Article Summary
Joint tenancy and tenancy in common are the two main ways to co-own property in Illinois. The difference comes down to one critical feature: the right of survivorship.
In a joint tenancy, when one co-owner dies, their share automatically passes to the surviving owners — without probate. In a tenancy in common, each owner's share passes through their will or, if they die without one, under Illinois intestacy law.
Illinois defaults to tenancy in common whenever a deed creates co-ownership without expressly specifying joint tenancy. This guide explains what each form of ownership means, how to create them correctly under Illinois law, and which one fits your situation — whether you are a married couple, unmarried partners, or co-investors.
At a Glance: Joint Tenancy vs. Tenancy in Common
Joint Tenancy
Automatic survivorship — no probate on death
Tenancy in Common
Each owner's share passes by will or intestacy
Key Illinois Rule
Illinois defaults to tenancy in common — joint tenancy requires explicit deed language
What Is Joint Tenancy in Illinois?
Joint tenancy is a form of co-ownership in which two or more people hold equal, undivided shares in a property with the right of survivorship. When a joint tenant dies, their share does not pass through their estate — it automatically vests in the surviving joint tenants, completely outside of probate.
Joint tenancy in Illinois is governed by the Joint Tenancy Act, 765 ILCS 1005. To be valid, a joint tenancy must satisfy four traditional requirements known as the four unities: unity of time (all joint tenants acquire their interests at the same time), unity of title (all acquire through the same instrument), unity of interest (all hold equal shares), and unity of possession (all have the right to possess the entire property). If any unity is missing or later destroyed, the joint tenancy fails or is severed.
The Right of Survivorship
The defining feature of joint tenancy is the right of survivorship. When one joint tenant dies, their share does not go to their heirs — it passes instantly and automatically to the remaining joint tenant or tenants. No probate filing is required. No court order is needed. The surviving co-owner simply records an affidavit of survivorship in the county recorder's office, attaches a certified copy of the death certificate, and title is clear.
This makes joint tenancy a popular tool for married couples and close partners who want property to transfer seamlessly at death. For a home held in joint tenancy between spouses, the surviving spouse gets clear title quickly — without the cost or delay of probate, which in Cook County typically takes 9 to 18 months for a standard estate.
The survivorship risk: order of death matters
Joint tenancy only works as a probate-avoidance tool if the right person survives. If both spouses die simultaneously — in a car accident, for example — or if the surviving spouse dies before transferring the property, it may end up in probate anyway. A revocable living trust eliminates this risk by controlling distribution regardless of the order of death. For families with more complex circumstances, an attorney can help evaluate whether joint tenancy alone is adequate.
How Joint Tenancy Is Created in Illinois
In Illinois, joint tenancy must be expressly created — it is never assumed. The deed must use specific language identifying the ownership as joint tenancy with right of survivorship. Courts have required clear survivorship language; terms like “jointly” alone have not always been sufficient. The safest language for an Illinois joint tenancy deed includes:
“[Name] and [Name], as joint tenants with right of survivorship, and not as tenants in common.”
The phrase “not as tenants in common” is technically not required under Illinois law, but including it eliminates ambiguity and reduces the risk of a later dispute about the nature of the ownership.
It is important to note that Illinois does not recognize tenancy by the entirety for real estate. Tenancy by the entirety is a special form of joint ownership available only to married couples in some states — it provides additional creditor protection. Illinois abolished tenancy by the entirety for real property, so married couples who want joint ownership of Illinois real estate must use joint tenancy with right of survivorship.
What Is Tenancy in Common in Illinois?
Tenancy in common is the default form of co-ownership in Illinois. When a deed transfers property to two or more people without specifying joint tenancy, Illinois law presumes tenancy in common under 765 ILCS 1005/1. Unlike joint tenancy, tenancy in common does not require the four unities, does not carry a right of survivorship, and allows owners to hold unequal percentage interests.
Each tenant in common holds a separate, undivided fractional interest in the property. This means every co-owner has the right to use and enjoy the entire property — there is no physical division of the land itself — but each person's ownership share is a legally distinct interest. A tenant in common can sell, mortgage, gift, or transfer their individual share without the consent of the other co-owners.
Unequal Ownership Shares
One of the most practical differences from joint tenancy is that tenancy in common allows for unequal ownership percentages. A deed might give one person a 70% interest and another a 30% interest. This makes tenancy in common the natural structure for real estate investment partnerships, family members who contributed different amounts toward a purchase price, and business co-owners who want their shares to reflect their actual investment.
When the deed is silent on percentages, courts generally presume equal shares among tenants in common. If co-owners intend unequal shares, the deed should expressly state each party's percentage interest to avoid future disputes about contribution and distribution.
