US Legal Forms
Legal Resources
Questions & Answers
Real Property
Can creditors make claims against a house in joint tenancy after death?

Can creditors make claims against a house in joint tenancy after death?

Full question:

My ex-wife is terminally ill. I am the executor of her will. The house she lives in is in her name and her fathers and mothers names and the deed is listed as joint tenancy with right of survivorship. I realize her parents assume ownership at her death and this by passes probate, but in Georgia, can her creditors make any claims against the house after her death?

Category: Real Property
Subcategory: Joint Tenants
Date: 04/07/2025
State: Georgia

Answer:

Joint tenancy allows two or more individuals to own property together, with the surviving joint tenant automatically inheriting the property upon the death of another joint tenant. This is known as the right of survivorship. In Georgia, property held in joint tenancy typically passes outside of probate.

Generally, creditors cannot make claims against property owned in joint tenancy for the debts of a deceased joint tenant. However, federal tax liens may be an exception. According to the Internal Revenue Manual, if a federal tax lien attaches to an individual’s property and that individual dies before any other joint tenants, the lien ceases to attach to the property. But if that individual is the last surviving joint tenant, the tax lien can attach to the entire property.

In Georgia, the relevant statute regarding joint tenancy is found in O.C.G.A. § 44-6-190, which outlines how joint interests with survivorship can be created and the conditions under which they can be severed.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

Does right of survivorship override will?

Yes, the right of survivorship typically overrides a will when it comes to jointly owned property. If one joint tenant dies, the surviving joint tenant automatically inherits the property, regardless of what the deceased's will states. This means the property does not pass through probate and is not subject to the terms of the will. However, it's essential to ensure that the joint tenancy is properly established to uphold this right. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

What is the disadvantage of the right of survivorship?

One disadvantage of the right of survivorship is that it can limit the deceased's ability to dictate how their property is distributed after death. Since the property automatically passes to the surviving joint tenant, it may not align with the deceased's wishes as outlined in their will. Additionally, if the surviving tenant has debts, creditors may have claims against the property. It is also important to consider tax implications and potential conflicts among heirs. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

What is a quitclaim deed with the right of survivorship?

A quitclaim deed with the right of survivorship is a legal document that transfers ownership of property between parties while ensuring that the surviving owner automatically inherits the property upon the death of one owner. This type of deed is often used by couples or family members to establish joint ownership. It is important to note that a quitclaim deed does not guarantee that the property is free of liens or claims; it simply transfers whatever interest the grantor has in the property. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Who is the executor of the estate of the surviving spouse?

The executor of the estate of a surviving spouse is typically the individual named in the deceased spouse's will. If there is no will, the court may appoint an administrator, often a close family member or the surviving spouse themselves, to manage the estate. The executor is responsible for settling debts, distributing assets, and ensuring that the estate is handled according to the law. In cases of joint tenancy, the property may bypass probate, but the executor still manages any remaining estate matters. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

What happens when two people are on a deed and one dies?

When two people are on a deed as joint tenants with the right of survivorship, the surviving tenant automatically inherits the deceased tenant's share of the property upon their death. This transfer occurs outside of probate, meaning the property does not go through the court process for distribution. However, if the property is owned as tenants in common, the deceased's share would pass according to their will or state intestacy laws, which may involve probate. It's crucial to clarify the type of ownership to understand the implications. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*