When entering into a joint property ownership with someone else, you must consider many things, such as what share each of you owns and what will happen with the estate when one of the owners dies before the other.
From a legal point of view, this is called the right of survivorship and affects both the distribution of your entire property after you pass away and the lives of your loved ones.
Therefore, it’s important to understand what this right means, its pros and cons, how it differs from a will, its impact on your estate distribution, and what the law says about this component of real estate acquisition and how it is treated in specific situations.
This article serves as a guide to help you navigate the complex process of survivorship rights. If you have any uncertainties and want to ensure everything is handled correctly, it’s advisable to seek assistance from an experienced probate attorney.
The right of survivorship is an important aspect of co-owning property and refers to the legal right of a joint tenant to claim real or personal property upon the death of a co-holder. It typically applies to assets held in joint tenancy agreements and takes effect automatically.
Therefore, the possession is not a part of the deceased’s estate and can’t be subject to any claim from other beneficiaries, heirs, or creditors of the late person. As such, it serves as an essential planning tool that allows asset transfer outside of probate.
It’s worth mentioning that the right of survivorship is non-transferable. It ensures that upon the death of a joint tenant, their ownership share will be equally distributed to the remaining owners.
Real Estate
Joint Tenants With Rights Of Survivorship (JTWROS) is a term for how two or more people can own a real property together.
If you hold a home in joint tenants with a right of survivorship arrangement, it means that when there are two names on the deed, and one person dies, his shares of the property automatically transfer to the surviving owners and don’t require the opening of an estate to be effective.
When buying a property, you have to sign a document (property deed) specifying that the asset’s ownership passes from the seller to you (the buyer). For JTWROS to work, the property title must expressly include the right of survivorship.
Financial Accounts
Joint checking and savings accounts are typically used by married couples or business partners who want to simplify their finances and manage their expenses more easily. A Joint Tenants With Rights Of Survivorship bank account is one of the most popular forms of joint accounts, giving equal rights to all account holders.
This also means that when one of the joint owners dies, the surviving owner(s) automatically inherit the account balance and get full ownership of the financial account without going through probate.
The financial institution will require you to fill out specific paperwork and other legal documents to place a beneficiary on the account or add a joint holder.
A survivorship deed is a document under which the parties of a joint tenancy arrangement set out the terms for transferring their ownership interest upon death.
The survivorship deed must include a grantor and a beneficiary, some form of consideration (often a minimal amount if it is between spouses), and it must be notarized.
Such a document ensures that the beneficiary receives full ownership of the property upon the grantor’s death without going through probate, essentially clarifying the right of survivorship in a written, legally binding contract.
Joint tenancy simplifies property transfer after death, and the surviving owner avoids probate court. – Unlike other property arrangements, in the event of the death of one of the co-owners, the deceased’s property ownership is transferred automatically to the surviving owners without any probate court actions being required.
Joint tenancy usually prevents legal issues with persons who might claim ownership. – However, someone can still challenge the executed deed in some specific situations.
Equal financial responsibility – Since all parties share the asset in a jointly owned property, they also share any liabilities (mortgages, loans, etc.) associated with the estate. This shared responsibility means that all owners act in the best interest of a common goal; otherwise, they would be responsible for the debts.
Continuity of right of survivorship joint tenancy – Regardless of whether there are two or more co-owners when one of them dies, the surviving tenants immediately take legal possession of the entire asset in lieu of the deceased co-owner. As mentioned, they will never have to share possession, can avoid probate, and may not transfer ownership rights to another.
Joint tenancy supersedes the terms of a will if one of the tenants changes his mind. If you pass away, you cannot transfer your property interest to your heirs.
According to JTWROS, when a property holder dies, the deceased owner’s share passes immediately to the surviving partner. If you want to transfer your house share to a child, you must look for another form of ownership without the right of survivorship.
If one owner fails to keep up with mortgage payments, both are responsible. – In this case of joint tenancies, all owners are equally responsible for making mortgage payments on a property. If one of the owners cannot pay, the other owner(s) will have to cover the shortfall, which can become a difficult financial burden to bear.
Removing a joint tenant from a deed requires that person’s approval. – In this property model, one co-owner cannot remove the other without their consent and signature.
Losing control of assets – After the joint owner’s death, the remaining owner can change the ownership structure, including deciding who inherits the assets after they pass away. So, according to JTWROS, you could lose control of what happens to your assets if you’re the first to die.
Yes, Georgia recognizes Joint Tenancy with the Right of Survivorship (JTWROS) as a common form of joint ownership. This form allows multiple people or entities to own a title interest in the property and comes with various rights and responsibilities.
According to JTWROS, none of the joint tenants can bequeath the jointly held property to beneficiaries named in a will, nor can a joint tenant’s heirs inherit if that joint tenant dies in intestacy or without a will.
The right of survivorship works on the basis that if there are jointly held properties and one owner passes, the surviving joint tenant(s) will automatically receive the part of the property owned previously by the deceased.
For JTWROS to work, the deed must expressly state that the property is held as joint tenants with rights of survivorship.
The right of survivorship continues until the last surviving owner, who will have absorbed all shares of the property’s interest and becomes the holder with sole ownership.
They can do whatever they’d like with the estate and can bequeath it to anyone in their will. If the last owner dies intestate, the property is subject to the rules of intestacy.
