How to Assert a Right of Survivorship to Claim a Larger Share of Surplus Funds in Georgia

Short answer: Possibly — but it depends on the exact wording of the deed, the timing of the death versus the sale that generated surplus funds, and your ability to prove that a valid right of survivorship existed and vested in you before the surplus was distributed. You will generally need the recorded deed, a death certificate, and often a recorded affidavit or other proof that title passed by survivorship. If the facts are contested you may have to file a claim in court to collect the funds.

What “surplus funds” means in this context

Surplus funds are the amount left over after a foreclosure or tax sale pays secured debts and sale costs. Whoever owned the property (or the owner’s successors) at the time the sale produced surplus funds is the person entitled to those funds, subject to priority rules and liens.

How a right of survivorship works under Georgia property law

In Georgia, ownership depends on how title was granted in the deed. A deed can create several forms of co-ownership:

Tenants in common — each owner has a separate, divisible share that passes by will or intestacy when an owner dies.
Joint tenants with right of survivorship — when one joint tenant dies, that person’s share automatically vests in the surviving joint tenant(s), not in the decedent’s heirs or estate, but the deed must clearly create the survivorship interest.
Tenancy by the entirety — a special form of joint ownership available to married couples that includes survivorship protections.

Whether a deed creates a right of survivorship turns on the language in the deed. Clear statements such as “to A and B as joint tenants with right of survivorship” or “to A and B, husband and wife, as tenants by the entirety” support survivorship. Ambiguous deed language is more likely to be read as creating a tenancy in common.

For the official text of Georgia property law, see the Georgia General Assembly website (search Title 44, Property): https://www.legis.ga.gov/.

Why timing matters: who owned the property when the sale happened?

The controlling date is when the property interest that generated the surplus was extinguished or sold. Two common timing scenarios:

If the co-owner with the alleged survivorship right died before the foreclosure or tax sale that produced surplus funds, and the deed properly created a survivorship interest, title had already vested in the surviving owner at the time of sale. The surviving owner is generally entitled to the full surplus.
If the co-owner died after the sale, the decedent was an owner at the time the sale occurred. The decedent’s estate (or heirs) might have a claim to whatever portion of the surplus corresponded to the decedent’s interest at the time of sale.

What you must prove to assert survivorship and claim more of the surplus

To increase your share of surplus funds by asserting survivorship you typically must provide:

The recorded deed that conveyed title and its exact language showing survivorship (or other strong evidence that it created survivorship).
A certified copy of the decedent’s death certificate (to prove when the death occurred).
Evidence that the sale created surplus funds and how those funds are being held (for example, court clerk or sheriff records).
If required by the county, a recorded affidavit of survivorship or other ministerial proof of vesting in the surviving owner.

Practical steps to assert your claim in Georgia

1. Get certified copies and the recorded deed. Order certified copies of the deed from the county clerk/registrar and a certified death certificate.

2. Check where the surplus funds are held. For judicial sales, surpluses are usually with the clerk of superior court. For tax sales, consult your county’s tax commissioner or clerk. Contact the office holding the funds and ask their procedure for claiming surplus.

3. Provide documentary proof. Submit the deed, death certificate, and any required affidavits as the county or court requires.

4. If the county or other claimants dispute your right, you may have to file a court action. Common actions include a claim to the surplus, an interpleader action (if the holder of funds wants the court to decide competing claims), or a quiet-title or declaratory judgment action to establish ownership by survivorship.

5. Consider recording a short affidavit or declaration of survivorship (if allowed) to create a public record that title passed to you on death. Recording requirements and forms vary by county.

Common defenses and obstacles

Poorly drafted deeds. If the deed does not clearly create a survivorship interest, a court may treat the co-owners as tenants in common.
Unresolved liens or creditors. Even if you owned the property by survivorship, senior liens or valid perfected claims may have priority over surplus distribution.
Timing disputes. If the date of death relative to the sale is ambiguous, parties often litigate.
Procedural barriers. Counties and courts have specific claim procedures and deadlines you must follow.

When you should talk to an attorney

Talk to a lawyer if:

Another party contests your claim to the surplus.
Deed language is ambiguous on survivorship.
Surplus funds are substantial and multiple claimants exist.
You need to file a court action to determine ownership or compel distribution.

Helpful hints

Read the actual recorded deed. Don’t rely on memory. Survivorship depends on deed language.
Get certified, recorded copies from the county where the property sits. Court and county staff will accept certified county records more readily than photocopies.
Obtain a certified death certificate early. Dates on that certificate can determine the outcome.
Document the surplus procedure. Ask the clerk or tax office for written instructions on how to claim surplus funds.
If you are the survivor, consider recording a short affidavit of survivorship where permitted to make future claims easier for third parties.
Act quickly. Some claim procedures have strict deadlines; missing them can complicate recovery.
Keep copies of every submission to the county or court and obtain proof of delivery or filing receipts.

Where to look in Georgia law

Relevant topics appear in Georgia law under property and civil procedure provisions (search Title 44, Property, and related civil practice provisions) on the Georgia General Assembly site: https://www.legis.ga.gov/. County clerk and tax commissioner rules also matter for foreclosure and tax-sale surplus procedures.