No Right of Survivorship — What Happens at Death
When a tenant in common dies, their share does not automatically go to the surviving co-owners. Instead, their fractional interest becomes part of their estate and passes in one of two ways:
Through their will
If the deceased co-owner had a valid Illinois will, their share of the property passes to whoever the will designates — which may or may not be the surviving co-owner. A tenant in common who owns a 50% interest in a property could leave that 50% to their children, a charity, or anyone else, regardless of who the other co-owner is.
Through Illinois intestacy law
If the deceased co-owner had no will, their share passes according to the Illinois intestacy statute (755 ILCS 5/2-1). For most people, this means a surviving spouse receives a portion and descendants receive the rest — creating a situation where a co-owner's children or relatives suddenly become co-owners alongside the surviving original co-owner.
This can create messy co-ownership situations — a surviving business partner suddenly sharing the building with a deceased partner's adult children, or an unmarried couple where one partner's share passes to estranged family members rather than the surviving partner. Proactive estate planning prevents these outcomes.
Joint Tenancy vs. Tenancy in Common: Side-by-Side Comparison
The differences between these two forms of co-ownership touch every aspect of property ownership — from how title is created to what happens when an owner dies, sells their share, or faces a creditor judgment.
Joint Tenancy vs. Tenancy in Common in Illinois
| Factor | Joint Tenancy | Tenancy in Common |
|---|---|---|
| Illinois default? | No — must be expressly created | Yes — presumed if deed is silent |
| Right of survivorship? | Yes — share passes to surviving co-owners automatically | No — share passes through estate at death |
| Probate on death? | No — affidavit of survivorship is sufficient | Yes, unless the share is held in a trust |
| Equal shares required? | Yes — all owners hold equal shares | No — unequal percentages are allowed |
| Owner can transfer their share? | Yes, but it severs the joint tenancy | Yes, without affecting co-owners' interests |
| Creditor can reach a share? | Yes — and the levy may sever the joint tenancy | Yes — creditor can force a partition sale |
| Four unities required? | Yes — time, title, interest, and possession | No — unities are not required |
| Best suited for? | Married couples wanting seamless survivorship | Co-investors, business partners, unequal contributors |
| Estate plan coordination? | Can conflict with trust plans — must be intentional | Flows through estate — more compatible with trust plans |
Which Is Right for Your Situation?
The best form of co-ownership depends on your relationship with the other owner, your estate planning goals, and how you want the property handled if you die before the other co-owner. Here is how to think through each common scenario.
Married couples
For many married couples, joint tenancy is a practical choice for the family home. When one spouse dies, the survivor gets clear title quickly — no probate, no court, no waiting. This works well for straightforward situations where the couple's estate plan is simple and the home is the primary asset. However, if the couple has a revocable living trust — which is common for larger estates or families with children from prior relationships — the home should generally be titled in the trust rather than held in joint tenancy. Joint tenancy bypasses the trust's distribution terms and can create complications if the spouses die in the wrong order.
Unmarried partners and cohabitating couples
Unmarried couples face significant risk under tenancy in common. If one partner dies without a will, their share passes under Illinois intestacy law — which gives nothing to a non-spouse partner. The surviving partner could suddenly co-own the home with the deceased partner's parents, siblings, or children. Joint tenancy provides automatic survivorship protection in this scenario. However, for unmarried partners with more complex situations — children from prior relationships, significant age differences, or unequal financial contributions — a revocable living trust or a comprehensive will may better reflect their intentions than joint tenancy alone.
Business partners and real estate co-investors
Co-investors who contributed different amounts typically need tenancy in common to hold unequal percentage shares. More importantly, most business co-owners do not want a co-owner's share to pass automatically to them — they want their own share to go to their family or designated successors. A buy-sell agreement and a co-ownership agreement work alongside the deed to govern what happens at death or exit. For larger real estate portfolios, holding property through an LLC eliminates the joint tenancy vs. tenancy in common question entirely and provides superior liability protection.
Siblings and family members who inherit property together
When two or more siblings inherit property together — without clear deed language — the default is tenancy in common. Each sibling owns their fractional share independently, can sell it, mortgage it, or leave it to their own heirs. If the siblings want to simplify things, they can agree to convert to joint tenancy by executing a new deed, or sell the property and divide the proceeds. If they cannot agree, any co-owner can petition an Illinois court for partition — a legal action that forces either a physical division of the property or a court-ordered sale with proceeds split according to ownership percentages.
Not Sure How to Hold Title to Your Illinois Property?
Illinois Estate Law helps Chicago-area families structure property ownership to match their estate plan — and fix co-ownership arrangements that create unintended consequences. Flat-fee pricing with a free initial consultation.
How Property Title Affects Your Estate Plan
How you hold title to a property is not just a real estate decision — it is a critical estate planning decision. The title determines what happens to the property when you die, and it can override your will, your trust, and every other estate planning document you have signed.
