Title Ownership For Married Couples

Posted on December 16, 2019 by Nancy Liu | Category: Real Estate

If two or more buyers plan to buy a piece of real estate property together, how to set up their ownership properly is very important for them. Usually, there are two types of concurrent ownership. One is Tenants in Common, the other is Joint Tenants with Right of Survivorship.

In Tenants in Common situation, each owner owns equal percentage of property’s interest. For example, if two owners in Tenants in common title, each owns 50% interest on the property. Each common owner’s interest in the real property will pass to their own heirs, instead of to the other co-owner of the property. When the property is sold, the previous owner’s heirs and the other owner all have to sign the transfer deed. Normally, if buyers are a married couple, Joint Tenants with Right of Survivorship title is more appropriate for them. Under Joint Tenants with Right of Survivorship, if one owner passes away, his interest in the property will automatically pass to the other owner, bypassing any will or probate procedure.

In Georgia, Tenants in Common is the default title ownership if buyers do not specify what types of ownership in their warranty deed. For instance, if A transfers the house to “B and C” without any words after their names, B and C are treated as Tenants in Common. In another word, if B and C want to choose their ownership as Joint Tenants with Right of Survivorship, they must clearly state “B and C AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP” in their warranty deed. The following example explains the importance of specifying Joint Tenants with Right of Survivorship when buying a property.

Without knowing the differences between different types of ownership, Husband H and his wife W simply put the title ownership under their names as “H and W”, without adding any words after their names in their warranty deed. This means that H and W hold title as Tenants in Common. This means H holds 50%, and W holds 50% interest in the house. The wife W died in a car accident a few years later without leaving any will. H and W have two minor kids. When Husband H decided to sell this house, his closing attorney realized that Husband H and his wife W are under Tenants in Common, not Joint Tenants with Right of Survivorship. Wife W’s 50% ownership in the house did not automatically pass to H. According to law, W’s ownership passed to H and their two minor kids. Therefore, H is not 100% owner of the house. Now when H wanted to sell the house, the house is co-owned by H and his two minor kids. H cannot sign on behalf of the minor kids without court order. Therefore, in order to sell his house, Husband H has to go through the probate process to apply for guardianship for the minor kids and request court’s approval for him to sell the house. All of these procedures take several moths to finish. Buyer could not wait and baited out. Husband H not only lost the deal, he also had to spend several thousands dollars on attorney fees before he can sell the house.

If your warranty deed does not indicate “AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP”, do not be panic. It is never too late to find an attorney to help you rewrite your warranty deed.

Tenancy in Common is of the property popular in second marriages, because each spouse can pass share of the property to their own children from the first marriage. Tenancy in Common property is subject to probate court costs and delays.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.