Georgia Deed Forms for Real Estate Transfers
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What Types of Deeds Are Recognized in Georgia?
A Georgia property owner can transfer ownership to another person or adjust how property is titled by signing and recording a deed.1 The types of deeds available in Georgia differ in the warranty of title the deed provides (or fails to provide) to the new owner.
Warranty of title is essentially a guarantee that the current owner who transfers the property (the grantor or transferor) gives to the new owner (the grantee or transferee). The guarantee covers the property’s ownership status and any adverse claims on the property’s title. The warranty protects the new owner by making the current owner legally responsible for problems that arise with the property’s title.2 Title problems that a warranty covers might include, for example, an outstanding lien or mortgage, a boundary dispute, or a third-party claim on the property caused by an error in a prior deed.
Georgia’s three main deed forms—listed from weakest to strongest warranty of title—are warranty deeds, limited warranty deeds, and quitclaim deeds.
Attorney Practice Note: A Georgia deed’s warranty of title consists of one or more covenants of title—which are legally enforceable promises the current owner makes when signing the deed.3 A deed’s covenants of title determine the strength (or weakness) of its warranty and must be written in the deed (i.e., Georgia recognizes no implied covenants of title).4
Georgia Warranty Deed Form
A Georgia warranty deed form—sometimes called a general warranty deed—transfers ownership of real estate with complete warranty of title. A transferor who provides a complete warranty—also called a general warranty—promises a good, clear title subject to no third-party claims. A Georgia general warranty deed has at least three covenants of title:
- The current owner holds good title and has the right to transfer the property.
- The new owner’s possession of the property will not be disturbed by third-party claims on the property’s title.
- There are no undisclosed liens, mortgages, assessments, or other encumbrances that impair the property’s title.5
A warranty deed places all risk of title problems on the transferor who signs the deed. The warranty’s only exclusions are issues specifically exempted in the deed itself. The new owner can pursue a breach-of-warranty claim if a title problem arises.6 For example, the new owner can recover from the prior owner the cost of paying off a lien to clear the property’s title.7
Georgia Limited Warranty Deed Form
A Georgia limited warranty deed form includes the transferor’s guarantee of a good title. However, the guarantee is expressly limited to adverse claims made by the transferor or someone “claiming by, through, or under [the transferor].”8 In other words, a limited warranty deed protects the new owner from title problems caused by the current owner’s actions or omissions or by another person’s actions while the current owner held title.
Limited warranty deeds—also called special warranty deeds—divide the risk of title problems between the transferor and the transferee. Problems that arose while the current owner owned the property are the current owner’s responsibility. Any other issues are the new owner’s responsibility.
Georgia Quitclaim Deed Form
Georgia quitclaim deed forms provide no warranty of title. A quitclaim deed passes whatever property interest the transferor holds. It does not guarantee a valid, clear title or that the transferor legitimately owns an interest in the property at all. The new owner receives the ownership interest the transferor can legally convey in whatever condition it happens to be.
Quitclaim deeds place all the risk of title problems on the new owner.9 Deeds for nominal or no consideration—or value provided in exchange for the deed—are often quitclaim deeds. For example, an owner might record a quitclaim deed to add a spouse to the property’s title. Or, a quitclaim deed might divide co-owned property between former spouses following a divorce.
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What Types of Estate Planning Deeds Are Used in Georgia?
Estate-planning deeds are intended to transfer property efficiently from the current owner to the owner’s intended heirs without probate. Georgia recognizes estate-planning deeds that let an owner retain possession during life or immediately transfer ownership to another person.
Georgia Life Estate Deed Form
A Georgia life estate deed creates two distinct ownership interests in the same property. The life estate is the right to own and possess the property until the death of the interest holder (the life tenant).10 The remainder gives the interest holder (the remainderman, remainder beneficiary, or just beneficiary) the right to own and possess the property when the life tenant dies.
