Whether you are buying a house with your spouse, a friend, a business partner, or a family member, co-ownership situations require the property owners to decide how they are going to take title to their land, and doing so has important consequences. When more than one person owns title to a piece of real property, Illinois law allows for title to be held between the owners in three ways: 1) as tenants by the entirety; 2) as joint tenants with the right of survivorship; and 3) as tenants in common. Each manner of holding title results in different circumstances of transfer upon the death of an owner, and will determine the rights and abilities of outside creditors to reach the property to satisfy debt.
TENANCY BY THE ENTIRETY
Tenancy by the entirety is a form of holding title reserved only for married couples that provides extra protection to marital property. Almost all married couples should take title by the entireties because it carries important protections for the primary, marital residence, including protecting the property from entering the probate system upon the death of a spouse, as well as preventing a creditor of one spouse from foreclosing on the property to collect on the debt of that spouse. For example, if a philandering spouse takes out a credit card and racks up a ton of debt, the other spouse will not lose the marital home to the credit card company if it comes collecting. Also, both spouses will be required to sign off on any transfer of the property. So, one spouse cannot sell the property without the other one knowing.
JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP
Joint tenancy with right of survivorship is a form of co-ownership in which all tenants have an equal right in the property. If two people are living in a condominium as joint tenants with the right of survivorship, each owner owns 1/2 of the property, with a right to use the whole property. The “right of survivorship” language affords survivorship rights in the event of the death of one owner. Should one of those 2 owners die, his or her interest transfers to the remaining joint tenant, as opposed that owner’s children or other heirs. In other words, the interest of the deceased owner automatically gets transferred to the surviving owner and the deceased owner’s heirs would not have any interest in the property.
TENANTS IN COMMON
Tenancy in Common means the owners each own a specific portion of the property, for example two owners might own 50% each or three owners might own 50/25/25% each. When one of the owners passes away or otherwise choses to transfer their ownership, their heir or successor would step into the same percentage that they owned. A tenancy in common can also be created where a joint tenant sells his or her interest, which would sever the interest in the property and create a tenants in common relationship.
NOW THAT YOU KNOW, WHAT SHOULD YOU DO?
If you’re in a co-ownership situation and are unsure of how you took title, refer to the deed. If you’re looking to learn more as you embark on property ownership, or are interested in changing the way you and your co-owner took title to the property, call us today!