We occasionally receive calls from people wanting to set up a joint tenancy with right of survivorship (or “joint tenancy” for short) for their property as a form of estate planning. They’ve usually heard about this from friends or found it on the Internet as a way to avoid probate or having to make a Will.
Most of the time, once we discuss the facts of joint tenancy with them, they choose to do something else. Why? Because joint tenancy can be useful in certain situations, but there are some very definite risks.
What is a joint tenancy? It is one of two ways in Georgia for more than one person to own property together.* In joint tenancy, if one of the co-owners dies, their interest in the property automatically passes to the other co-owner. Nothing else is required; not probate, not a deed, not anything. This is the “right of survivorship;” the survivor gets the property.
The other way to co-own property is called tenancy in common (also sometimes called “co-tenancy”).** With a tenancy in common, the interest of a deceased co-owner passes to their estate, which (usually) must be probated in order to pass the interest to their heirs or beneficiaries. It is not automatic, and the other co-owner may or may not receive any part of the deceased co-owner’s interest in the property.
Today, most married couples who buy property together own the property as joint tenants with rights of survivorship. But this was not always the case. For most of Georgia’s history, joint tenancy was actually illegal. But in 1976, the Georgia legislature passed a law that allowed joint tenancy to exist and gave a set of “magic words” that are required to create a joint tenancy.***
That law also allows one (or both) of the co-owners to end the joint tenancy (called “severing”) by conveying their ownership interest to someone else.**** When severing happens, the joint tenancy is converted to a tenancy in common, and the right of survivorship goes away.
That’s what a joint tenancy is, its benefits, how it works, how it’s created, and how it can end. Now you’re ready to understand about joint tenancy’s risks and alternatives, which we’ll discuss in Part 2 and Part 3.
*While it’s possible for three or more people to co-own property, most of the time it’s just two.
** Some states have a third type of co-ownership, called tenancy by the entirety. Georgia does not have this, so we will not discuss it here.
***O.C.G.A. § 44-6-190. Whether a deed actually creates a joint tenancy is not always clear. If you are uncertain about whether a deed has created a joint tenancy, have a real estate attorney review the deed.
****This is a huge oversimplification, in order to avoid going deep into the weeds of property law. If you really want to know about severing joint tenancy, you’ll have to take me to lunch. And definitely check with a real estate attorney to see whether a recorded document has severed a joint tenancy.
Photo by Eduard Militaru on Unsplash .
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The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information, please contact us.