Creating Joint Tenancies
Illinois law requires deeds to use specific language to create joint tenancies. A deed must clearly express the owners' intention to hold title as joint tenants. For example, "Robert Smith and Sally Henderson, as joint tenants, not as tenants in common." A deed that does not clearly state the creation of a joint tenancy creates a tenancy in common, which is a different form of ownership.
When joint tenants die their property interests pass automatically, or by operation-of-law, to their surviving joint tenants. Joint tenancies are often used in estate planning because they bypass probate court. Surviving joint tenants take a deceased joint tenant's share even if her will attempts to leave it to someone else. A person can, however, lose her survivorship right if she causes the death of her joint tenant.
Severing Joint Tenancies
Joint tenants may mutually agree to severe their joint tenancies by creating a new deed, or one joint tenant can dissolve an Illinois joint tenancy by conveying his interest to a third party. Severing a joint tenancy transforms the form of ownership to a tenancy in common, and destroys rights of survivorship. A joint tenancy is also severed when a joint tenant loses his ownership interest to a creditor in a lawsuit.
Upon the death of a joint tenant, a surviving joint tenant must record a death certificate, and a notarized affidavit of joint tenancy, at the register of deeds in the county where the property is located. The death certificate must be a certified copy, and any person who was familiar with the joint tenant may complete the affidavit. Illinois title companies require the recordings before surviving joint tenants can sell their property.
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