One of the most frequently asked questions that we get from clients is about passing down their real estate to their loved ones, especially if it is owned by multiple people. Essentially, they want to know if they are able to pass down their real estate to the people they want and how the ownership of that real estate affects their ability to do so.
In Georgia, we have two main ways that multiple people can own the same piece of real estate together: joint tenancy, with the right of survivorship, and tenants in common.
Joint Tenancy: Joint tenancy, also called joint tenants with right of survivorship (JTWROS), is when two or more people own property together in such a way that when one owner dies, his or her interest then goes to the other surviving owners, who then own the entire property. This means that a joint tenant does not have an interest in the property that can be given to someone else via a will or a trust, for example. If the property was held as joint tenants with rights of survivorship, that property would not generally have to go through a probate process, and instead the entire property would immediately be vested in the surviving spouse. However, if the second owner died, the property would usually go through probate, unless the surviving owner had added another joint tenant or placed the property in a trust. (A quick word of caution – don't be too quick to add a child on a deed as a joint tenant after your spouse dies. While that might help keep the property out of probate, it can have disastrous tax consequences and can also put your property at risk from the co-owner's creditors. Talk with a good estate planning lawyer before making any changes to the deeds – adding a new joint tenant is likely not recommended in most situations).
Here's a common scenario using joint tenancy. You have a man and woman, a married couple, who buy a house together, and the deed lists their names and says that they own it as “joint tenants with rights of survivorship”. Suppose that the husband dies first. Upon his death, his wife now owns all of the property, subject to any mortgage or security interest, and the husband's estate has no interest in the property. The moment the husband died, the wife became the sole owner of the property. For that reason, owning property as joint tenants is a common estate planning method, and often when couples buy a house, it is deeded in that manner.
Tenants in Common: With tenants in common (TIC), one owner has an undivided interest in the entire property. So, typically, when a couple owns a property as tenants in common, upon the death of the first spouse, their percentage of the property will need to go through probate for it to be distributed to the beneficiaries or heirs, depending on whether there was a will or not. Suppose that a husband and wife purchase a house together as “tenants in common” and, unfortunately, the husband dies. Because they are tenants in common and not joint tenants, the husband's interest in the property now belongs to his estate and, in turn, his will (or the law of intestate succession if he had no will) is going to determine where the decedent's ownership interest goes – it does not automatically get transferred to the other tenant in common.
Knowing how your property is owned and ensuring that the ownership is in line with your goals and objectives is a key part of estate planning and ensuring that your wishes are known and will be followed after your death. If you want to learn more about estate planning in Georgia, we have a free guide to estate planning that will give you a high-level overview of the process and how we can help, and of course if you have questions or if we can be of any help to you, we welcome you to give us a call at 678-344-5342.
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