planning attorney who works exclusively on trust-based estate planning and LLC formation. She personally designs and drafts every plan at The Hive Law after the initial call. Every plan is built from scratch for your specific family, your specific assets, and your specific wishes.

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My mom chose The Hive firm to help with estate planning and developing a trust to protect her assets. I sat in on her meeting with Melissa, and Melissa did a great job of simplifying complex legalese into easily understood concepts. Shawn was very quick to get us our documents and all steps in the process were clear and easy. They make a great team and we are thankful for their help!

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I lost my father in February of this year without any estate planning in place. The process of dealing with the probate court has been overwhelming and expensive. After this experience, I contacted The Hive Law to set up a trust so my children never have to go through what I've been through. Melissa and Shawn were compassionate, knowledgeable, and made the entire process simple. I highly recommend The Hive Law!

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I used to know the bare minimum about probate and trust. I first encountered Shawn Breyer on Facebook. He was offering a webinar that I watched. That gave me a better understanding of probate versus trust. I was impressed enough to have him and his wife represent me. I had my initial one on one interview with Melissa Breyer, it went smoothly and she made everything clear. We are now proceeding with getting a revocable trust in place.

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Frequently Asked Questions

Tenants in common does not avoid probate in Georgia. When one owner dies, their share becomes part of their probate estate. It goes through Georgia probate court, the same as property owned by one person alone.

A Georgia tenants in common share can be moved into a revocable living trust. The owner of that share does this alone, using a new deed. The other co-owner does not need to agree. Each tenant in common controls their own share.

Your co-owner’s permission is not required to fund your own tenants in common share into your own trust. You already have the right to sell, mortgage, or will your share to anyone you choose. Moving it into a trust works the same way.

Funding a tenants in common share into a revocable trust does not change your capital gains outcome. The share already belonged fully to that owner. It gets a full stepped-up basis at death either way, whether it sits in the owner’s name or inside their trust.

A tenants in common share with no trust becomes part of the owner’s probate estate in Georgia. The share passes to whoever is named in a will. If there is no will, it passes to the closest relatives under Georgia’s intestacy law. Either way, it goes through a probate case that averages about 13 months.

A revocable trust does not protect a tenants in common share from a partition action. Either co-owner can still ask a Georgia court to divide or sell the property. This can happen any time both owners are alive, whether a share sits in a trust or not.

A revocable trust does not protect a tenants in common share from the owner’s own creditors. This is true during the owner’s lifetime. Georgia treats a revocable trust as transparent to the person who created it. Their own creditors can still reach it, the same as property held outright.

A revocable trust is usually the stronger choice for unmarried Georgia co-owners. It lets you send your share to a person you pick by name. Tenants in common alone leaves that share to Georgia’s default rules if there is no will.

A Georgia revocable living trust typically costs $3,500. That price covers the trust document itself. Moving your tenants in common share into the trust is a separate step. It typically costs $550 per property to draft and record the new deed.

A trust-funded tenants in common share is not affected by the other co-owner’s death. Each owner’s share follows that owner’s own plan. Say the co-owner with no trust dies first. Their share still goes through Georgia probate. The trust-funded share stays governed by the trust the whole time.

Moving your share into your own trust does not trigger your mortgage’s due-on-sale clause. A federal law protects this transfer. This is true as long as you stay a beneficiary and keep living there. Most lenders still like a courtesy notice before you record the new deed. They cannot object to the transfer.

Your title insurance policy generally keeps protecting your share after you move it into your own trust. Most policies extend coverage to a trust made by the same owner. Confirm this with your title insurance company, or ask for a short endorsement, before you record the new deed.

Your homestead exemption generally continues after you move your home share into your own trust. You still live there and still benefit from the trust. County practices can vary, so confirm the transfer with your county tax assessor’s office before you record the new deed.

A trust can be named directly as a co-owner on a Georgia deed. It can hold its share as a tenant in common, alongside a person or another trust. That is different from moving an existing owner’s share into a trust after the fact, which is the more common path. Both approaches end with the interest inside a trust. Naming the trust from the start skips one extra deed transfer step.

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