Disagree with attorney on how to title house

C

Chicahgo

New Member
Jurisdiction
Illinois
My partner and I are closing on a house in two weeks and I asked my attorney to title it as Joint Tenants at 50/50 ownership. I want it that way so that we would have survivorship rights in case of death and the deceased's half would automatically go to the other without going to probate or needing a will. My attorney is telling me she is going to do it as Tenants in Common, which to my understanding does not have survivorship rights. Is there a way to do it as Tenants in Common and have a rider that spells out survivorship rights? If so, is that even enforceable? Or is my attorney way off base and steering us in the wrong direction?
 
Sigh, this revives suppressed memories of that year I was forced to spend learning property law.

I think I retained most of it. :D

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There are risks greater than what will happen when two UNMARRIED people enter into any real estate ownership compacts, expecting death do them part.

More often than not, they do themselves part, or at least one of them effects that strategy.

Even when they marry, divorce does 50% of them part, long before the Grim Reaper calls for one or both of them.

Okay, here you go, Illinois law on property ownership.

I type, you decide.



When two or more people share ownership of land or other real estate, each person owns an interest in the property.

Illinois law requires that co-owners of property make a decision about how the title of the property is held.

In Illinois, a title can be held in three ways:
tenancy by the entirety,
tenants in common,
joint tenants with the right of survivorship.

Tenancy by the entirety in Illinois is a means of holding title that is exclusively available to married couples. One of the benefits of this type of title is that it affords extra protection to marital property against some creditors. For example, the property under this title may not be divided, sold, or otherwise encumbered for any non-joint debts of a husband and wife without the consent of both spouses.

**Important: Illinois law does NOT offer an automatic tenancy by the entirety provision for married couples that share a home as joint tenants. Instead, the courts require that specific terminology be employed in the deed to create this form of tenancy.

A title held as tenants in common is the most basic form of title. In Illinois, this form of title is considered to be the default if no other specifications of ownership are defined.

Tenants in common usually have different interests in ownership of the property. For example, Bob and Stan may own 25% each, while Steve owns 50%. Tenants in common may also acquire ownership at different times. However, these "fractional interests" do not mean that any one owner is entitled to use the property more than the others. The equal use of the property is known as unity of possession.

Tenants in common each hold independent ownership interests. This means that each owner's share of the property may be sold, conveyed or transferred without prior permission from the other owners. Creditors may also come after one owner's share of property for debts owed.

There is no "right of survivorship" for tenants in common. If one owner dies, his or her share of the property will be transferred according to that owner's will or by the intestacy statute. Without a will, the owner's heirs or beneficiaries will become the new owners of that share.

Joint tenants are different from tenants in common in the fact that they acquire equal shares of the property on the same property deed at the same time. The terms of joint tenants are stated specifically in the deed to the property.

A joint tenant agreement can be broken if one tenant sells his or her interest to someone else. This will change the ownership to tenants in common for all parties involved. Keep in mind that a tenancy in common agreement can be broken if one or more of the tenants buys out the other tenants, or if a partition action is filed with the court. A partition action allows an heir to sell his or her share.

Joint tenancy is the title that is usually held between spouses and other family members. It allows for the property to pass to the survivors of that person without having to go through probate court, saving both money and time.

One of the biggest differences between these two tenancies is what can happen to the property when one of the owners passes away. With a joint tenancy agreement, the interest belonging to the owner that passed away usually gets transferred to the surviving owner. For instance, if three people own the house jointly, the share of the person that passed away is divided equally among the surviving tenants. That is the right of survivorship.

Despite the benefits of joint tenancy, there are financial aspects you need to consider. In a joint tenancy, if one of the tenants owes money, creditors are able to attach the interest of the debtor to the property and force a foreclosure. They could do this even if the other tenant had nothing to do with the debt in question.




In Illinois, What Happens to a Tenancy in Common When There Is a Divorce?
 
Chicahgo said:
My partner and I are closing on a house in two weeks and I asked my attorney to title it as Joint Tenants at 50/50 ownership. I want it that way so that we would have survivorship rights in case of death and the deceased's half would automatically go to the other without going to probate or needing a will. My attorney is telling me she is going to do it as Tenants in Common, which to my understanding does not have survivorship rights. Is there a way to do it as Tenants in Common and have a rider that spells out survivorship rights? If so, is that even enforceable? Or is my attorney way off base and steering us in the wrong direction?
Click to expand...
When you asked your attorney for an explanation, what did she say?
 
My attorney has not responded. Army Judge's response above is exactly what I read too. If we don't do it as Joint Tenants, we lose survivorship rights. Shouldn't my attorney have asked me how I wanted it done....and then done what I asked rather than pushing us completely in the wrong direction???
 
Joint tenancy comes with the right of survivorship. Tenancy in common does not.

It's your attorney's job to advise you how to title your house, but it is not his place to dictate how you do it. He's certainly free to strongly dissuade you against one thing or another, but it's your call. You tell him what you want, and he either does what you want or quits or you fire him.
 
Chicahgo said:
My attorney has not responded. Army Judge's response above is exactly what I read too. If we don't do it as Joint Tenants, we lose survivorship rights. Shouldn't my attorney have asked me how I wanted it done....and then done what I asked rather than pushing us completely in the wrong direction???
Click to expand...


This Illinois lawyer explains it in detail:

How is title to Illinois real property held?

Reda | Ciprian | Magnone, LLC
8501 W. Higgins Suite 440
Chicago, Illinois 60631

Call: (773) 399-1122
Fax: (773) 399-1144

who we are
Firm Overview
Reda | Ciprian | Magnone, LLC serves the public and other Illinois attorneys by providing timely, accessible information about Illinois law, specifically, estate planning, probate, entity formation, corporate, landlord-tenant, real estate & other areas of the law. Our firm has assisted clients as far away as France and India in their Illinois legal matters.
 

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