An owner who creates a life estate deed for an estate plan typically keeps (or reserves) the life estate and gives the remainder to the owner’s child or other relative.11 After recording a life estate deed, the owner still has the right to possess and control the property in any lawful manner—except that the life tenant must preserve and protect the remainder interest.12 That means a life tenant cannot mortgage the property or sell it to someone else without the beneficiary’s consent.13
Georgia Survivorship Deed Form
A Georgia survivorship deed transfers property to two or more co-owners as joint tenants with right of survivorship.14 Co-owners who share a right of survivorship each have a right to take complete title to the property upon the other co-owner’s death. A surviving co-owner receives a deceased co-owner’s share automatically, so the property avoids probate.
Survivorship deeds created for estate plans typically name the current owner and another person—often the owner’s spouse or children—as joint tenants. The arrangement lets the property pass to the owner’s intended heir on the owner’s death without probate, but the other joint tenant receives all rights of a co-owner when the deed is created. A Georgia survivorship deed may also be a warranty deed, limited warranty deed, or quitclaim deed—depending on the warranty of title (if any) the owner elects to include.
Georgia Gift Deed Form
Georgia uses the term gift deed or voluntary deed for deeds that transfer property for consideration with no easily identifiable financial value.15 Gift deeds typically describe their consideration as “love and affection” or as a moral obligation—not as a dollar amount or other valuable property.16
An owner who creates a gift deed for an estate plan intends to transfer ownership of the property to another person—often the owner’s child—while the owner remains living. A Georgia court can declare an otherwise valid gift deed void if “the slightest evidence” of undue influence is presented within five years after the transfer.17
Most Georgia gift deeds are also quitclaim deeds in that they transfer property with no warranty of title. A gift deed can include covenants of title, but they usually do not.
Georgia Transfer on Death Deeds
A transfer-on-death deed—or TOD deed—names a beneficiary to take title outside probate when the owner dies. The owner keeps the property for life, and the beneficiary receives no actual property interest until the owner’s death. An owner who records a TOD deed retains the right to revoke the deed or sell or mortgage the property.
Georgia is among the minority of states that do not recognize TOD deeds. A Georgia property owner may be able to achieve a similar objective using a living trust. A bill that would authorize TOD deeds in Georgia was pending before the Georgia General Assembly as of August, 2022.
What Are the Ways in Which Multiple Owners Can Jointly Own Georgia Real Estate?
Georgia law recognizes two forms of co-ownership that two or more co-owners can use to jointly hold title to real estate.
Tenancy in Common
Joint owners who co-own property as tenants in common have fractional interests that they can transfer separately. A tenancy-in-common interest goes through probate when the co-owner dies.18 The interest passes under the terms of the owner’s will or under Georgia’s rules for estates with no wills.19
Tenancy in common is Georgia’s default form of co-ownership. A deed that names two or more new owners creates a tenancy in common unless the deed says otherwise. Georgia law assumes that tenants in common own equal interests—for example, two co-owners who each hold a one-half interest—but a deed can specify unequal interests.20
Joint tenants mutually share complete ownership of property. A Georgia joint tenancy is defined by the right of survivorship shared by the co-owners. Joint tenancy interests avoid probate and cannot be transferred by will because a surviving owner automatically receives a deceased owner’s share.
An individual property owner can create a joint tenancy by recording a deed that transfers title to the owner and another person as joint tenants.21 A Georgia deed creates a joint tenancy if it refers to co-owners as “joint tenants,” “joint tenants and not as tenants in common,” “joint tenants with survivorship” or says that they receive the property “jointly with survivorship.”22
Tenancy by the Entirety
Georgia does not recognize tenancy by the entirety. In states that recognize it, tenancy by the entirety is similar to joint tenancy and includes a right of survivorship. The principal distinction is that tenancy by the entirety can only be used by married spouses and can sometimes provide extra protection against creditor claims.
Real Estate Ownership Through Trusts
Two or more persons can use a revocable living trust to enjoy the benefits of real estate ownership without actually holding legal title. A living trust can allow an owner to effectively retain possession and control of property for life and transfer it outside of probate at death.
