The biggest mistake married homeowners make in Georgia is incorrectly assuming the surviving spouse will get the marital home once the first spouse passes away. More often than not, most of the surviving spouses I've spoken with are confused in the way their property is titled. They assume the property is titled jointly and that the property will pass to the surviving spouse. But, in Georgia, it depends on how the property is titled.
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Types of ownership
Generally, there are different types of ownership, but the two that should concern most married homeowners are called "joint tenancy in common" and "joint tenancy with rights of survivorship." Under a joint tenancy in common ownership, once the first spouse dies, their interest in the marital home must be probated. Under a joint tenancy with rights of survivorship ownership, once the first spouse dies, their interest passes to the surviving spouse.
Most couples assume their property is held under a rights of survivorship ownership. Unfortunately, that is not the default in Georgia. The default is joint tenancy in common. So, if the deed doesn't state that it is with rights of survivorship, then it may be need to be probated once the first spouse dies.
Take the time to find and review the deed to your home. Typically, a copy is given to the new owner at the closing. You'll want to make sure, if you are married and you are expecting the property to pass to your spouse upon your passing, that it is held with rights of survivorship. Otherwise, you may be making the biggest mistake married homeowners make with estate planning. I
t's important to work with an estate planning attorney with an excellent working knowledge of the practical effects of the property laws, trust code, and the probate code - because there's no place like home. If you would like to have your plan set up the right way, the first time, call us at (678) 809-4922.
John P. Farrell, Esq.
Mr. Farrell is the author of Estate Planning for the Modern Family: A Georgian's Guide to Wills, Trusts, and Powers of Attorney. You can learn about his book here and learn more about John here. Join the more than 1,500 people who subscribe to his Newsletter here. Feel free to send John a message here.
