Illinois Joint Tenancy & Tenancy by the Entirety

A married couple's vacation home doesn't get the same automatic protection their actual house does — Illinois reserves tenancy by the entirety for the homestead specifically.

Express declaration, dating back to 1917

Under the Joint Tenancy Act (765 ILCS 1005/1), the premises in a grant, legacy, or conveyance must be expressly declared to pass "not in tenancy in common but in joint tenancy" for that form to apply. This core language traces back to a 1917 amendment. Without that express declaration, a conveyance to two or more people is deemed to create a tenancy in common instead, and a co-owner's share goes through probate.

Tenancy by the entirety: homestead only

Illinois takes a narrower approach to tenancy by the entirety than many states. This form is available specifically for a devise or conveyance of the couple's homestead property, expressly declared to pass to individuals married to each other as tenants by the entirety. It doesn't automatically extend to a second home, a rental property, or any other real estate the couple happens to own together — only their actual homestead qualifies for this specific statutory treatment.

Self-conveyance works, no strawman needed

Illinois law directly addresses a problem that once required a roundabout workaround: creating a joint tenancy by conveying property to yourself and someone else. The statute confirms that when an instrument declares an estate is to pass with the right of survivorship, that estate is created with all the effects of a common law joint tenancy — even when the grantor is also named as one of the grantees in the same instrument. This eliminates the old need to route the conveyance through an intermediary third party just to satisfy the traditional unities.

A mortgage no longer defeats survivorship

Since a 1998 amendment to the Joint Tenancy Act, a real estate mortgage on a joint tenant's own interest doesn't defeat the right of survivorship when that joint tenant dies. Instead, the surviving joint tenant or tenants take the interest the deceased tenant could have transferred before death — but subject to that existing mortgage. The survivorship still happens; the mortgage simply travels along with the interest rather than blocking the transfer outright.

Personal property survivorship is generally abolished

Real estate and personal property are treated differently under Illinois law. For personal property held jointly — outside specific statutory exceptions — the right of survivorship is generally abolished unless a will or other written instrument expresses an intention to create it. Without that written expression, jointly held personal property is deemed a tenancy in common instead. Certain categories, including bank deposits, get their own specific statutory carve-out preserving survivorship; see our guide to Illinois beneficiary accounts for that exception.

A newer tool for real estate

None of these co-ownership forms are the only way to keep Illinois real estate out of probate. See our guide to the Illinois transfer on death instrument for a tool that works without a co-owner at all, and its own recent expansion.

Illinois joint tenancy — frequently asked questions

What does the Illinois Joint Tenancy Act require to create a joint tenancy?

The premises must be expressly declared to pass not in tenancy in common but in joint tenancy. Without that express declaration, a conveyance to two or more people defaults to a tenancy in common, with no survivorship.

Is tenancy by the entirety available for any real estate a married Illinois couple owns?

No. Illinois limits this specific form to a devise or conveyance of the couple's homestead property, expressly declared to pass to individuals married to each other as tenants by the entirety — it does not extend automatically to other real estate the couple owns.

Can an Illinois property owner create a joint tenancy by conveying to themselves and another person?

Yes. Illinois law specifically confirms that a grant declaring survivorship creates an estate with the full effects of a common law joint tenancy, even when the grantor is also named as one of the grantees, addressing what used to require an intermediary conveyance.

Does a mortgage on one joint tenant's interest defeat survivorship in Illinois?

No, since a 1998 amendment to the Joint Tenancy Act. A real estate mortgage on a joint tenant's interest does not defeat the right of survivorship when that joint tenant dies — the surviving joint tenants take the interest the deceased tenant could have transferred, subject to the mortgage.

Is survivorship automatic for jointly owned personal property in Illinois?

No, as a general rule. The Illinois Joint Tenancy Act abolishes automatic survivorship for personal property held jointly, unless a will or other written instrument expresses an intention to create it — though specific statutory exceptions exist for certain assets, including bank deposits.

This page provides general guidance only and is not legal advice. Figures and rules are based on Illinois statute (765 ILCS 1005), verified per our methodology. Confirm how a specific deed is actually titled with the county Recorder or a licensed Illinois attorney before acting.