Summary: People may believe their property will be distributed according to their will, but as Siedentopf Law explains, the property can pass outside of an estate depending on how it is titled. That’s why it’s important to understand the different types of ownership (sole ownership, joint ownership, ownership in trust) and whether any title changes are needed.
“Titling” refers to the legal form of property ownership, as governed by state law (for the purposes of this blog, the state of Georgia). Many people may think that their assets and property will be distributed according to their will or their trust, but in actuality, property can pass outside of their estate depending on how it is titled. Therefore, it is important to understand the different types of ownership, the benefits or consequences to taking title to property, and whether any changes to the titles are needed.
Sole Ownership: Sole ownership, also known as “Fee Simple,” means that one person owns all of the property. It is his or her decision whether to donate that property, sell it, or leave it to another person(s) at death. Property owned by “fee simple” is controlled by a will and subject to probate (unless the property is titled in the name of an individual’s living trust).
Joint Ownership: Under Georgia law, there are two types of joint ownership. The first, known as “Joint Ownership with Rights of Survivorship” means that two or more parties have simultaneous ownership of a property. When one of those parties dies, their share of the property passes to the surviving owner(s). The property does not pass through probate. Joint Ownership with Rights of Survivorship takes precedence over any other potential claims on the property.
The second type of joint ownership in Georgia is “Joint Tenants in Common.” This is when two or more parties have an interest in property, although, none of those parties own a specific part of it. When one of the parties dies, the property does not automatically pass to the survivor(s). The deceased’s share must first pass through their will or through intestacy. Property owned by “Joint Tenants in Common” can sometimes lead to legal issues, as there can inadvertently be multiple owners attached to one piece of property.
Georgia does not allow joint ownership known in other states as “joint tenancy in the entirety” or “common property estate.”
Ownership in Trust: A final type of property titling is “Ownership in Trust.” This type of ownership can vary widely, as there are many different types of trusts, all designed to accomplish a variety of goals. The exact terms of the trust will control the final disposition of the property. It is important to note that the type of trust may also impact an individual’s or trustee’s income and estate taxes.
For more information about property titling, or if you need help changing or updating a title, you can contact the Siedentopf Law via our website at EstateLawAtlanta.com or by calling us at (404) 736 – 6066.
© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.
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