Choosing how to title your home is an important decision that can affect your family’s future. Each form of ownership comes with trade-offs between control, convenience, and how the property passes upon death. Illinois homeowners should consider their personal situation: Are you single or married? Do you want the property to go directly to a co-owner at your death, or do you need the flexibility to leave your share to someone else? Do you have concerns about creditors or probate? By understanding these four common title options, you can make an informed decision that aligns with your estate planning goals. If you’re unsure which ownership type is best for your needs, it may be wise to consult with a real estate or estate planning professional for guidance.
Sole Ownership
Definition: Sole ownership means one person alone holds full title to the property. The owner has exclusive rights to control and use the home. This method is most straightforward – commonly used by a single individual buyer. (Even a married person can hold title in their name alone, with the spouse relinquishing any ownership claim.)
How it’s created: The deed will list only one grantee (owner). No special wording is needed beyond the single owner’s name. If the owner is married but wants sole title, the non-owner spouse typically must sign a spousal waiver (for example, releasing homestead rights) to confirm they have no interest in the property.
Estate planning considerations: In the context of estate planning, sole ownership has some clear pros and cons:
- Advantage: Full control – as the sole owner, you don’t need anyone else’s consent to sell or refinance, and you can decide entirely what happens to the home. This simplicity can make management of the property easier during your lifetime.
- Disadvantage: No automatic transfer on death – when a sole owner dies, the home becomes part of that person’s estate. It must go through probate (unless other planning like a trust is in place) to pass to heirs. There is no built-in survivorship feature, so without a will or trust, the property will be distributed according to Illinois intestacy law. In short, if you hold a home in your name alone, you should have an estate plan (such as a will or trust) to direct who inherits it.
Tenancy in Common
Definition: Tenancy in common (TIC) is a form of co-ownership where two or more people each own a share of the property. These shares can be equal or unequal. Every tenant in common has an undivided right to use and enjoy the entire property, even if one person’s percentage is larger or smaller. For example, one co-owner could own 75% and another 25%, but neither is restricted to only a part of the home – both can use all of it. All co-owners must generally agree to major decisions like selling the whole property, but each can independently transfer their own interest.
How it’s created: A tenancy in common is the default form of co-ownership in Illinois when a deed names multiple people without specifying another form. The deed may explicitly say “Alice and Bob, as tenants in common,” but even if it just lists “Alice and Bob” with no further wording, Illinois law will presume a tenancy in common (and will also presume equal shares unless percentages are stated). In practice, if buyers want this arrangement, the deed can simply name both (or all) owners or include a phrase like “as tenants in common” for clarity. It’s also possible for the deed to list each owner’s fractional share if it’s not equal.
Estate planning considerations: Here are key advantages and disadvantages of tenancy in common for estate planning:
- Advantage: Each owner can leave their share to someone of their choosing. There is no automatic survivorship to the other co-owners, so a tenant in common can use a will or trust to pass their interest to a spouse, child, or anyone else. This is useful if co-owners are, say, siblings or business partners who want their respective families to inherit their portions. It also allows flexibility in ownership shares (helpful if contributors invest different amounts).
- Disadvantage: Because there’s no automatic transfer to the other owners at death, the deceased owner’s share will likely go through probate as part of their estate (unless other planning is in place). The surviving co-owner(s) do not automatically get full ownership of the home – they will now co-own with whoever inherits the deceased’s portion. This can sometimes lead to complications: for instance, you might end up co-owning the property with your late co-owner’s heirs, which could be awkward or lead to disagreements. Additionally, decisions about the property (selling, refinancing, etc.) require cooperation among all tenants in common, and any owner’s financial troubles (like creditors or bankruptcy) could affect the property since that owner’s share is an individual asset.
Joint Tenancy (with Right of Survivorship)
Definition: Joint tenancy is another way for multiple people to own a property together. In a joint tenancy, all owners hold equal shares and have an equal, undivided right to enjoy the property. The defining feature is the right of survivorship: when one joint tenant dies, that owner’s share automatically passes to the surviving owner(s) outside of probate. Ultimately, the last surviving joint tenant becomes the sole owner of the property. Joint tenancy is common among spouses or family members who want the property to seamlessly go to the other co-owner when one dies.
How it’s created: Explicit wording on the deed is required to create a joint tenancy in Illinois. Simply naming two or more people isn’t enough (that would default to a tenancy in common). The deed must clearly state the intent to hold as joint tenants. For example, the deed might read “to John Doe and Jane Doe, as joint tenants with right of survivorship, and not as tenants in common.” All joint tenants generally must take title at the same time and in the same deed. Illinois law will not assume a joint tenancy without that survivorship language, so it’s important that the deed be drafted correctly if this is the desired form.
How it’s created: Explicit wording on the deed is required to create a joint tenancy in Illinois. Simply naming two or more people isn’t enough (that would default to a tenancy in common). The deed must clearly state the intent to hold as joint tenants. For example, the deed might read “to John Doe and Jane Doe, as joint tenants with right of survivorship, and not as tenants in common.” All joint tenants generally must take title at the same time and in the same deed. Illinois law will not assume a joint tenancy without that survivorship language, so it’s important that the deed be drafted correctly if this is the desired form.