Joint Tenancy and Your Estate Plan
- Bypasses your will entirely — the deed controls, not your expressed wishes
- Can override carefully written trust provisions for the same property
- If you have a living trust, property in joint tenancy sits outside the trust
- A co-owner can unilaterally sever the joint tenancy without your consent
- Works well only for simple, will-free estate plans without a trust
Tenancy in Common and Your Estate Plan
- Each owner's share flows through their will or a revocable living trust
- Compatible with trust plans — the share can be held in trust
- Provides flexibility to structure distribution separately from co-ownership
- But requires probate for the deceased owner's share unless held in a trust
- A co-owner's creditors can reach their share during life and at death
The most common mistake Illinois families make is holding their home in joint tenancy while also having a revocable living trust. The property in joint tenancy sits outside the trust — it will pass to the surviving joint tenant regardless of what the trust says. If the trust is designed to provide for children from a prior relationship, protect a special needs beneficiary, or hold assets until a young heir reaches a certain age, property held in joint tenancy completely bypasses all of that planning.
Families with a revocable living trust should generally have their home titled in the name of the trust — not held in joint tenancy. A deed transferring the property into the trust eliminates the joint tenancy vs. tenancy in common question entirely and ensures the property is distributed exactly as the trust directs. See our guide on how to fund a revocable living trust in Illinois for step-by-step instructions.
Beneficiary designations also override your will — and your deed
Just as property title controls what happens to real estate at death, beneficiary designations on life insurance, retirement accounts, and bank accounts control what happens to those assets — completely separately from your will and your deed. A complete Illinois estate plan coordinates all of these transfer mechanisms together, not just one of them.
Changing Between Joint Tenancy and Tenancy in Common
Property title is not permanent. Illinois law allows co-owners to change from one form of ownership to the other — though the process and legal consequences differ depending on which direction you are moving.
Converting tenancy in common to joint tenancy
Both co-owners must agree and execute a new deed that expressly creates joint tenancy. All four unities must be satisfied: the owners must receive their interests at the same time, through the same instrument, in equal shares, with equal rights of possession. A deed from both tenants in common to themselves as joint tenants with right of survivorship accomplishes this in Illinois. Recording the new deed in the county recorder’s office completes the conversion.
Severing joint tenancy to create tenancy in common
Under Illinois law, any joint tenant can unilaterally sever the joint tenancy — even without the other owner’s knowledge or consent — by conveying their individual interest to a third party or, under established Illinois precedent, to themselves. Once any of the four unities is destroyed, the joint tenancy converts to tenancy in common. A joint tenant who conveys to themselves should record a deed of conveyance to document the severance. This unilateral severance right is one of the key fragilities of joint tenancy as a long-term estate planning tool.
If co-owners cannot agree on how to hold title — or on anything else about managing shared property — any co-owner (whether joint tenant or tenant in common) can bring a partition action in the Illinois Circuit Court. Partition forces either a physical division of the property (uncommon for residential homes) or a court-ordered sale and division of proceeds. Partition litigation is expensive and adversarial; a written co-ownership agreement drafted before problems arise is far more effective.
Before changing property title in either direction, consult with an Illinois estate planning attorney. Title changes have real estate transfer tax, gift tax, and estate planning implications that should be evaluated before executing a deed.
Frequently Asked Questions
Next Steps
If you are buying a property with another person, how you hold title should be a deliberate decision made with your estate planning goals in mind — not an afterthought at closing. If you already own property and are unsure how it is titled, pull the deed from your county recorder's records and review the language carefully.
For Illinois homeowners who have or are considering a revocable living trust, the right move is almost always to deed the property into the trust — which sidesteps the joint tenancy vs. tenancy in common question entirely and ensures the property is distributed exactly as the trust directs. Our revocable trust services include deed preparation to transfer real estate into your trust as part of a complete estate plan.
Illinois Estate Law offers flat-fee estate planning packages that include a revocable living trust, pour-over will, powers of attorney, and deed coordination. Visit our services and pricing page to see everything that is included — with transparent, flat-fee pricing and no hourly billing surprises.
Speak With an Illinois Estate Planning Attorney
Illinois Estate Law helps Chicago-area families structure property ownership correctly — and build estate plans that ensure every asset reaches the right person at the right time. Schedule a free consultation to get started.
Call (312) 373-0731 to speak directly with our team.
Related Illinois Property & Estate Planning Guides
Mary Liberty — Chicago Estate Planning Attorney
Mary Liberty is a Chicago-based estate planning and probate attorney dedicated to making legal planning accessible, affordable, and stress-free. Through her modern virtual law practice, she helps families and individuals across Illinois create clear, effective plans that protect their assets and their loved ones.
Mary focuses on estate planning, uncontested probate, and her signature partial probate service. Known for her precision, empathy, and plain-language guidance, she operates on a 100% flat-fee model so clients always know exactly what to expect.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. Illinois property and estate planning law is complex and fact-specific — the right form of co-ownership for your situation depends on your individual goals, family circumstances, and existing estate plan. Consult a licensed Illinois attorney before making any changes to property title.
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