The 1988 Deed Trap
When you are named the administrator for a loved one’s estate, the physical and emotional logistics can feel completely paralyzing. You are standing in a house in Peachtree City, GA, surrounded by a lifetime of your mother’s treasures, trying to figure out how to disperse them, how to get the house ready, and how to move forward.
As an out-of-town administrator, you’re thinking you have to live down here till the house sells. Because probate can be a roller coaster ride, sometimes you might not know you have a problem until you have a problem. That’s just the reality of it.
Recently, I met with an administrator who was in this exact same scenario.
She had just received her letters of administration from the Fayette County Probate Court and thought she was completely ready to list the home. But because I always like to do my research and do my due diligence, I dug into the underlying data before making a call to move. I pulled the original warranty deed, which dated back to 1988.
That is where we hit an invisible wall.
The Default Trap of Georgia Property Law
The deed listed both her mother and her stepfather. Her stepfather passed away years prior in Delaware, and his estate even had been probated up there. For some reason, her mother did not get the deed fixed here in Peachtree City, which caused a hurdle.
The big issue is that the 1988 deed was missing seven critical words: “Joint Tenants with Rights of Survivorship.” In the state of Georgia, if a deed lists two names but does not explicitly state “joint tenants with rights of survivorship” or identify the tenancy, the law automatically defaults to Tenants in Common.
This means that when the stepfather passed away, his 50% ownership of the house did not automatically transfer to the mother. Instead, his half of the property became a part of his own separate estate. Because that title defect was never resolved while the mother was alive, the daughter is now facing a dual-state legal hurdle. She cannot sell the mother’s house until she clears the title for the stepfather’s half of the property.
When we were sitting together, I started to ask her questions about the deed, and I could see her tighten up with discomfort. I leaned in and said, “Hang with me. I’m asking these tough questions because I think we might have a problem here with the warranty deed.” As soon as I explained the reality, she immediately calmed down. She understood exactly what we were up against and said, “Yes, I am working on that.”
You Don’t Have to Be Trapped to Sell the House
Beyond the title defect, this daughter was dealing with a classic dilemma: she assumed she was going to have to uproot her life, leave her own home out of state, and physically live in this Peachtree City house full of treasures for months until it finally closed. I was able to hand her an incredible amount of comfort by laying out her actual options.
First, I let her know she didn’t have to stay here. As an out-of-town administrator, she can absolutely return home to her family. When the home goes under contract, we can execute what is called a mail-away closing. She doesn’t need to be physically sitting at a closing attorney’s office in Georgia to sign final transfer paperwork.
Second, we put together a step-by-step plan to handle her mother’s treasures. I gave her estate sale and move managers who can assist in the dispersal of her treasures. This allowed her to take a deep breath and take things one step at a time.
In probate real estate, sometimes you truly don’t know what you don’t know. When working with a real estate agent, make sure that they understand the probate process. Not a lot of real estate agents specialize in this. Make sure you get with one who does upfront research early so you can turn your potential legal nightmare into a structured, manageable plan.
Frequently Asked Questions
What is the difference between “Tenants in Common” and “Joint Tenants” on a Georgia real estate deed?
If a deed contains the phrase “Joint Tenants with Rights of Survivorship,” ownership of the property automatically passes to the surviving owner when one passes away, completely bypassing the probate process. If those exact words are missing, Georgia law defaults to “Tenants in Common,” meaning the deceased person’s share of the home belongs to their estate and must be probated separately before the home can ever be sold.
Does an out-of-town estate administrator have to be physically present in Georgia to close the sale of a probate home?
No. Georgia real estate law allows for “mail-away” closings. Once the property is under contract and the title is clear, the closing attorney can secure overnight digital and physical documents for the administrator to sign in front of a local notary in their home state, meaning you do not have to travel back to Georgia just to sign the documents to close.
Let’s Navigate the Road Ahead Together
If you are currently navigating probate in the greater Atlanta area, you don’t have to figure it all out on your own. Probate can be a roller coaster ride, but a little bit of upfront research and due diligence can save your family months of unexpected legal delays.
Contact us today for a complimentary, confidential review of your property’s deed and title history. You may already have a problem, you don’t know it yet.
Learn more about how we help on our Probate and Trusts page. Related reading: Does a Will Avoid Probate in Georgia? and The Missing Piece in Every Probate Attorney’s Client’s Toolkit.
