Property Owners In Georgia Often Assume Joint Tenancy with Rights of Survivorship Is the Property Default
Joint Tenancy with Rights of Survivorship – A Good Property Default?
Whether you buy property in Georgia with a spouse, a family member, or friend – permanent residence or vacation residence – there are things to consider. That single, incorrect assumption of Joint Tenancy with Rights of Survivorship (JTWROS) can carry serious consequences. Specifically, when one of the owners passes away.
Joint Tenancy with Rights of Survivorship is the default in some, but certainly not all states. Georgia is one of those states that has Tenants-in-Common (TIC) as the property default. When buying property in Georgia, it’s important to know the difference between the two. And to be sure which one you want as your default position.
Understanding TIC vs. JTWROS
In Georgia’s default tenants-in-common arrangement, each owner holds an individual, undivided interest in the property. In this case, when one owner dies, their share passes to their estate or heirs, not automatically to the other co-owner(s). This is true even if the co-owners are family members or spouses. Without clear language in the deed specifying a right of survivorship, Georgia courts will assume a tenancy-in-common exists.
On the other hand, when Joint Tenancy with Rights of Survivorship is explicitly stated in the deed, the surviving co-owners automatically inherit the deceased owner’s share, regardless of what the deceased’s will or estate plan says. This automatic transfer happens outside of probate, making JTWROS an efficient estate planning tool. However, I repeat: this form of ownership must be explicitly stated in the deed.
Risks of Wrong Assumptions
Wrongly thinking that your property deed automatically defaults to JTWROS can lead to disputes, delays, and legal costs. Here are some common risks:
- Unintended Heirs: If a property owner dies and the deed is a tenancy-in-common (not JTWROS), the deceased owner’s share will go to their heirs or estate. This can result in unintended third parties owning part of the property, which may not align with the original owners’ intentions.
- Estate Complications: When TIC is the default, the deceased’s share must go through probate which can be time-consuming and costly. This also opens the door to creditor claims or will contests.
- Family Conflict: Family members may expect to inherit the property automatically, only to discover it’s partially owned by someone else or must go through probate. This can strain relationships and cause unnecessary conflict.
- Clouded Title: If the survivorship assumption is incorrect, the title may become legally unclear, making it difficult to sell, refinance, or otherwise transfer the property.
How to Avoid Property Default Pitfalls
- Create a survivorship deed and review the deed carefully. Confirm whether survivorship language is explicitly included. In Georgia, phrases like “as joint tenants with rights of survivorship, and not as tenants in common” must be clearly stated.
- Consult an estate and asset protection attorney during any property transaction to ensure the deed aligns with your intentions.
- Don’t rely on assumptions or templates. Even standard forms may default to tenants-in-common if not properly modified.
If you co-own property in Georgia and are not sure if you will automatically default to TIC or if you have specified JTWROS, call my office today at (470) 235-7868. Let’s review your deed and make certain it aligns with your wishes to avoid probate, confusion, and disagreements between loved ones.
Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!
