The Magic Words: “Joint Tenants with Right of Survivorship”

When it comes to your home, a few words on your deed can determine whether your family receives the property automatically or has to go through Probate Court.

Those magic words are “Joint Tenants with Right of Survivorship.”

What Does Joint Tenancy with Right of Survivorship Mean?

Under O.C.G.A. § 44-6-190, a deed can create a joint interest with survivorship between two or more people. Georgia law recognizes language such as “joint tenants,” “joint tenants and not as tenants in common,” “joint tenants with survivorship,” or “jointly with survivorship.”

When one joint tenant dies, that person’s interest passes to the surviving joint tenant or tenants. The deceased owner’s interest does not have to pass through probate before the surviving joint tenant receives it.

For example, if a husband and wife own their home as Joint Tenants with Right of Survivorship and the husband dies, his interest passes to his wife through the survivorship provisions of the deed.

The Deed Can Override Your Will

This surprises many people.

If your property is properly titled as Joint Tenants with Right of Survivorship, your Will generally cannot be used to leave your interest in that property to someone else at your death. The survivorship provision in the deed controls.

Georgia courts have recognized this principle. In Harbin v. Harbin, the surviving joint tenant became the sole owner at death, and the property did not become part of the deceased owner’s probate estate despite provisions in the Will concerning the property.  Simply put, your Will does not control property that passes automatically by right of survivorship.

What If the Deed Does Not Include a Right of Survivorship?

Georgia law presumes that property conveyed to two or more people is owned in common without survivorship unless the deed expressly creates a survivorship interest. O.C.G.A. § 44-6-190(a)(2).

This is commonly known as ownership as Tenants in Common. Georgia’s laws concerning co-tenancy are also addressed in O.C.G.A. § 44-6-120.

Tenants in Common do not have a right of survivorship. When one owner dies, that person’s ownership interest passes through the deceased owner’s estate according to a valid Will or Georgia’s intestacy laws.

For example, if Mom and Dad own a house as Tenants in Common and Dad dies, Mom does not automatically become the owner of Dad’s share simply because she is his spouse and the surviving co owner.

If there is no other valid non-probate transfer mechanism in place, Dad’s interest generally must be addressed through Probate Court before it can be transferred to his beneficiaries or heirs.

Know What Your Deed Says

Do not assume that because both spouses’ names, or a parent and child’s names, appear on a deed, the surviving owner automatically receives the entire property.

The exact language on the deed matters.

“Tenants in Common” and “Joint Tenants with Right of Survivorship” can produce very different results when someone dies.  Take a few minutes to look at your deed. Those few magic words may determine whether your family receives the property automatically or has to go through Probate Court.  Know your deed. Know how your property will transfer. Plan ahead.

Contact our Norcross estate planning lawyer at Bowman Law Firm today for a consultation and take the first step toward securing your legacy.