Inheritance disputes can be a source of confusion, stress, and even legal battles, especially when multiple legal arrangements seem to contradict each other. In fact, one of the most common conflicts involves the right of survivorship vs. will.
Understanding how these two legal arrangements work is crucial for those involved in estate planning or navigating the probate process.
We will explain the differences between a right of survivorship and a will, share how conflicts can arise, and discuss which one typically prevails in the event of a dispute.
What is Right of Survivorship?
Right of survivorship is a legal arrangement where two or more people own property jointly. Upon the death of one owner, their ownership interest automatically transfers to the surviving owner(s). This is a common arrangement for assets like bank accounts, real estate, and vehicles.
Georgia Laws on Right of Survivorship
Georgia law recognizes the right of survivorship as a valid way to transfer ownership of property. When property is held in joint tenancy with right of survivorship, the surviving owner(s) automatically inherit the deceased owner’s share. This can simplify the probate process and avoid potential disputes among heirs.
Wills in Georgia are legal documents that outline how a person’s assets should be distributed after their death. To be valid, a Georgia will must:
- Be In Writing: It can be handwritten or typed.
- Be Signed By the Testator: The person making the will must sign it in the presence of two witnesses.
- Be Witnessed by Two Competent Witnesses: The witnesses must sign the will in the presence of the testator.
However, even with a valid will, the right of survivorship can still take precedence. If property is held in joint tenancy with right of survivorship, it will pass to the surviving owner(s) regardless of what the will says.
Related Blog: What Happens to Unsigned Wills in Georgia?
Why Right of Survivorship (Usually) Takes Precedence
The reason why rights of survivorship often take precedence over a will is that it is a specific legal arrangement designed to bypass the probate process. Probate can be a lengthy and costly legal procedure, and the right of survivorship allows for a more efficient transfer of assets.
However, it’s important to note that:
- Not all joint ownership includes the right of survivorship. If the property is held as tenants in common, the deceased owner’s share will pass through their estate according to their will.
- Once all joint owners with right of survivorship have passed away, the remaining assets can be distributed according to the last surviving owner’s will.
Related Blog: Surviving Spouse Rights in Georgia: A Quick Guide
When the Will Takes Precedence
However, there are a few exceptions to this rule:
- Tenancy in Common: If property is held as tenants in common, the deceased owner’s share will pass through their estate according to their will.
- Simultaneous Death: In the rare event that both joint tenants with right of survivorship die simultaneously, the property will pass through the estate of the first person to die, which could be determined by a will or intestacy laws.
- Fraud or Undue Influence: If it can be proven that the right of survivorship was obtained through fraud or undue influence, a court may override it and distribute the property according to the deceased’s will or intestacy laws.
“Right of survivorship will usually override any stipulations in a will, but things get more complicated if there’s evidence that the right of survivorship clause was fraudulent crafted, or if both tenants die simultaneously. In those instances, inheritance disputes can arise between multiple beneficiaries making claims to those assets. It’s important to consult a fiduciary lawyer for guidance on how to deal with this.”
-Robert C. Port, Attorney, Gaslowitz Frankel
It’s important to note that these are complex legal issues, and specific circumstances can vary. To ensure that your estate plan aligns with your wishes, it’s crucial to consult with an experienced estate planning attorney.
Related Blog: What is Probate Fraud? And What Can You Do About It?
Disputes Over Right of Survivorship
Contact Gaslowitz Frankel if you’re dealing with an inheritance dispute in Georgia, whether it involves right of survivorship or another type of legal arrangement that impacts probate, our experienced team can review your situation and help you understand the possible outcomes and legal strategies available.
