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    Owning real estate: Tenants by the entirety
Part of a series
by Roger McCaffrey

Q. My lover and I bought our house together and hold title in joint tenancy. Our lawyer said that in case one of us should die the house would go to the survivor with or without a will. I put up all the money for the down payment for the house and am concerned that I will be protected. My partner is in business for himself and is struggling in a downward economy. I am worried he will have creditors that may try to take away the house. Does owning the house in joint tenancy give me the protection I need?

A. Many couples own title to their homes as "joint tenants with right of survivorship" to ensure that title to the house will pass to the surviving lover if one should die. When one joint tenant dies the remaining joint tenant automatically owns the entire property, without the necessity of probate court proceedings.

When a joint tenant dies, all that is usually required to clear the title of the deceased joint tenant's interest is to submit to the title insurance company, which examines the status of title, an affidavit of survivorship and a certified copy of the deceased joint tenant's death certificate.

Tenancy by he entirety combines the survivorship attributes of joint tenancy with the bonus of limited protection against creditors. That is, a judgment creditor of just one of the homeowners cannot enforce its lien against the residence of the homeowners owned as tenants by the entirety.

Now this form of ownership is available to all couples who are partners in an Illinois Civil Union. If you enter into a Civil Union and sign and record a new deed conveying the title of your house, which has to be your residence, to yourselves, as tenants by the entirety, the creditors of one of you cannot take away the house. This is asset protection in its greatest form.

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There are some rules and exceptions - a creditor may tear down the tenancy by the entirety protection when the property is conveyed with the sole intent to avoid the payment of debts existing at the time of the transfer. There is no protection if both owners are liable to the creditor for the debt. And the protection only applies to your main residence, homestead, and not to a vacation house or vacant real estate.

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