The Law Offices of Alan E Sohn

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TRUST OWNERSHIP OF TENANCY BY THE ENTIRETY PROPERTY

As most of us know, married couples may hold title to their homestead property as tenants by the entirety. This classification of ownership allows a married couple to hold title to such property in a protected state from their individual creditors where the debt is not the joint debt of the couple.

Oftentimes, married couples who have created a revocable trust would like to transfer the title to their marital residence to their trust or trusts. This was not possible while still retaining the protections of the tenants by the entirety classification, until the Joint Tenancy Act and the Code of Civil Procedure were amended in 2011.

The amendment permits a married couple who wish to own their marital residence in their individual trust or trusts to take advantage of tenants by the entirety benefits by owning their interest in the property in their individual trust or trusts as tenants by the entirety.

A cautionary note is that if the transfer to the trust or trusts was made with the “sole intent” to avoid the payment of debts existing at the time of transfer, which the transferor was not otherwise able to pay at the time, the tenancy by the entirety protection will not be afforded.

About Alan Sohn

Alan E. Sohn received his Juris Doctorate from the College of Law of the University of Illinois in 1968 and has been a practicing attorney for more than 41 years. Mr. Sohn has been a partner in both large and smaller law firms and for the past 21 years has been in private practice. Mr. Sohn is admitted to practice law before the Illinois Supreme Court Trial Bar, United States District Court for the Northern District of Illinois, Seventh Circuit Court of Appeals and the United States Supreme Court. He is also a member of the Chicago Estate Planning Council.

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