Illinois law allows two or more parties to own real estate as joint tenants. Joint tenancies in Illinois are subject to the four unities rule, meaning that joint tenants must take title simultaneously, and by the same deed. The four unities rule also requires that joint tenants own equal property shares and enjoy equal rights of access and possession to the real estate.
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.
Read More: What Is a Joint Tenant on a Deed?
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.
Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.