Joint Tenancy with Rights of Survivorship or Tenancy in Common: Which Estate Planning Option is Right for You?
Creating an estate plan involves thinking about every asset you own and coming up with a way to transfer those assets to the heirs of your choice without creating unintended negative consequences for your family.
If you’re like most people, your primary residence is one of the most important assets your estate plan needs to address. The way your home is deeded makes a big difference. There’s a right way and a wrong way to do this, and the right way for you depends on your situation.
Let’s look at the two most common ways to hold property ownership in Georgia: Joint Tenancy with Rights of Survivorship and Tenancy in Common.
Joint Tenancy with Rights of Survivorship
In Joint Tenancy with Rights of Survivorship, each owner has an undivided interest in the property. This means that each owner has an equal share of the property.
The right of survivorship is the key in this option. If you have Joint Tenancy with Rights of Survivorship and one owner dies, then the surviving owners by operation of law automatically inherit the interest that was owned by the deceased owner. There's no probate and the person's Will doesn't apply. The deceased owner's interest in the property cannot be passed on to their heirs; it passes directly to the surviving owner or owners.
Joint Tenancy with Rights of Survivorship requires the unity of time, title, interest, and possession. This means that all owners must acquire the property at the same time, through the same deed, with equal ownership interests, and with the right to possess the entire property.
Tenancy in Common
In Tenancy in Common, each owner also has an undivided interest in the property, but those interests do not have to be equal. Owners can hold different percentages of ownership.
Unlike Joint Tenancy with Rights of Survivorship, there is no right of survivorship in Tenancy in Common. If one owner dies, their share of the property is passed to their heirs through their Will or through the Georgia laws of intestacy, rather than automatically transferring to the surviving owner(s).
Tenants in common can acquire their interests in the property at different times, through different deeds, and with different ownership interests. Each tenant in common has the right to possess the entire property, regardless of their ownership percentage.
Estate Planning Impact in Real Life
Let’s look at an example. Say there’s a husband and wife who own property together. They have both been married once before. Each spouse wants his or her interest in the home to pass to their individual children.
Tenancy in Common will accomplish this. If one of them passes away, their 50 percent interest will be distributed according to the terms of their Will. But if they are joint tenants with rights of survivorship and one of them passes, then the surviving spouse will end up owning 100 percent of the property. When that person passes, 100 percent of the property will go to their children, shutting out the children of the spouse who died first.
How often do people choose the wrong option? It happens more than you think. Problems happen when you focus on one goal—such as avoiding probate—while overlooking another equally important goal—such as making sure a portion of property passes to children from a first marriage.
This underscores the importance of working with a specialist. When you work with a firm that specializes in estate planning, you get help identifying all your goals and then creating legal documents that enable you to meet them. We help you understand all the scenarios and explain how things will play out in each scenario.
Would you like to be certain that your estate planning documents will work as intended? Kimbrough Law can help. Call 706.850.6910 to schedule a confidential consultation.
