Does real estate always go through probate?

Real property is often an issue in a probate estate, and it can be titled in various ways. How real estate is titled can greatly affect the way it is transferred after a person’s passing.

For example, if there is only one owner the property will transfer to whoever is designated in the will, or if there is no will it will pass to the heirs of the estate. These transfers are accomplished during the process of settling an estate through probate court.

If there are two or more owners of a property, then there are a couple of different ways the property could be titled. The one that is easiest for transfer purposes is called joint tenants with right of survivorship. This is a commonly used way to title property in the names of spouses because it provides for an easy transition of ownership to the living owner without having to go through probate court to transfer the property. When title is held this way and an owner dies, the transfer happens automatically. That said, the best practice is make a filing in the real estate records to tell the world that the deceased owner has passed to prevent any messy title issues later on.

If the property is not titled jointly but is stilled owned by two people, it is called “tenants in common”. This form of ownership does not allow for automatic transfer of ownership to the surviving person or spouse listed on the deed. Each person listed on the deed would own an equal share of the property. In the event of an owner passing, that owner’s estate would need to be probated to legally transfer their ownership to their legal heirs or beneficiaries.

Also, it is important to note that Georgia does not recognize “tenants by the entirety”, which is used in some states to create joint ownership for only married couples. So if a deed for property in Georgia states that the owners are “tenants by the entirety” this would only create a tenants in common ownership, unless there is specific language to state that it is intended to be joint ownership, and the property would need to go through the probate process to be transferred to the deceased’s heirs.

Dealing with the different types of property titling can sometimes be confusing. If you are handling an estate, reach out to our team to schedule a complimentary consultation to find out if we can help make it easier for you.

Disclaimer: The information above is provided for general information only and should not be considered legal advice. Our probate attorneys provide legal advice to our clients after talking about the specific circumstances of the client’s situation. Our law firm cannot give you legal advice unless we understand your situation by talking with you. Please contact our law office to receive specific information about your situation.