Estate planning considerations: Joint tenancy offers distinct benefits and drawbacks for estate planning:
- Advantage: Avoids probate for the first to die. The right of survivorship means that when one owner passes away, their interest in the home immediately belongs to the surviving co-owner(s). The property doesn’t get tied up in the deceased’s estate or require court administration for that transfer. This can simplify matters greatly for, say, a surviving spouse who automatically continues as the owner. It provides a quick, automatic succession of ownership, which is often the primary reason people choose joint tenancy.
- Disadvantage: Less flexibility in leaving an inheritance. An individual joint tenant cannot will their share to someone else – regardless of what a will might say, the survivorship clause means their share goes to the other joint owner(s) by law at death. So if you wanted your portion of the house to go to your children or someone other than your co-owner, joint tenancy would not allow that. Additionally, once all but one joint tenant have died, the last survivor ends up with sole ownership (at which point the property would go through that person’s estate upon their death). In other words, joint tenancy delays when the property hits probate (until the last owner’s death), but doesn’t eliminate the need for an estate plan for the last owner. Another potential downside is that changing a joint tenancy arrangement later can require cooperation: one joint owner can technically sever the joint tenancy by transferring their interest (turning it into a tenancy in common), but doing so might be against the original intent and could create tension. Therefore, you should enter a joint tenancy only with someone you fully trust and when you’re sure you want the survivor(s) to inherit the property outright.
Tenancy by the Entirety
Definition: Tenancy by the entirety is a special form of joint ownership exclusively for married couples (in Illinois) who own a primary residence together. It is essentially a form of joint tenancy with right of survivorship plus additional protections. In a tenancy by the entirety, each spouse owns the property together as one legal entity (the marriage) rather than as two separate shares. The survivorship works the same way as joint tenancy: if one spouse dies, the surviving spouse automatically becomes the sole owner. However, tenancy by the entirety also provides certain creditor protections and restrictions that are unique to this form.
How it’s created: In Illinois, a married couple must explicitly declare this form of ownership in the deed. The deed language typically must note that the owners are husband and wife (or a married couple) and that they are taking title “as tenants by the entirety.” It often will clarify by saying they are not taking title as joint tenants or tenants in common, to avoid any confusion. Simply being married does not automatically create a tenancy by the entirety – the proper wording needs to be in the deed (unlike some other states where a deed to spouses might default to entirety ownership). Also, tenancy by the entirety is only available for a property that is the couple’s homestead (primary residence), not for investment or vacation properties.
Estate planning considerations: For married homeowners in Illinois, tenancy by the entirety offers notable advantages along with some limitations:
- Advantage: Survivorship and peace of mind. Like joint tenancy, it ensures that when one spouse dies, the other immediately owns the home outright without probate. This can be very reassuring in estate planning for spouses – the surviving spouse won’t have to worry about legal proceedings to keep their home.
- Advantage: Protection from individual debts. A major benefit is that the home is generally shielded from creditors of one spouse alone. A creditor who has a judgment against just one spouse cannot force the sale of a home held in tenancy by the entirety (only creditors to whom both spouses owe money – joint debts – can make a claim against an entirety property). This means if, for example, one spouse has significant debts or liability, the primary residence is safer from being taken to satisfy those debts as long as it’s held by the entirety. This form can thus protect a family home from certain financial risks, an important estate-preservation consideration.
- Disadvantage: Restricted to married couples’ residence. Tenancy by the entirety isn’t an option for unmarried co-owners, and even married couples can only use it for their principal home. If you divorce, the ownership automatically converts (usually to a tenancy in common), which could affect your estate plan going forward. Likewise, you can’t leave your half of the property to someone other than your spouse while the entirety exists – but that’s usually expected, since this form is designed for a 100% to surviving spouse outcome. Another limitation is that neither spouse can individually sell or mortgage the property; both must sign off on any transfer. While this isn’t exactly a disadvantage (it’s intended to protect both parties’ interests), it does mean you give up the ability to act alone with the property. Finally, couples who might otherwise want to put their home into a living trust for estate planning might need to terminate the tenancy by the entirety to do so, since you generally can’t hold a property in trust and as tenants by the entirety at the same time. This adds an extra step if your estate plan later calls for moving the home into a trust or other vehicle.
Making the Right Choice
Choosing how to title your home is an important decision that can affect your family’s future. Each form of ownership comes with trade-offs between control, convenience, and how the property passes upon death. Illinois homeowners should consider their personal situation: Are you single or married? Do you want the property to go directly to a co-owner at your death, or do you need the flexibility to leave your share to someone else? Do you have concerns about creditors or probate? By understanding these four common title options, you can make an informed decision that aligns with your estate planning goals. If you’re unsure which ownership type is best for your needs, it may be wise to consult with a real estate or estate planning professional for guidance.
Ultimately, the way you hold title to your Illinois home can offer peace of mind and ensure your property is handled according to your wishes – both during your life and for your loved ones after you’re gone.
Need to Find Out How Your Home is Titled?
Most counties in Illinois, including Cook County, maintain online access to property deeds, usually in the local recorder of deeds office.
For most people their home is their most valuable asset. If you’re unsure about the best way to pass it on to your loved ones, contact the Palley Law Office here.
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