For example, a couple decides to buy a house together. Both are on the deed and have an equal interest in the property with the right of survivorship.
When one tenant dies, the surviving spouse will automatically inherit the deceased’s share and will have a 100% interest in the property. This way, their deceased spouse’s filed share will not be passed on to another beneficiary, for example, their child from a previous marriage.
If there is a desire to update a current deed to JTWROS, there are ways to execute new survivorship deeds to the property.
In the case that all parties are living, it is best to speak with a real estate attorney regarding the best course of action to execute the new deed according to the local laws. If one of the parties has passed away, you should talk to a probate attorney about the next steps.
The financial institution will require you to fill out specific paperwork to place a beneficiary on the account or add a joint holder.
When there are two names on the deed and one person dies in Georgia, most of the time, the question is, “How do I know if I have the right of survivorship?”
To answer this question, we should consider two situations:
Examine the deed to the property for specific language stating that the asset is owned by Joint Tenants with Rights of Survivorship.
It’s advisable to request assistance from a probate attorney who can help you determine if the property is owned as JTWROS.
It depends on how you and the joint owner decide to keep the account. To find out if you have the right of survivorship on a joint account, you can look up the details in your account agreement.
You could also ask the financial institution to understand better if you have been listed as a designated beneficiary on the account in question.
Joint Tenants With Rights of Survivorship can be challenged or contested under certain circumstances.
Some common reasons for challenging this right include duress, lack of capacity, fraud, undue influence, and other reasons not listed here.
This is a very complicated legal matter, and if this is your situation, we strongly recommend speaking with an experienced probate attorney.
It’s easy to confuse a will and JTWROS because they are both document types that deal with property and the transfer of property ownership. However, some key differences exist between a right of survivorship vs. will to consider.
While a will typically goes through a probate process, properties held as JTWROS are considered non-probate assets and are distributed directly to the named beneficiaries.
Probate assets are possessions either titled solely in the deceased’s name or have a shared interest with another party (but without survivorship on the title).
If the deceased had a will, their testament would state how the probate assets would be distributed to the surviving parties.
Non-probate assets skip probate and go directly to a named beneficiary. Real estate with multiple owners and titled JTWROS is considered a non-probate asset, and the will of a deceased owner would not dictate the distribution of the property.
Bank accounts with rights of survivorship or a named beneficiary are also considered non-probate assets that would not be dictated by a will.
In both cases, a will cannot control the properties.
If you hold a home in a JTWROS arrangement, it means that both of you share the property equally and when one owner dies, his property interest automatically transfers to all the surviving owners and doesn’t require the opening of an estate to be effective.
Tenants in Common (abbreviated as TIC) means that each person on the deed holds a certain percentage of the property.
When one of the co-owners dies, their interest in the property will go through the probate process to be distributed to their heirs or beneficiaries.
If the deceased owner had a testament, it would determine who would receive their share of the estate.
It depends on how the real estate is deeded. It is best to review the deed with an experienced probate attorney.
As mentioned earlier, when one of the owners passes away, his property ownership automatically transfers to all the surviving owners without probate.
Then, it is assumed to be owned as Tenants in Common, where, unlike the JTWROS, each party has its own transferable interest in the property. The tenants can distribute the property shares to their heirs as they wish.
This could be placed in a will, dictating how the property would be dispersed.
Both the Right of Survivorship and Wills act after the owner’s death. In most cases, joint tenancy supersedes the terms of a will, and the properties with the right of survivorship are excluded from the testament.
In the case of JTWROS, the deceased’s share of the property passes directly to the surviving co-owners. When the surviving tenant is the sole owner, the property loses its survivorship status. In his case, the last owner can deem the property part of their estate and transfer the asset according to their will.
In the case of financial accounts held as joint accounts, after the death of one co-owner, the financial institution may also require that the sole living owner open a new account and transfer the funds from the previous joint account to the new account.
There are also cases where survivorship and will work synergistically. In your will, you can name a beneficiary of the asset if your spouse predeceases you or both of you pass away simultaneously.
We recommend speaking with a CPA or tax professional regarding any potential estate taxes associated with community property with rights of survivorship.
Depending on your estate planning strategy and wishes regarding distributing your estate after your death, you may opt for one of the alternatives to the right of survivorship:
A will – allows you to decide who inherits your estate. Everything is distributed according to your specifications rather than automatically transferring to a spouse or joint tenant. However, wills must still go through the probate process.
Transfer on death deed (TOD) – is an arrangement that enables you to name a beneficiary who will inherit an asset upon your death, bypassing the probate process. You should note that the beneficiary has no legal rights to the asset while you are alive.
In Georgia, the asset could be a financial account, like a bank account or stock portfolio.
Revocable living trust – This estate planning tool allows you to place your property into a trust during your lifetime, with the ability to amend or revoke it as you wish. Upon your death, the property is passed directly to your designated beneficiaries without going through probate.
Owning a property in a joint tenant with a right of survivorship agreement not only gives you and your partner an equal portion of the asset, but you also share the responsibility equally. However, you should know that if you die, your share goes to the surviving tenant, meaning you can’t leave your share to any heirs.
For more information about Joint Tenants With Right Of Survivorship and other probate topics, contact our office at (770) 796-4582 to schedule a consultation.
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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.
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