The Illinois Joint Tenancy Act lets two or more people own property together with a right of survivorship, so that when one co-owner dies, their share passes directly to the surviving owners without going through probate. The catch is that Illinois presumes any co-ownership is a tenancy in common unless the deed says otherwise in the exact way the statute requires. Get the language wrong at signing, and the survivorship you thought you had may not exist.
Creating a Valid Joint Tenancy
Illinois defaults to tenancy in common. To override that default, the deed must expressly state that the property passes “not in tenancy in common but in joint tenancy.”1Justia Law. Illinois Code 765 ILCS 1005 – Joint Tenancy Act Most deeds use the fuller phrase “as joint tenants with right of survivorship and not as tenants in common” to leave no room for argument.
Beyond the words, Illinois still applies the common law rule that a joint tenancy requires four unities: time, title, interest, and possession. All co-owners must take their interest at the same time, through the same instrument, in equal shares, with equal rights to possess the whole property. Break any one of those unities and the joint tenancy can be destroyed.
Deeding to Yourself and Another
A sole owner who wants to add someone as a joint tenant used to have to route the deed through a third party first. Section 1b of the Joint Tenancy Act eliminated that step. A property owner can now deed directly to themselves and another person as joint tenants, and the arrangement carries the full effect of a common law joint tenancy.2Justia Law. Illinois Code 765 ILCS 1005 – Joint Tenancy Act – Section 1b The deed still needs the express survivorship language.
Recording
Record the deed with the county recorder where the property sits. An unrecorded deed is not automatically void between the parties, but after one co-owner dies, a missing or unrecorded deed forces the survivor to prove ownership the hard way.
Tenancy by the Entirety: The Married-Couple Alternative
If you are married and buying a primary home together, tenancy by the entirety is a separate option worth knowing about before defaulting to joint tenancy. It is available only for homestead property, and the deed must specifically declare it. Like joint tenancy, it carries a right of survivorship. Unlike joint tenancy, neither spouse can sell, mortgage, or lease the property alone; every deed, mortgage, or lease requires both signatures.3Illinois General Assembly. 765 ILCS 1005/1c
That two-signature rule is where the creditor protection comes from. A creditor holding a judgment against only one spouse has limited ability to reach a home held by the entirety, because one spouse alone cannot transfer or encumber it. A creditor of one joint tenant, by contrast, can attach a lien to that tenant’s individual interest. For couples whose main worry is shielding the home from one spouse’s separate debts, tenancy by the entirety is stronger.
Divorce automatically converts a tenancy by the entirety into a tenancy in common unless the court orders otherwise. If a deed tries to create a tenancy by the entirety between two people who are not actually married, Illinois treats it as a joint tenancy instead.3Illinois General Assembly. 765 ILCS 1005/1c
Rights and Responsibilities While You Both Own It
Every joint tenant has an equal right to occupy and use the entire property, no matter how many co-owners there are. No tenant can shut another out of any part of it. The shared use comes with shared costs: mortgage payments, property taxes, insurance, and maintenance. When one co-owner stops paying, the others are still on the hook.
A tenant who pays more than their share can seek reimbursement, but collecting usually means going to court. The harder problems tend to be about direction, not dollars: whether to sell, rent, or improve the property. The law does not require unanimous consent for most decisions, and a tenant who acts alone risks triggering either a severance or a partition suit from the others.
How Joint Tenancy Ends
Joint tenancy ends the moment one of the four unities breaks. The arrangement then becomes a tenancy in common, and the right of survivorship on the severed share is gone. Whether an act severs is where people most often guess wrong.
Selling or Transferring a Share
A conveyance is the clearest severance. When a joint tenant sells or transfers their interest to a third party, the joint tenancy is severed as to that share, and the new owner takes as a tenant in common with the remaining co-owners.4Justia Law. Jackson v. O’Connell, 1961, Supreme Court of Illinois
A Mortgage by One Tenant Does Not Sever
This one surprises people. In Illinois, a mortgage placed by a single joint tenant on their interest does not sever the joint tenancy. Illinois follows the lien theory of mortgages: a mortgage creates a lien against the property rather than transferring title. Because title stays intact, the unity of title is preserved and the joint tenancy survives.5Justia Law. Harms v. Sprague, 1984, Supreme Court of Illinois
The consequence is significant. If the mortgaging tenant dies first, the surviving tenant takes the property free and clear of that mortgage. The lender’s lien dies with the borrower, because the survivor’s ownership comes from the original joint tenancy rather than from the deceased tenant’s estate. Lenders who accept only one joint tenant’s interest as collateral are taking a real risk.