A property owner forms a trust by creating and signing a document that declares the intent to create the trust and names one or more trustee and beneficiary.23 A property owner moves real estate to a trust by recording a deed that transfers legal title to the trustee.24
A trust’s trustee holds legal title and manages the trust’s assets for the beneficiaries’ benefit.25 Georgia law allows the same individuals to be a trust’s co-trustees and beneficiaries.26 A trust instrument can also name a successor trustee who is charged with distributing trust property when the person who created the trust dies.
What Are the Rules for Spousal Ownership of Georgia Real Estate?
Like other states, Georgia has laws that give a married individuals rights in their spouses’ property. Although Georgia’s spousal property rights are relatively weak compared to other states, a married owner should consider potential implications of spousal rights when titling property and forming an estate plan.
Georgia Homestead Rights
Georgia law considers real estate a homestead if the owner uses the property as his or her primary residence.27 A property that qualifies as a homestead receives benefits under Georgia law—such as partial property tax exemptions and protection against creditors.28
Some states require both spouses to sign a deed that transfers a married couple’s homestead—even if only one spouse holds legal title to the property. That is not the case in Georgia. A non-owner spouse need not sign a deed that transfers a homestead owned solely by the other spouse.
Spousal Intestate Share
A spouse’s intestate share is the portion of a deceased spouse’s estate to which a surviving spouse is entitled if the deceased spouse left no will. A married property owner’s real estate is subject to a surviving spouse’s intestate share rights if the owner has no will and has not arranged for a non-probate transfer (for example, through a life estate deed or survivorship deed).
A surviving spouse’s intestate share in Georgia is the deceased spouse’s entire estate if the deceased spouse leaves no surviving descendants (i.e., children or grandchildren).29 Otherwise, the surviving spouse receives a share equal to the share each of the deceased spouse’s children receive—except that the surviving spouse’s share cannot be less than one-third of the estate.30
Spousal Elective Share
A spousal elective share is a minimum share of a deceased spouse’s estate that a surviving spouse can choose to receive in lieu of the share provided under the deceased spouse’s will. Elective share statutes are designed to stop a married person from disinheriting his or her spouse by will. Most states let married individuals voluntarily waive elective share rights—typically in a written pre- or post-nuptial agreement.
Georgia has no elective share statute and provides relatively weak legal protections against spousal disinheritance. The closest thing to an elective share in Georgia is that a deceased person’s surviving spouse and minor children have a priority claim to the estate assets necessary for their maintenance and support for one year.31 A surviving spouse must choose between the one-year support allowance and the share under the deceased spouse’s will if the will gives the surviving spouse an estate share.32
Where Are Deeds Filed in Georgia?
Georgia deeds are recorded in the land records maintained by the clerk of the superior court of the county where the property is located.33 If a deed transfers property situated in more than one county, the transferor should sign duplicates and record an original in each county.34 A deed becomes effective against third parties once it is recorded in the land records.35
Does Georgia Allow Electronic Recording?
Georgia’s General Assembly authorized electronic recording of deeds by passing the Uniform Real Property Electronic Recording Act (URPERA).36 A electronically recorded deed with an electronic signature satisfies Georgia’s requirement that deeds be signed, original documents.37
Not all of Georgia’s counties have adopted electronic recording programs. Clerks in counties that allow electronic recording must continue to accept paper deeds.38
What Is the Cost to File a Georgia Deed?
Georgia superior court clerks charge a $25.00 filing fee for recording deeds.39 The general rule in Georgia is that the new owner is responsible for paying recording fees and other transfer-related costs unless the parties agree otherwise.40
Does Georgia Charge a Transfer Tax for Real Estate Transfers?
Georgia charges a transfer tax if a deed or other instrument transfers ownership of real estate for consideration above $100.00.41 The transfer tax rate for Georgia deeds is $1.00 for every $1,000.00 of consideration given for the transfer.
Either the current owner or the new owner must pay the transfer tax to the superior court clerk at the time of recording.42 The clerk then stamps the deed to show that the tax was paid or issues a written receipt that is recorded with the deed.43
Which Deeds are Exempt from Georgia’s Transfer Tax?
