How should you hold title when you buy a home in Illinois?
If you’re buying with someone else, Illinois gives you three main choices: tenancy in common, joint tenancy, or, for spouses and civil union partners buying their main home, tenancy by the entirety. If the deed doesn’t expressly say joint tenancy or tenancy by the entirety, Illinois law treats co-owners as tenants in common, with no automatic right of survivorship. Trusts and land trusts are a fourth path, and your attorney should settle the wording before the deed is drafted.
By Kealan O’Neil | October 22, 2026
Most buyers spend months on price, inspections, and interest rates, then decide how to hold title in about thirty seconds at the attorney’s request. That one line on the deed, whether it says joint tenancy, tenancy by the entirety, or nothing at all, controls what happens if an owner dies, gets sued, or divorces.
The question shows up on forums in exactly that after-the-fact way. One r/legaladvice thread is titled “Deed signed before marriage says ‘Joint Tenants’,” and an r/AskALawyer post asks whether a creditor can place a lien on an Illinois home “for a debt in one spouses name” when the deed says tenancy by the entirety.
Here’s how each option works under Illinois law, what changed in the statute on January 1, 2026, and six steps to take before closing. The examples use Yorkville and the Kendall County Recorder, but the rules apply statewide.
The three ways co-buyers can hold title in Illinois
The Illinois State Bar Association’s homebuyer guide says that if there is more than one buyer, your attorney will explain the title options available to co-owners: tenancy in common, joint tenancy, or tenancy by the entirety. The differences matter more than most people expect.
Tenancy in common is the default
Under Section 1 of the Illinois Joint Tenancy Act, 765 ILCS 1005/1, a deed to two or more people creates a tenancy in common unless it expressly says otherwise. Each owner holds a share, and Illinois Legal Aid Online notes those shares can be unequal.
There’s no right of survivorship. When one owner dies, that share passes to their heirs or to whoever is named in their will, not automatically to the co-owner. That can work well for co-investors or for buyers who put in very different amounts, and it can surprise a couple who assumed the survivor would keep the house.
Survivorship needs the right words
This form only exists when the deed expressly declares that the property passes “not in tenancy in common but in joint tenancy,” in the statute’s words. Joint tenancy carries a right of survivorship, so when one owner dies, the surviving owner holds the whole property without a probate transfer of that share.
Illinois Legal Aid Online explains that joint tenants share ownership equally, and that if one owner sells or transfers their share, that share becomes a tenancy in common. Joint tenancy works for any two or more people, married or not, but it doesn’t shield the house from one owner’s personal creditors the way the next option can.
Tenancy by the entirety is for spouses buying their main home
Section 1c of the Joint Tenancy Act, 765 ILCS 1005/1c, lets spouses in a marriage or civil union hold their homestead as tenants by the entirety. The property has to be maintained, or intended to be maintained, as a homestead, and the deed has to expressly say it’s going to tenants by the entirety.
Like joint tenancy, the survivor keeps the whole property. Unlike joint tenancy, no deed, contract for deed, mortgage, or lease of that homestead is effective unless both spouses sign it, so neither one can sell or borrow against it alone.
The bigger difference is creditor protection. Under 735 ILCS 5/12-112, property held this way can’t be sold to satisfy a judgment against only one spouse. There’s an exception if the home was moved into tenancy by the entirety with the sole intent to dodge existing debts the owner couldn’t pay, and income from the property can still be garnished.
Three more rules to know. A judgment of dissolution turns the estate into a tenancy in common unless the court directs otherwise.
If the spouses create another homestead together, the estate becomes joint tenancy by operation of law. And if two grantees who aren’t married or in a civil union take a deed that says tenancy by the entirety, the statute treats it as joint tenancy.
What changed on January 1, 2026
Public Act 104-40 (House Bill 1083) took effect January 1, 2026. It replaced “husband and wife” in Section 1c with “spouses during marriage or a civil union” and similar wording, and it states those changes are declarative of existing law.
In other words, the rules didn’t change, but deed forms that still read “husband and wife” are behind the statute. The same act made recording a quitclaim deed fee-free when its only purpose is to reflect a legal name change and the grantor and grantee are the same people.
Separately, Section 12-901 of the Code of Civil Procedure, as amended by Public Act 104-120 effective January 1, 2026, lists a homestead exemption from judgments of $50,000 for an individual’s interest in the home they live in, with co-owners limited to their proportionate share of $100,000. It’s a separate protection from tenancy by the entirety, and it covers only part of a home’s value.
When a trust or land trust fits better than joint tenancy
Some buyers skip co-ownership forms altogether and take title through a trust. Each option has lender and tax steps you’ll want handled before closing, not after.
Revocable living trusts
Fannie Mae accepts an inter vivos revocable trust as an eligible mortgagor, according to Fannie Mae Selling Guide B2-2-05. The title insurance policy has to show title vested in the trustee or trustees, with no exceptions for the trust, so your lender, attorney, and title company all need the trust documents early.