Partition
When co-owners cannot agree, any of them can file a partition action in the circuit court of the county where the property is located. The court first tries to physically divide the property. If physical division is impractical, which it almost always is for a single home, the court orders a sale and splits the proceeds.6Justia Law. Illinois Code 735 ILCS 5 Article XVII – Partition Filing a partition suit terminates the joint tenancy. It is slow and costly, but it exists so no owner is permanently trapped in an unworkable arrangement.
What Happens When a Joint Tenant Dies
Ownership passes to the surviving tenants automatically and immediately, outside probate. Automatic does not mean self-documenting. The survivor still needs to update the public record, and that step is easy to put off.
To clear title, the surviving tenant records a Deceased Joint Tenancy Affidavit with the county recorder. Typical attachments include:
- A certified death certificate as proof of the tenant’s death.
- A copy of the will if one exists; the affidavit must state whether the deceased left one, and the original goes to the probate court.
- Documentation showing no state or federal estate tax is owed, or that any tax due has been paid.
- Notarization of the affidavit before a notary public.
Exact requirements vary by county and by the title insurance company that will handle any future sale. Until the affidavit is recorded, the survivor may struggle to refinance, sell, or insure the property.
Tax Consequences
Joint tenancy skips probate; it does not skip taxes. Families who assumed the transfer at death was entirely tax-free have been caught out on all three fronts below.
Estate Tax
Under 26 U.S.C. ยง 2040, the full value of jointly held property is included in the deceased tenant’s federal gross estate unless the survivor can prove they contributed to the purchase price. For spouses, only half is included regardless of who paid. The federal estate tax exemption for 2026 is $15 million per person, so federal tax reaches only very large estates.7Internal Revenue Service. What’s New – Estate and Gift Tax
Illinois has its own estate tax with a much lower threshold. Estates over $4 million are subject to it, and jointly held property counts toward the total.8Illinois Attorney General. Estate Tax Instruction Fact Sheet Once a home, retirement accounts, and life insurance are added together, that ceiling catches more Illinois families than people expect.
Gift Tax
If one person pays the full purchase price but titles the property jointly with someone else, the IRS treats the other person’s share as a gift. Gifts above the annual exclusion require a gift tax return (Form 709). For 2026 the annual exclusion is $19,000 per recipient.9Internal Revenue Service. Frequently Asked Questions on Gift Taxes A parent who adds a child to the deed of a $400,000 home has made a $200,000 gift of equity. No tax may be due at that moment thanks to the lifetime exemption, but the return still has to be filed.
Stepped-Up Basis
An outright inheritance carries a stepped-up basis equal to the property’s fair market value at the date of death. Joint tenancy delivers that benefit only in part. The survivor gets a stepped-up basis on the deceased tenant’s share; their own share keeps its original basis. Two siblings who bought a property together for $200,000 that was worth $500,000 at the first sibling’s death leave the survivor with a basis of $350,000: their original $100,000 plus the stepped-up $250,000 on the deceased sibling’s half. The gap between that basis and the eventual sale price is taxable capital gain.
Joint Tenancy and Medicaid
Joint tenancy also complicates long-term care planning. Medicaid caps the assets an applicant can hold, and jointly owned property counts. The home is often exempt while the applicant or their spouse lives in it, but once neither does, it becomes a countable asset.
The Five-Year Look-Back
When someone applies for Medicaid coverage of long-term care, the state reviews all asset transfers made during the 60 months before the application. Adding someone to a deed as a joint tenant for less than fair market value counts as a transfer and draws scrutiny. If the state finds the transfer was made to qualify for Medicaid, the applicant faces a penalty period during which Medicaid will not cover long-term care costs.
Some transfers are exempt: transfers to a spouse, to a child under 21, or to a child who is blind or has a disability, along with transfers where the applicant received fair market value in return. Adding a healthy adult child to the deed a few years before a nursing home stay is not on that list.
Estate Recovery
After a Medicaid recipient dies, the state can seek reimbursement for benefits it paid. Although survivorship transfers the property outside probate, the state may still pursue recovery in some situations, particularly if the property is later sold. Anyone holding property in joint tenancy with a person who receives or may need Medicaid should consult an elder law attorney before changing the title.