Does Tenancy in Common Go Through Probate in Georgia?

When co-owners hold property as tenants in common in Georgia, there is a question that eventually becomes unavoidable: what happens to a co-owner's share when they die? The answer is one of the most significant practical distinctions between tenancy in common and other ownership structures — and it has direct implications for how families plan their estates and how surviving co-owners manage shared property after a death.

The Short Answer: Yes, Tenancy in Common Typically Requires Probate

Unlike joint tenancy with right of survivorship — where a deceased owner's share passes automatically to the surviving co-owners outside of probate — tenancy in common offers no such automatic transfer. When a tenant in common dies, their ownership interest does not shift to the other co-owners. Instead, it becomes part of the deceased's estate and is subject to the same probate process as any other estate asset.

Under Georgia Code § 44-6-120, tenancy in common is the default form of co-ownership when two or more people hold property together and no specific ownership structure is stated in the deed. This default status means many co-owners don't realize their property is held this way until a death occurs — at which point the probate requirement becomes an immediate and often disruptive reality for the surviving owners.

What Probate Looks Like for a Tenancy in Common Interest

When a tenant in common dies, their share of the property cannot be sold, transferred, or otherwise acted upon until the estate is properly administered through the Georgia probate court. The general process proceeds as follows:

First, the estate must be formally opened in the probate court of the county where the deceased lived. If the deceased left a valid will, that document governs who inherits the property interest. If there is no will, Georgia's intestacy laws determine how the share is distributed — which may result in the property passing to heirs who have no relationship with the surviving co-owners and no interest in maintaining shared ownership.

Once the executor or administrator is appointed, they inventory and value the estate's assets, which includes the tenancy in common interest. Creditors are notified and given the opportunity to make claims. After debts and taxes are resolved, the deceased's share is distributed to the heir or heirs designated by the will or by law.

Only after this process is complete can clear title be established in the new owner's name — and only then can the surviving co-owners make decisions about the property that involve the new owner's interest.

Why This Creates Problems for Surviving Co-Owners

The probate process in Georgia typically takes eight months to over a year in uncomplicated cases, and longer when there are disputes or unusual assets. During that entire period, the surviving co-owners are in a state of legal limbo regarding decisions that affect the property. They generally cannot sell the property, refinance it, or make major improvements that require all owners' consent — at least not in a way that will bind the estate and its eventual beneficiaries.

Compounding this, the heir who ultimately inherits the deceased's share may be someone the surviving co-owners have never met or didn't expect. If the deceased had no will and had children from multiple relationships, the property interest could be distributed among several new co-owners at once, each with their own views on what should be done with the property.

If the new co-owners and the existing ones cannot agree on how to manage, use, or sell the property, any one of them can file a partition action in court. Under O.C.G.A. § 44-6-160, a partition allows a judge to either divide the property physically — which is practical only for divisible land — or order a forced sale with proceeds split among all owners. Partition actions are expensive, time-consuming, and often destructive to family relationships.

Estate Planning Options to Avoid Probate

Co-owners who want to avoid putting their share of property through probate have several planning options:

Revocable living trust. By placing a tenancy in common interest in a properly funded living trust, the owner's share can pass to their beneficiaries outside of probate entirely. The surviving co-owners and the new beneficiaries avoid the delays and uncertainties of the estate process, and title transfers cleanly on death.

Converting to joint tenancy with right of survivorship. If the co-owners want the surviving owner to automatically inherit the deceased's share, they can convert the ownership structure in the deed. This must be explicitly stated in a new deed — Georgia does not presume right of survivorship. This option makes sense when co-owners intend to leave their shares to each other, but not when each wants to direct their share to different heirs.

Life estate deed. A life estate deed allows an owner to retain the right to use and occupy the property during their lifetime while designating who will inherit their interest after death. The property passes automatically at death without probate, though the owner gives up some flexibility over the property during their lifetime.

Co-ownership agreement. While it doesn't eliminate the probate requirement, a well-drafted co-ownership agreement can establish clear procedures for decision-making, buy-sell arrangements, and what happens when one co-owner dies — reducing the likelihood of partition disputes even when the estate process is underway.