Georgia’s transfer tax law lists 11 categories of deeds and other recorded instruments that are exempt from the transfer tax.44 A recorded instrument is exempt if it is any of the following:
- An instrument created to secure a debt;
- A deed transferring property as a gift;
- A deed to or from the State of Georgia or federal government;
- A lease;
- A deed between spouses in relation to a divorce;
- A deed that relates to a probate court’s order for one-year’s support for a deceased owner’s surviving spouse or children;
- A deed in lieu of foreclosure if it is for a purchase money deed to secure a debt recorded at least 12 months prior to the deed in lieu of foreclosure;
- A deed from the debtor to the first transferee at a foreclosure sale;
- A deed that transfers real estate for public road or transportation purposes;
- A deed returning property sold at a tax sale back to the defendant;
- A deed transferring real estate to or from an executor, trustee, or other fiduciary if the transfer is made for no consideration;
- A deed that divides property between co-owners who are tenants in common or joint tenants if the deed involves no additional consideration; and
- A deed that transfers property between one or more individuals and an LLC, corporation, partnership or other entity if the individual(s) have majority ownership of the entity.
Does Georgia Require Any Additional Forms When Recording a Deed?
All Georgia deeds must be filed along with a completed Transfer Tax Form PT-61.45 Form PT-61 describes the parties to the deed, the transferred property, and the transfer tax owed (or exemption).
Form PT-61 must be completed online using the webpage provided by the Georgia Superior Court Clerks’ Cooperative Authority (GSCCCA). After adding the necessary information, the filer prints the completed form—which is then submitted to the superior court clerk with the deed. The GSCCCA has a frequently-asked-questions page on its site that provides additional instructions for completing Form PT-61.
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- Ga. Code § 44-5-30.
- Ga. Code § 44-5-66.
- See, e.g., Ga. Code § 44-5-60(a).
- Ga. Code § 44-5-61.
- Ga. Code § 44-5-62.
- See, e.g., Ga. Code § 44-5-36.
- Ga. Code § 44-5-64.
- Creek v. First Nat’l Bank of Atlanta, 267 S.E.2d 872, 873 (Ga. Ct. App. 1980).
- McDonough & Co. v. Martin, 88 Ga. 675 (1892) (“The law is clear that, where the buyer takes a quitclaim deed … the maxim of caveat emptor applies. He is without remedy if the title fails.”).
- Ga. Code § 44-6-80.
- See Ga. Code § 44-6-82(a).
- Ga. Code § 44-6-83.
- Ga. Code § 44-6-87.
- Ga. Code § 44-6-190(a)(2).
- See Ga. Code § 44-5-30.
- Thomas v. Garrett, 456 S.E.2d 573, 576 (Ga. 1995) (“A good consideration can be founded on love and affection toward one to whom a natural duty exists, such as near relatives…”).
- See Ga. Code § 44-5-86.
- Ga. Code § 53-2-7.
- See Ga. Code § 53-2-1.
- Ga. Code § 44-6-120.
- Ga. Code § 44-6-190(a)(1).
- Ga. Code § 44-6-190(a)(2).
- Ga. Code § 53-12-20.
- Ga. Code § 53-12-25.
- Ga. Code § 53-12-246.
- Ga. Code § 53-12-24.
- Ga. Code § 48-5-40(3).
- Ga. Code §§ 48-5-44; 44-13-1; 44-13-100(a)(1).
- Ga. Code § 53-2-1(c)(1).
- Ga. Code § 53-2-1(c)(1).
- Ga. Code § 53-3-1(c).
- Ga. Code § 53-3-3.
- Ga. Code § 44-2-1.
- Ga. Code § 44-2-11.
- Ga. Code § 44-2-2(b).
- Ga. Code §§ 44-2-35, et. seq.
- Ga. Code § 44-2-37.
- Ga. Code § 44-2-38(4).
- Ga. Code § 15-6-77(f)(1)(A)(i).
- Ga. Code § 44-5-47.
- Ga. Code § 48-6-1.
- Ga. Code §§ 48-6-3; 48-6-4(a).
- Ga. Code §§ 48-6-4(d) and (e).
- Ga. Code §§ 48-6-2(a)(1)-(11).
- Ga. Code § 48-6-4(c).