When a spouse passes away, one of the biggest questions families ask is:

Do you need probate if your spouse dies?

The answer isn’t always straightforward. It depends on how the property was titled, whether there was a will, and several other factors.

I sat down with Georgia probate attorney Josh Rand to discuss one of the most common situations we see involving inherited real estate. Since a home is often a family’s largest asset, understanding whether probate is required can save you time, money, and unnecessary stress.

It Depends on Several Factors

According to Josh, there’s no universal answer because every situation is different.

Some of the first questions an attorney will ask include:

• How long ago did your spouse pass away?
• Was there a will?
• What assets are involved?
• How was the property titled?

Since we’re usually talking about homes and other real estate, the way the deed is written often determines whether probate is even necessary.

Joint Tenants With Right of Survivorship

The first thing Josh looks for is whether the property is owned as joint tenants with right of survivorship.

This is important because certain assets transfer outside of probate, and real estate can be one of them when it’s titled correctly.

With joint tenancy and right of survivorship:

• Both spouses legally own the entire property.
• When one spouse passes away, the surviving spouse automatically becomes the sole owner.
• No probate is typically required to transfer ownership.

Instead, the surviving spouse may simply record an Affidavit of Surviving Joint Tenant along with a copy of the death certificate to update the public records.

That makes the transfer much simpler than going through a full probate proceeding.

What Happens If the Deed Doesn’t Say That?

Many homeowners don’t realize there’s a big difference between joint tenants with right of survivorship and tenants in common.

The key is that the deed must specifically state joint tenants with right of survivorship.

If it doesn’t, the default ownership is usually tenants in common.

Under a tenants in common arrangement:

• Each owner owns a separate percentage of the property.
• When one owner dies, their ownership interest becomes part of their estate.
• Probate is generally required before that ownership interest can be transferred or sold.

Josh explained that when he started practicing law more than 20 years ago, deeds didn’t always include survivorship language. Today, many attorneys routinely include it, but it’s still worth verifying.

Fortunately, checking is usually easy.

Most Georgia counties now make deed records available online, so you can often confirm how the property is titled without ever visiting the courthouse.

Not Sure Whether Probate Applies to Your Situation?

Every family’s circumstances are different. If you’re trying to determine whether probate is necessary—or you’re preparing to sell an inherited property—it can help to speak with someone familiar with probate real estate.

At Probate Resource, we work with homeowners facing probate and inheritance situations every day. If your case is more complex, we can also connect you with a trusted probate attorney who can answer your questions and help guide you through the process.

What If Only One Spouse Owned the Property?

Another common situation is when only one spouse’s name appears on the deed.

For example:

• The husband owned the home.
• He passed away years ago.
• His wife continued living in the home, paying the taxes and maintaining the property.
• Fifteen years later, she decides it’s time to sell.

Does probate become necessary then?

Again, Josh’s answer was:

It depends.

Georgia’s Affidavit of Descent

In Georgia, if someone passed away more than three years ago, there may be another option in certain situations.

Josh explained that attorneys can sometimes use an Affidavit of Descent (also called an Affidavit of Heirship in some situations).

This affidavit identifies the legal heirs. If the attorney is comfortable with the facts, the heirs may be able to sign deeds conveying their ownership interests rather than opening a formal probate estate.

However, there are important limitations.

For example, if there was a will, an Affidavit of Descent may not be available.

Every case needs to be evaluated individually.

Don’t Be Afraid of Probate

One point Josh emphasized is that probate isn’t always as intimidating as people think.

Sometimes it’s simply a legal formality involving the proper paperwork rather than a long, difficult court process.

In Georgia, many of the official probate forms are available online, making it easier for families to begin the process.

I actually learned an important lesson early in my career.

I once tried to “improve” one of the official Georgia probate forms by removing information I thought wasn’t necessary. The probate judge quickly corrected me and made it very clear that you don’t modify the state’s forms.

Lesson learned.

The forms are designed to be followed exactly, and in many cases they’re straightforward enough that you simply work through them step by step. If questions come up, that’s when getting guidance from an experienced probate attorney can be extremely helpful.

Final Thoughts

Whether probate is required after a spouse dies depends largely on how the property was owned and the specific facts of the estate.

If the property was held as joint tenants with right of survivorship, probate may not be necessary.

If it was owned as tenants in common, or only one spouse held title, probate—or another legal process such as an Affidavit of Descent—may be required before the property can be sold.

Understanding your deed and speaking with someone knowledgeable can help you avoid costly delays and determine the right path forward.

Need Help With a Probate or Inherited Property?

If you’re dealing with a probate or inherited property, we’re here to help.

At Probate Resource, we specialize in helping families navigate probate real estate. Whether you’re considering a cash sale or prefer to list the home with a real estate agent, we can help point you in the right direction.

We also have a trusted network of probate attorneys in many states. If you need legal guidance—or simply want answers to your probate questions—we’re happy to connect you with an experienced attorney who can assist you.

Reach out through our website or give us a call. A member of our team will take the time to discuss your situation and help you determine your best next step.