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.