Section 1c also allows spouses or civil union partners who are the primary beneficiaries of their revocable trusts to keep tenancy by the entirety protection, but only if the deed to the trustee specifically says so. Section 12-112 extends the judgment protection to those trust interests.
Illinois land trusts
In a land trust, a trustee holds record title and you, as beneficiary, control the property. Fannie Mae’s general borrower rules in B2-2-01 list land trusts as an exception to the natural-person borrower rule in states where the beneficiary is an individual, and permit them on a negotiated basis where land trusts are widely accepted. Ask your lender before you commit, since not every loan program will take one.
A land trust doesn’t automatically cost you the general homestead exemption. Section 15-175 of the Property Tax Code refers to an occupant with a legal or equitable ownership interest who is liable for the taxes, which is how a land trust beneficiary can qualify, so confirm the filing details with the Kendall County Supervisor of Assessments after you close.
Transfer on death instruments
Illinois also lets an owner name a beneficiary through a transfer on death instrument under 755 ILCS 27/40. It must state that the transfer happens at the owner’s death and must be recorded with the county recorder before the owner dies, or it’s void. That’s an estate-planning tool your attorney can add after closing, not a replacement for getting the deed right.
What the best real estate agents in Yorkville, IL do before the deed is drafted
How you hold title is a legal call for your attorney, not your broker. A good agent’s job is to make sure the question gets asked early, while there’s still time to change the answer. Here’s the checklist I walk buyers through.
- Decide during attorney review, not at the closing table. Raise title during your Illinois attorney review period so your attorney has time to set the deed language before closing.
- Match the names to the loan. Your lender needs the exact names and form of ownership early. Under 765 ILCS 5/27, one spouse’s waiver of homestead rights doesn’t bind the other unless that spouse joins in, so a spouse who isn’t on title may still be asked to sign.
- Put unequal contributions in writing. If one buyer puts in more money, the ISBA guide notes your attorney may suggest a written co-owner agreement covering expenses, unequal contributions, and how the co-ownership ends. Joint tenancy means equal shares, so it may not fit that situation.
- Read the title commitment for the vesting line. Check the names and ownership language in your title commitment and owner’s title insurance policy against what you and your attorney agreed on before closing day.
- Check the recorded deed. Deeds for Yorkville homes are recorded with the Kendall County Recorder at 502 S Main St in Yorkville. Once yours is recorded, confirm the words “joint tenancy” or “tenants by the entirety” actually appear, and sign up for the county’s free Property Fraud Alert, which notifies you of recordings tied to your name.
- Fix it the right way if it’s wrong. A new deed between the same owners can change the form of ownership. Under 35 ILCS 200/31-45, deeds that confirm, correct, modify, or supplement a recorded deed without additional consideration, or where the consideration is under $100, are exempt from the Illinois real estate transfer tax, but your attorney should prepare the deed and confirm the exemption.
For details on recording, forms, and the fraud alert sign-up, see the Kendall County Recorder’s page.
Joint tenancy questions Yorkville buyers ask
What happens if our deed doesn’t say how we hold title?
Can an unmarried couple hold title as tenants by the entirety in Illinois?
Does tenancy by the entirety protect our home from all creditors?
Can we change from joint tenancy to tenancy by the entirety after closing?
How do I choose the top real estate brokerage in Yorkville, IL when I’m buying with someone else?
Decide how you’ll hold title before closing day
Joint tenancy, tenancy in common, tenancy by the entirety, and trusts each solve a different problem. The right answer depends on who you’re buying with, how you’re paying, and what you want to happen later, and it’s much easier to get right before the deed is signed than after it’s recorded.
If you’re buying in Yorkville, Oswego, Montgomery, or anywhere in Chicago’s Western Suburbs, I’ll make sure title comes up during attorney review, get your lender and attorney the same names early, and check the title commitment with you before closing. If you’re still deciding where to buy, take a look at my Yorkville, IL real estate page. Call or text Kealan at 630-425-8815.
About Kealan O’Neil
Kealan O’Neil is the Designated Managing Broker and founder of O’Neil Property Group, an independent real estate brokerage based in Yorkville, Illinois. He and his team help buyers and sellers in Yorkville, Oswego, Montgomery, and the surrounding Kendall and Kane County communities, and he owns and manages a local rental portfolio, so he approaches every decision as both a broker and an investor. Call or text Kealan at 630-425-8815.
This post is general information about real estate in the Fox Valley, not legal, tax, or financial advice. Real estate laws, tax rules, and municipal ordinances change, and how they apply depends on your specific situation. Talk with a licensed attorney, CPA, or lender before making decisions about a purchase, sale, or tax matter. O’Neil Property Group is a licensed Illinois real estate brokerage.