How to deed the house? (tenants, clause, sale, agreement)

[ChicahgoChicahgo]

My partner and I are closing in two weeks and I asked my attorney to title the house as Joint Tenants at 50/50 ownership. My understanding is this way of titling is best because if either of us dies, the other automatically receives the other half without it having to go to probate. My attorney is saying she is going to do it as Tenants in Common, but had this line included:




Theright of survivorship vesting would pass the deceased owner's interest directlyto the survivor upon death




From everything I've read, Tenants in Common don't have survivorship rights and it would go to probate. Is there a clause that she is planning on adding to the title regarding survivorship rights? Would that clause even be enforceable if it somehow did go to probate.




I've already left a message with my attorney and am waiting for her response, but I want a second opinion on this.

[mathjak107]

You are correct .. tenancy in common does usually require probate because how much of a share is passed is controlled by a will .

tenants in common can own unequal amounts of shares .... there is no rights of survivorship and so how much each person gets if someone dies is carried out via a will ... a will requires probate .....

Joint tenancy can only be equal shares and has rights of survivorship since there is no other choice in share

[jackmichigan]

If you want to own it equally with full rights of survivorship, I see no reason why it should be titled as Tenants in Common.

[jiminnm]

I am not up on Illinois property law, but a tenant in common usually owns a stated share in the property (50% in your case). That means if one dies, their 50% share would be part of their estate and be distributed as the will or trust directs. Illinois recognizes transfer on death deeds, but may have specific required language (maybe that is what your lawyer is recommending). A tenant in common may also be able to force a sale if s/he wants to leave but the other does not (absent some written agreement on how to handle that situation).



A joint tenancy with survivorship rights gives each an interest in the whole property, with full ownership going to the remaining person with the other dies.



Your attorney should explain the various tenancies to you and what other agreements may be recommended if you are not married (the law frequently treats married and unmarried partners differently in real property matters, and other agreements can remedy that).