Problem 1 — Joint Tenancy Must Be Expressly Created, and Most People Get It Wrong
Georgia does not default to joint tenancy. Under O.C.G.A. § 44-6-190, any deed naming two or more persons is presumed to create a tenancy in common under O.C.G.A. § 44-6-120, unless the instrument calls the owners “joint tenants,” “joint tenants and not as tenants in common,” “joint tenants with survivorship,” “jointly with survivorship,” or uses wording essentially the same (O.C.G.A. § 44-6-190(a)(2)-(3)).
A deed that says “to John Smith and Mary Smith” creates a tenancy in common, not a joint tenancy. There is no automatic right of survivorship. When John dies, his half-interest does not pass automatically to Mary. It passes through his estate.
Many Georgia investors who believe they created a joint tenancy did not. They added a name to the deed without using the required survivorship language. When they die, the property goes through probate, defeating the entire purpose.
Even for investors who do get the language right: a joint tenancy can be severed, converted back into a tenancy in common, by any single joint tenant acting alone, without the other’s knowledge or consent. One joint tenant who records a deed transferring their own share ends the survivorship right for that share once the deed is recorded. The survivorship benefit can disappear without warning.
Problem 2 — It Only Avoids Probate Once
Joint tenancy with right of survivorship bypasses probate at the first owner’s death. The surviving joint tenant takes full ownership automatically, by operation of law, at the moment of death. No court, no petition, no waiting period.
That is the full extent of what joint tenancy does.
When the surviving owner later dies, they hold the property as an individual. The survivorship mechanism is gone. It was consumed at the first death. The property passes through their estate and goes through probate, subject to the full timeline (13 months on average for a simple Georgia estate), attorney fees, executor commissions under O.C.G.A. § 53-6-60, and court supervision.
For a Georgia investor who adds a child as joint tenant to avoid probate, the outcome is: probate skipped at the investor’s death, probate required at the child’s death, unless the child has done separate estate planning before they die. Joint tenancy transfers the probate problem to the next generation. It does not eliminate it.
A revocable trust holds title indefinitely, through multiple generations of ownership succession, without any probate event. For an investor with a multi-property portfolio, a trust is the only structure that addresses the second death.
For what probate actually costs when it runs on a rental property estate, see How Much Does It Cost When Georgia Rental Properties Go Through Probate.
Problem 3 — One Incapacitated Owner Blocks Every Transaction
A sale or refinance of the whole property needs every owner’s signature. One joint tenant can sign away only their own share.
If one joint tenant is incapacitated by a stroke, dementia, or an accident and cannot sign, the other joint tenant cannot sell or refinance the whole property without court authorization.
Without a durable power of attorney that the title company and lender will accept, or a properly established conservatorship, the property is frozen. The investor who added a spouse or child as a joint tenant for simplicity has created a structure where one health event locks the entire asset.
A revocable trust solves this directly: the successor trustee steps in immediately upon incapacity, with no court involvement, and can execute any transaction the trust authorizes.
Problem 4 — A Co-Owner’s Creditors Can Reach the Property
When one joint tenant has a judgment against them, a creditor can record a Writ of Fieri Facias (FiFa) with the superior court clerk in the county where the property is located under O.C.G.A. § 9-12-86(b). That recording attaches the lien to the debtor’s interest in the property.
The creditor can then sever the joint tenancy, converting it into a tenancy in common, and pursue a forced sale through the partition process under O.C.G.A. § 44-6-160. The whole property can end up in a court-ordered sale over a debt the other owner did not incur. The co-owner does not need to have done anything wrong. The liability belongs to the debtor joint tenant alone, but the property is not protected from it.
This exposure is not limited to judgment creditors. A joint tenant who files for bankruptcy places their interest in the bankruptcy estate. The bankruptcy trustee can seek to liquidate the debtor’s interest in real property, which in a joint tenancy context means forcing a sale of a property the other owner never intended to sell.
Trust beneficiaries hold equitable interests, not legal title. While the investor is alive, a child named in the trust owns no share of the property, so the child’s creditors have nothing to attach. The trust does not shield the property from the investor’s own creditors.
For more on what happens when co-owners disagree or creditors become involved, see What Happens When Heirs Disagree About Rental Properties in Georgia.
Problem 5 — Adding a Child as Joint Tenant Is a Gift You Must Report, With an Uncertain Tax Basis
When an investor adds an adult child as a joint tenant on a rental property deed, they are making a gift of a fractional interest in the property. Under IRC § 2511, that gift is subject to federal gift tax rules.
If the gifted interest exceeds the annual exclusion ($19,000 per recipient in 2026), the gift must be reported on Form 709, and the amount over the exclusion counts against the investor’s lifetime gift and estate tax exemption. Most investors owe no gift tax, because the gift only counts against that lifetime limit. For a rental property worth $500,000 with no mortgage, adding a child as a 50% joint tenant is a $250,000 gift, far more than the annual exclusion, requiring Form 709 filing.
The basis rules are where joint tenancy gets risky. Under IRC § 1014, property counted in a person’s estate at death gets a stepped-up basis. The heir’s cost basis resets to fair market value on the date of death. Under IRC § 1015, property received by gift keeps the giver’s original cost basis.
Adding a child as a joint tenant falls between those two rules. If the investor paid for the whole property, the joint tenancy is still in place, and the investor dies first, IRC § 2040(a) counts the whole property in the investor’s estate. In that case the whole property gets a stepped-up basis, less any depreciation the child already claimed on their share.
That result is not locked in. If the joint tenancy is ended before the investor dies, the child’s gifted share can keep the investor’s original cost basis under § 1015. If the child put their own money into the property, part of it may not get a new basis. That can include the child’s share of the rent, if it paid for improvements or the loan. If the deed leaves out Georgia’s survivorship wording, the two are tenants in common, and only the investor’s half gets a stepped-up basis. The child also has to be able to show that the investor paid for the property. If the investor keeps all the rent after giving a share away, the tax result can be different, so get advice before counting on either outcome.
An investor who holds the property in a revocable trust and leaves it to the child at death gets a stepped-up basis on the whole property under § 1014, with no gift to report.
What a Trust Does Instead
A revocable living trust eliminates all five problems.
Probate: The trust holds title indefinitely. At the investor’s death, the successor trustee takes over, no probate at the first death, no probate at the second, no probate at any generational transfer.
Incapacity: The successor trustee takes over immediately upon incapacity. No conservatorship. No court. No frozen transactions.
Creditor protection: While the investor is alive, a child named in the trust owns no share of the property, so the child’s creditors have nothing to attach. The trust does not shield the property from the investor’s own creditors.
Tax basis: When the trust passes the property to beneficiaries at death, the entire asset receives a stepped-up basis under IRC § 1014, with no gift to report and nothing that depends on a deed staying in place.
Distribution control: The trust document specifies exactly when, how, and to whom the property or its proceeds are distributed. The investor sets those terms. A joint tenancy gives the surviving owner everything, immediately, with no conditions attached.
For a full overview of the structure that addresses all five problems, see Best Way to Hold Rental Properties in Georgia for Estate Planning.
