Illinois Tenancy 101

My husband and I are looking to buy a home in Central Illinois. When we met, he moved into the house I owned and we lived there for many years. What happens if one of us dies - will the other one automatically get the house? What is the best way to protect ourselves for the future?

Shopping for a new home can be a wild adventure on its own - there is so much to take into consideration as you look. You also want to consider the future protection of one of the largest assets you will own - especially if purchasing it involves a spouse

In Illinois, titles can be taken as Joint Tenants with the Right of Survivorship, Tenants in Common, or Tenants by the Entirety. We always recommend consulting an attorney about your specific situation. What we can offer you is a basic understanding of your choices. 

Joint Tenants with the Right of Survivorship

This is the most common way to take a tenancy. Each person owns a share. If one person dies, the title transfers to the survivor without the need for probate. 

Tenants in Common

This is where each person owns a share of the property. It can be a full 50%-50% split, or it can be something like 25%-75%. If one person dies, the decedent’s interest passes to their heirs. The estate will either have to be probated to name an Executor or all heirs will have to deed it out. 

Tenants by the Entirety

This is like Joint Tenancy. It provides more protection to a married couple. It has all the benefits of joint tenancy. In the event of death, the surviving spouse takes the title. Tenants by the Entirety also includes the extra benefit of protecting the property from creditors. In a situation of debt - the property may not be partitioned, sold, or encumbered without the permission of both spouses. Neither spouse may convey their half interest without the consent of the other. In Illinois, if the couple divorces, the property will be considered tenants in common.

 
Due to the extra protection, Tenants by the Entirety has specific requirements. To take the title as Tenants by Entirety, you must be a married couple. The property on the title must be your primary personal residence. Both parties must agree if the tenancy is changed at a later date. Finally, the deed is worded in a way to state the owners are married, not tenants in common or as joint tenants but as tenants by the entirety.

Families and partnerships change over time. Consulting an attorney about tenancy will keep you protected against all eventualities. That may seem like an extra step during the home buying process, but protecting your future is most important.