For many of us, our home is the most valuable asset we own. Yet many Georgia residents who own their home jointly with a spouse or other family member do not understand what would happen to the ownership of that home if one of the owners died.
In Georgia, for ownership of real estate to pass to the surviving owner at the first death, the Deed must have language such as “as joint tenants with right of survivorship”. If the Deed simply has two names as the owners, but has no reference to right of survivorship, that means each person owns fifty percent. When one owner dies, that fifty percent must go through probate.
Home owners tend to assume that if there are two names on the Deed, ownership will pass automatically to the surviving owner. That assumption often leads to a delay in selling the home, because the estate of the first owner to die has to be probated to pass title to that fifty percent.
If the deceased owner has a Will which leaves that fifty percent to the surviving owner, the Executor of the deceased owner’s estate can sign an Executor’s Deed of Assent, conveying that fifty percent to the survivor. But if the deceased owner did not have a Will, things could become very complicated.
For example, if there is no Will, and the deceased owner was survived by a spouse and two children, Georgia law says that the children and surviving spouse each get a one third share of the deceased’s estate. That means the two children would each own one third of the deceased owner’s fifty percent. If it is a second marriage, where the deceased’s two children don’t get along with their stepparent, that’s not a pleasant result for the surviving spouse.
If a Deed is not with right of survivorship, there is an easy solution. The owners can sign a new Deed making it with right of survivorship. The first step, though is carefully reading your Deed to determine which kind of joint ownership it is.
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