Although there are some states that may have that rule, Georgia is not one of them. In Georgia there are different ways to hold title to a property. The most popular ways are tenants in common, for only one spouse to hold title, and joint tenants with right of survivorship. However, one makes the transfer of property after your spouse’s death easy, and the others can be more complicated. Tenants in common is when each spouse owns 50% of the property, and there is no automatic transfer upon the death of a spouse. If the property is only in one spouse’s name, when that spouse dies his or her estate then owns the property. Thus, the surviving spouse will have to go through the probate process to transfer title. Joint tenants with right of survivorship allows for the automatic transfer to the surviving spouse with a simple affidavit. This can be used as a tool to avoid probate.
For a property to transfer to the surviving spouse, you must have the specific language “with right of survivorship”. The majority of attorneys draft deeds with this language for married couples, unless told otherwise. However, about 10 to 15 years ago it was not as popular. That is why it is important to look at your deed and see how you and your spouse hold title, and if you have aging parents, to look at how they hold title. A common problem that arises in the home buying and selling process is when a surviving spouse assumes that the house automatically transferred to him or her. However, when the house is ready to close, the process is delayed because probate proceedings must begin in order to transfer the title to the surviving spouse’s name in order to sell the property. Another common problem occurs when the surviving spouse dies. If the surviving spouse did not transfer title at the time of the first spouse’s death, this can create a more complex and costly probate process. Instead of going through one probate proceeding, your personal representative could potentially have to go through two simultaneous probate proceedings.
If you do not have the specific language, “right of survivorship” on your deed, it is an easy change. We can draft a new deed for you to sign that includes the special language. This is an easy way to avoid probating your real property when your spouse passes, and it can make the probate process easier when the surviving spouse passes.