Do you know how you currently hold title to your property? Do you own it individually or jointly with another person? If with another person, do you hold title as “joint tenants” or as “tenants in common”? The difference could affect what happens to your property after you die. Therefore, it is important to know and understand how you currently hold title to your property or how you want to take title on your next purchase for estate planning purposes.
In Georgia, when a property is owned by more than one person (husband and wife for example), title is typically held as either “Joint Tenants with Rights of Survivorship” (Joint Tenants) or as “Tenants in Common”. The language in the warranty deed from the prior owner to the current owners dictates how title is held. The warranty deed must specifically state that the new owners are taking title as “joint tenants with rights of survivorship” in order for the new owners to in fact hold title as Joint Tenants. Otherwise, without this specific language, the new owners will hold title as tenants in common.
If title is held as Joint Tenants, the owners each maintain an undivided interest in the property. Upon the death of one owner, the deceased’s interest in the property automatically vests with the surviving owner. There is no need to submit the property to probate court or execute any additional documents. The surviving owner would only need to provide a copy of the death certificate of the deceased owner in order to convey title to the property. Most married couples own property in this manner.
If title is held as Tenants in Common, the owners each maintain an undivided interest in the property. However, upon the death of one owner, the deceased’s interest in the property does NOT vest with the surviving owner. Instead, the deceased owner’s interest is alienable, devisable and inheritable. In other words, the deceased owner’s interest in the property shall be conveyed based upon the deceased’s will. If the deceased died without a will, the laws of Georgia shall determine how the deceased’s interest in the property will be distributed. This method of ownership allows each owner to control and dictate the ownership of their respective interest in the property upon their death and is probably preferred when the owners are not spouses or domestic partners. However, as Tenants in Common, the surviving owner could end up owning the property with one or more other persons not anticipated during the original purchase of said property.
To avoid any potential surprises down the road, all property owners should examine their warranty deed to determine how they currently hold title to their property. If the current method of ownership is not acceptable to all the owners for estate planning purposes, a new warranty deed can be executed by the owners that will correct the ownership interest to the preferred method (assuming all owners agree to the change).
Brent Warren is a partner in the law firm of McLain & Merritt, P.C., a mid-size firm that has been in business over fifty years. He has been practicing law since 1992 and specializes in both residential and commercial real estate. Brent is a graduate of Vanderbilt University School of Law and the University of Kentucky (B.S. Accounting). His clients include real estate agents, loan officers, builders, developers and relocation companies. He lives and works in Alpharetta, Georgia. email@example.com