Probate Tenants in Common

 

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Overview of Probate and Tenants in Common

Explore the complexities of probate for tenants in common with Perigon Legal Services. Our expert guide covers essential legal insights for managing co-owned property during probate.

Author: Stan Faulkner, Founder, Perigon Legal Services, LLC

Mr. Faulkner is an experienced counselor and litigator with 15 years of experience, having held bar licenses in four states (Mo, Il, Ct and Ga). Stan Faulkner uses this experience and focuses his skills in the pursuit of assisting individuals in probate (trust and estate) matters, guardianships and conservatorships, estate planning, business disputes and contract disputes. Published on April 02, 2024.

Probate and tenants in common are legal concepts related to property ownership and asset transfer in the context of real estate. Probate is the legal process of distributing a person’s property upon their death. It includes managing the estate of the decedent (dead person) and establishing in court that their will is legitimate.

A joint property ownership could establish either a tenancy in common or a joint tenancy. Each owner is free to sell or transfer their share without the other owners’ permission.

Knowing the legal implications of the probate process is crucial for individuals who hold property as tenants in common. Understanding the probate process may help guarantee that the intended allocation is executed according to the individual’s wishes and the governing state laws.

Understanding Tenants in Common

Joint ownership is known as tenancy in common when two or more people have an undivided interest in the same property. The key characteristics of a tenancy in common are the following:

  • Undivided Interest: There is an undivided interest in the entire property held by the property owners in common. In contrast to other types of joint ownership, no particular part of the property is allocated to each co-owner.
  • Ownership Shares: Equal or unequal ownership shares may be held by co-owners, and these shares may be independently inherited or transferred.
  • No Right of Survivorship: Tenant in common property does not automatically pass to the surviving co-owners in the event of their death. Instead, it becomes a part of their estate.
  • Transfer Flexibility: Each tenant in common is free to sell or transfer their portion without needing the approval of the other joint owners.

Legal Implications in Probate

For tenants residing in common property, probate may have consequences that affect ownership transfers and general property management.

    1. Distribution of a Deceased Co-Owner’s Shares: As tenancy in common lacks a right of survivorship, the interest of a deceased co-owner doesn’t automatically transfer to the remaining owners. Instead, the distribution of the deceased person’s share is determined through probate. In cases where there is no will, intestacy laws govern the distribution process.
    2. Probate-Associated Costs: Usually, the deceased person’s estate is used to cover these expenses. This could affect the property’s overall value and the interests of the surviving owners or tenants in common.
    3. Potential Disputes Among Beneficiaries and Heirs: Disputes between heirs and family members can arise from probate proceedings. This is particularly true if there are disagreements regarding the division of the deceased co-owner’s assets. Co-tenants in common may find themselves in court.
    4. Impact on the Management of the Property: The probate process could affect how the property is managed. The remaining co-owners have to wait for the probate to be resolved before deciding how to use, sell, or improve the property.
    5. Estate Planning Considerations: To reduce the effect of probate on their property interests, tenants in common may need to take proactive steps and create an estate plan.

The Probate Process for Tenants in Common

Generally, the initial steps in probate include the following:

  1. Identification or appointment of the estate’s executor.
  2. Filing for probate in the probate court.
  3. Notification of heirs, beneficiaries, and creditors.
  4. Inventory and appraisal of the remaining assets, such as tenancy in common properties and other assets.
  5. Payments of any outstanding debts and taxes.

Distribution of the Deceased’s Estate

With the court’s consent, the executor or administrator creates a plan for allocating the assets of the departed tenant. If a will exists, the will’s provisions govern the distribution. Georgia state intestacy laws control the real estate partition if there is no will.

The executor is authorized by the court to give the designated heirs or beneficiaries the deceased tenant’s portion of the property. This entails updating property titles through the preparation and submission of legal documents.

The executor will inform the court after all debts are paid, disagreements are settled, and property transfers are finished. This closes the probate process.

Legal Challenges and Solutions

Common Legal Challenges in Probate for Tenants in Common

Probate for tenants in common can have several legal challenges, often arising from the unique features of this type of property ownership. Some of these are:

  • No Rights of Survivorship: When one tenant passes away, it can lead to problems in identifying rightful heirs and managing the decedent’s share in the common property.
  • Disputes Between Co-owners: Conflicts between co-owners can occur during the probate process. There may be disagreements regarding the deceased tenant’s share, or some may want to sell the property while others want to keep it.
  • Unequal Shares in Ownership: Tenants in common can own different proportions of the property. If the heirs of the deceased tenant have different interests in the property, this could cause disagreements.

How Perigon Legal Services Can Help

Perigon Legal Services offers probate and estate administration services in Atlanta, Georgia. Hiring an experienced probate attorney can help save time and money. A reputable local attorney also helps save everyone from stress during this difficult time. The firm can help families and individuals with tenancy in common issues, especially during probate.

Estate Planning and Tenants in Common

Importance of Estate Planning

Estate planning becomes crucial when properties with joint tenancies are involved, allowing co-owners to dictate the handling of their interests, make arrangements, and mitigate the risk of disputes. Additionally, an estate plan has the potential to circumvent probate proceedings.

It allows the tenant to specify how they want their shares divided among their beneficiaries. Tenants in common can prevent problems resulting from unequal ownership shares through estate planning.

Strategies for Tenants in Common

Establishing a revocable living trust allows for the seamless transfer of ownership of real estate properties to beneficiaries and avoids probate. It can help tenants in common maintain privacy during the transfer of estate assets, avoid tax implications, and avoid probate proceedings when a co-owner dies.

Joint tenants may choose to change their ownership arrangement to joint tenancy with survivorship rights. This enables the share of a deceased co-owner to be automatically transferred to the surviving owners.

A life estate deed allows a tenant to decide who will inherit the property after their death while still able to use and occupy the subject property during their lifetime. Another option is to gift a portion of the ownership interest to an heir based on Georgia property laws.

Tenants in common may find it advantageous to hold property through a family limited partnership or limited liability company. These offer a more flexible transfer of ownership interests.

Contact an Estate Planning Attorney in Georgia.

 

The lawyers of Perigon Legal Services are experienced estate planning attorneys. We have helped hundreds of clients create wills and trusts and undergo guardianship procedures. We also assist with probate and estate administration, including assets in common tenancy. Our clients recommend our firm for our focus and extensive skill, as well as our personalized services.

For matters of probate that include tenancy in common properties, do not hesitate to contact Perigon Legal Services today.

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