The last time I wrote about deeds I discussed the different forms of deeds, such as Quit-Claim Deeds, Security Deeds and Warranty Deeds. Look for “Doing the Deed” elsewhere in BP.
This time I’m going to discuss several issues relating to deeds. As noted, this is written with a Georgia focus; I would venture a guess that this info is similar info for the rest of the Country but again, your mileage may vary. This was originally written mainly for consumers, to review their own deeds (to their homes) but there is a section that is important if two individuals (or families, etc.) purchase a property together--one slip of legalese could create a burden to the families after the passing of one of the owners. Likewise, the info relating to Divorce may apply to investors as well.
If you own a property by yourself, it’s solely in your name. That’s a simple concept; not much to understand about that. If you own a piece of property with someone else, the specific language in that deed is very important. Let’s say a property was conveyed to Sonny and Cher (note to anyone under 40: Google them). Yep, no question about it--Sonny and Cher own their property; that’s simple enough. BUT, if you look to comm "unintended consequences", if it’s just spelled out that Sonny and Cher are the owners (with no other special language) there could be issues lurking down the road. If you’re curious, that type of deed would be called “Tenants in Common”. Put that thought on hold and let’s try another scenario.
I won’t bore you with statutes and history but years ago the Georgia legislature created another deed concept called “Joint Tenants with Right of Survivorship”. That meant that if Sonny and Cher took title as Joint Tenants, they more or less owned the entire property together—however, if either one of them passed away, the title to the entire tract would pass to the other immediately as an operation of law.
The distinction for these two deed formats is specific to the language. As noted, the Joint Tenants deed passes title immediately upon the death of one of the Joint Tenants. Contrast that with Tenants in Common—picture a big line drawn through the property. With Tenants in Common each “Tenant” owns their “half”. So if Sonny died, Cher still owns her half but now Sonny’s estate owns the other half. This may or may not be a big deal—if Sonny has a will giving everything to Cher, then she gets the entire property just like the Joint Tenants deed. The difference? With the Joint Tenants deed, Cher would have received the property ‘automatically’ upon Sonny’s death. With the Tenants in Common, Cher has to Probate the Will through the Court system or Administer the estate if there was no will. Either process involving the court will cost money and time—something that Cher may not have depending on her situation. If she received the property through the Joint Tenancy deed, she can do what she needs immediately, no waiting!
Take a look at the deed to your own house. TYPICALLY attorneys will default to creating a Joint Tenants With Rights of Survivorship for closing OR they will give you the option. If that’s your intent, great, the JTWROS deed is a useful tool. Take a look at your parents’ deed—was it an older deed that just has both of their names (Tenants in Common) OR was it just in ONE of their names? Again, through the court system, a surviving spouse will ‘eventually’ be able to receive the property BUT why put up barriers that involve time and expense?
What if you own a vacation house with another family? If by mistake the lawyers used a JTWROS deed, then if Family Dad 1 dies then Family Dad 2 would own the complete property. Most likely that won’t be an issue (e.g. will Family Dad 2 effectively kick out the heirs of Family Dad 1? He could!) but we attorneys hear all sorts of horror stories (and even within families—it’s weird how money can induce craziness into families). As a side note, what if they did fix the situation--there still could be tax issues for Dad 2 to transfer a portion back to the family of Dad 1...
What about a ‘blended’ family? Take the Brady Bunch. If Mr. Brady wanted only HIS sons to receive his interest in his property, then Tenants in Common may be the way to go for him. That way Mrs. Brady would keept her share at Mr. Brady's death and the sons would get their share through the estate of Mr. Brady. However, there could be a LOT of issues that could come up so you really need to think things through and PLAN with both the deed and a well-crafted Will (or a well-written Operating Agreement that covers any kind of 'what if' you can think of!).
One final issue to discuss is Divorce. So Sonny and Cher hit a rough patch and decide to go their own way. In the divorce decree (the ‘road map’ to the divorce, more or less a contract telling what must happen) it says Sonny will deed the house to Cher, so he does. Now Cher owns the house, right? Here’s the classic “What if” situation—what if Sonny and Cher had a loan? Well, Cher may own the house, but BOTH Sonny and Cher are tied together through the loan. Actually, look at it this way—Sonny and Cher’s CREDIT is tied together through the loan. If Sonny wants to buy his own place, he may not be able to do so until Cher pays off that loan or refinances that loan ‘solo’ (e.g. Sonny is no longer on a loan tied to the old house). Again, a simple concept, but I get calls or emails all the time relating to this. More “what if’s” for you—now let’s say Cher stops paying the mortgage; obviously her credit is trashed and she may lose the house. BUT guess whose credit is also trashed? Sonny’s, because he is still on the loan! He may never know this until he is turned down for a Home Depot credit card or something much more important like his own loan or even a job! Investor deal with a 'break-up' of some nature? Ditto!
On a similar note, what if Cher got the house and the divorce decree actually states clearly that Cher must refinance or sell the house to get Sonny’s interest released? That is a great idea and ANY divorce attorney should make sure that is in the decree (with time limits!). BUT (there’s always a but, right??)—what if the house is ‘upside down’ and cannot be sold or refinanced? These are serious concerns with no easy answer. I just want to point out some of these issues so that you can properly plan for the future should this event happen to you.
The moral of the story? You should get thee to the file cabinet, safety deposit box or simply contact your closing attorney and find out how you hold title to your property (and again, ask your parents, grandparents or kids, etc.). At a minimum it’s best to have both spouses on title and ‘in general’ it’s best to have a Joint Tenant With Rights of Survivorship Deed. As noted, everyone’s situation is different (I didn’t even touch on tax liabilities, which I’m not really qualified to do!) so start by looking at your deed and then consult your estate planning attorney, CPA and real estate attorney to do what’s right for you!
As always, if you find some generic deed online, you’ll probably get what you pay for (meanwhile, your home is merely your most important asset but what’s $50, eh?). Likewise, I saw a will creator program at my local warehouse club for $45. All I can say is this—you may be dead, but do you want to burden your family with a ‘what if’ that comes to life due to some wacky software glitch? Let me know how I can help, either a quick review of your deed and/or revision as well as helping to craft a simple will for you that’s in line with your current situation. I’d love to help serve you! Thanks as always for reading, take care! Bo
