When buyers and sellers negotiate a real estate purchase, they don’t only negotiate the price—there are also contingencies to be negotiated. Contingencies are conditions that ... read more
When it comes to holding the title to property in Georgia, it’s important to plan ahead. In Georgia, there are two ways to hold title when more than one person buys a house: 1) tenants in common or 2) joint tenants with rights of survivorship. Under these two types of ownership, there are different results if one of the co-tenants (or co-owners) dies. Therefore, it’s key for you to consider how you’re going to approach holding the title before you close on a property. In the end, your decision really matters.
Tenants in Common
Under Georgia law, the default manner of holding title is as tenants in common. Two or more people owning property as tenants in common means that they each own an undivided interest in the property. And, should one of the co-tenants (co-owners) die, the deceased’s share automatically goes to his or her estate—the share does not go directly to the co-owner. Ultimately, to sell the property or obtain a new loan, the surviving co-owner will have to administer or probate the deceased’s estate through the court system—until that time, the property is in limbo. Fortunately, the probate process is not too costly or drawn out in Georgia, but it could hold up a quick sale. This form of ownership can preserve a co-tenant’s share of his or her estate on behalf of an heir or heirs, so it is a beneficial option for non-married owners or investors.
Result: Probate is needed in this situation.
Joint Tenants with Rights of Survivorship
The other manner of holding the title to property in Georgia is as joint tenants with rights of survivorship. This method is similar to tenancy by the entirety, which is common in many states as the default for married couples purchasing property. In Georgia, however, if property owners want to hold title as joint tenants with rights of survivorship, then certain language must be included in their deed. Spouses or other family members will often hold title in this manner because it avoids the probate process. When one of the joint tenants dies, that individual’s property interest automatically goes to, or vests, in the surviving owners. This automatic transfer of interest saves time, expense and stress after a loved one’s death. Joint tenants with rights of survivorship do not have to be married to one another; occasionally, children, siblings or even parents are included as joint tenants for estate planning purposes.
Result: No probate is needed in this instance.
Put Your Plans in Writing
The deed you receive at a real estate closing will specify which type of ownership you have. So, it’s crucial to consider your estate planning needs and work with your closing attorney to make sure not only that you hold title to property in the manner best suited for you and your family, but also that your decision is specified in the deed.
William Phalen is a partner with the firm of Sherman & Phalen, LLC. For more than 20 years, Sherman & Phalen, LLC, has conducted residential and commercial real estate closings in Georgia, Florida and South Carolina. Phalen is the past president of the Georgia Real Estate Closing Attorneys Association and is on the Executive Board of the State Bar of Georgia’s Real Property Law Section. As a board member of both organizations, he has worked on legislative matters that include defining and policing the unauthorized practice of law when performing real estate transactions, the licensing of attorneys with the insurance commissioner’s office and the manner of issuing liens for unpaid water bills, among others.