When it comes to property ownership, the right of survivorship is an important concept that can significantly impact how assets are handled after one co-owner passes away. In Georgia, this legal principle has unique nuances that make it worth understanding, especially if you're looking to secure your family's future.

At Peach State Wills & Trusts, we know the importance of planning for "what if" scenarios. By focusing on Georgia's property laws and the right of survivorship, we aim to help you make informed decisions about your estate plan. Let's explore what the right of survivorship is, how it works in Georgia, and why it's essential to get it right.

What is the Right of Survivorship?

The right of survivorship is a legal principle that allows property to pass automatically to a surviving co-owner upon the death of another. Unlike other forms of joint ownership, such as tenancy in common, the right of survivorship ensures a seamless transfer of ownership without the need for probate.

Here's how it works: Let's say two individuals own a home as joint tenants with rights of survivorship. If one owner passes away, their share of the property doesn't become part of their estate. Instead, it goes directly to the surviving co-owner. This bypasses the often lengthy and expensive probate process.

The key difference between the right of survivorship and other forms of ownership lies in what happens after one owner dies. For example, tenants in common can leave their share to anyone they choose through their will, while joint tenancy with survivorship doesn't provide that flexibility—it ensures the surviving co-owner inherits the property automatically.

Joint Tenancy with Right of Survivorship (JTWROS) in Georgia

In Georgia, Joint Tenancy with Right of Survivorship (JTWROS) is the most common way to establish survivorship rights for property. This form of ownership allows two or more people to own property equally, with the assurance that the property will transfer directly to the surviving owner(s) upon the death of any co-owner.

What makes JTWROS particularly appealing is its ability to avoid probate. Since the property automatically transfers to the surviving owner(s), there's no need to go through the court system to validate the transfer. This can save time, money, and emotional stress for the surviving co-owners.

However, it's worth noting that JTWROS must be explicitly established in the property's deed. Without the right language in the deed, the default ownership in Georgia is tenancy in common, which doesn't include survivorship rights.

Key Characteristics of JTWROS

JTWROS has several defining features that make it distinct:

●  Automatic Transfer of Ownership: When a co-owner passes away, their share of the property immediately transfers to the surviving co-owner(s), if any.

●  Equal Ownership Rights: Each joint tenant has an equal share of the property, regardless of how much each person contributed financially.

●  Avoidance of Probate: Because the property transfers automatically to the surviving joint owner(s), there's no need for probate for the deceased owner's share.

●  Express Statement Requirement: To establish JTWROS, the deed must include specific language stating the intent to create a joint tenancy with rights of survivorship.

Legal Requirements for Establishing JTWROS in Georgia

Creating a JTWROS in Georgia involves meeting specific legal requirements depending on the type of asset:

For Real Estate

●  The property deed must explicitly state "Joint Tenants with Rights of Survivorship",  “joint tenants”, “jointly with survivorship”, or “joint tenants and not as tenants in common.”

●  The deed is recorded properly in the county where the land is located.

For Financial Assets

●  Most financial institutions require specific paperwork to designate accounts as JTWROS. This could include joint bank accounts or investment portfolios.

For Vehicles

●  Georgia allows vehicle titles to include a JTWROS designation. To do this, you'll need to apply for a new title at the Department of Revenue, explicitly stating the survivorship intent.

Advantages and Disadvantages of JTWROS

While JTWROS offers several benefits, it's not without its challenges. Understanding both sides can help you make an informed decision.

Advantages

●  Avoidance of Probate: Assets automatically transfer to the surviving owner(s) without going through probate, simplifying the process.

●  Immediate Transfer of Ownership: There's no delay in transferring the property, ensuring continuity for the surviving co-owner(s).

Disadvantages

●  Loss of Control: One owner cannot leave their share to someone other than the surviving joint tenant(s) when they pass away.

●  Unintended Consequences: In blended families or second marriages, JTWROS can lead to disputes or outcomes that don't align with your intentions.

●  Tax Implications: Survivors may face potential tax consequences, such as increased capital gains taxes when the property is sold.

Challenging JTWROS in Georgia

While JTWROS provides clear survivorship rights, there are situations where it may be challenged. Common grounds include:

●  Duress or Undue Influence: If one party was pressured into creating the joint tenancy, it could be contested.

●  Lack of Mental Capacity: A co-owner who lacked the mental capacity to understand the arrangement at the time of its creation may have grounds to invalidate it.

●  Fraud: If the joint tenancy was established through fraudulent means, it can be legally disputed.

When Right of Survivorship Might Not Be the Best Option

While JTWROS is a practical solution for many, it's not always the right fit. Situations where it might not be suitable include:

●  When you want your share of the property to go to someone other than the co-owner(s), such as a child or sibling.

●  If you wish to retain control over how the property is distributed after your death.

●  When there are concerns about the other co-owner's financial responsibility or personal circumstances.

Planning for Your Future? Secure Your Legacy with Peach State Wills & Trusts.

The right of survivorship can be a valuable tool in estate planning, but it's not a one-size-fits-all solution. At Peach State Wills & Trusts, we work closely with you to create an estate plan that reflects your priorities and protects your loved ones.

If you're ready to learn more about how the right of survivorship or other estate planning strategies can work for you, we're here to help, you can also download our free guide here. Call us at 678-344-5342 or visit our Contact Us page to schedule a consultation today.

Let's work together to secure your legacy and provide peace of mind for you and your family.