How Should I Take Title to the Property I’m Buying?

If you are buying a house or other real estate in Illinois with another person, beware that there are 3 If you are buying property in Illinois with someone else, you should be aware that there are three different ways to take ownership. How you take title to your property is important, because it will determine who can sign documents for property and the future ownership of the property after an owner dies. The three different ways to hold title jointly with another person have different effects on inheritance and creditors’ claims. Below are explanations of the three different ways of taking title jointly with another person.

  1. Tenants in Common: If title is not specified in the Deed, there is a presumption in Illinois that the parties are taking title as Tenants in Common. This means that each owner has an equal ownership interest as the other owners, unless otherwise specified. Even if the parties own an unequal percentage of the property, all owners may use the entire property. If one of the parties dies, that party’s ownership will pass pursuant to his or her Will, or the Illinois intestate laws if that party does not have a Will. Also, creditors of one owner can partition or encumber the property to satisfy a judgment against the owner. Creditors can only recover up to that owner’s share of the property.
  1. Joint Tenancy with the Right of Survivorship: When parties own property as Joint Tenants with the Right of Survivorship, all of the parties own an equal percentage of the property and all parties have an equal right to possession of the property. When one party dies, that party’s percentage of ownership is automatically transferred to the other Joint Tenant(s). It is important to note that the property passes to the other Joint Tenant(s) without going through Probate Court and despite what may be in the deceased party’s Will. Creditors can partition or encumber the property to satisfy a judgment against the owner. Creditors can only recover up to that owner’s share of the property.
  1. Tenants by the Entirety: Tenants by the Entirety is an option that is available only to married couples, and it is only available for their principal residence because it provides extra protections to the marital property. Like Joint Tenancy, if one of the parties dies, the property automatically passes to the surviving party without going through the probate process and despite what the deceased party’s Will directs. In addition, owning property in this manner protects the marital property from some creditors. Only creditors for the parties’ joint debts can reach the property (i.e. debt owed to the IRS for joint tax returns.) If there is a non-joint debt, the property cannot be portioned, sold, or encumbered without the consent of both parties.

As you can see, the different ways of taking title to property have significant effects on your rights. In addition to the three ways of taking title, you may also want to consider taking title to property in the name of a Trust, Partnership, or LLC. It is important to consult with an attorney before taking title to property to make sure your rights in the property are best protected.

Categorised in: Estate Planning, Real Estate Law