Illinois: Affidavit of Surviving Joint Tenant Title-Clearance Requirements

Requirements one by one

Illinois uses general recording law, not a death-affidavit statute

The title itself must carry survivorship. Under 765 ILCS 1005/1 and /1b, the
creating instrument must expressly choose joint tenancy or a right-of-survivorship
estate instead of tenancy in common. Section 1c separately covers qualifying
spousal homestead property held in tenancy by the entirety and says that, when one
tenant dies, the survivor retains the entire estate. These provisions govern the
ownership form; none prescribes a post-death affidavit, signer, factual checklist,
or certified death-record attachment.

The filing route instead comes from 765 ILCS 5/28. A title-affecting instrument is
recorded in the county where the real estate lies. Section 55 ILCS 5/3-5022
generally requires the face of the document to identify the preparer's name and
address. That section expressly excepts a death certificate, as well as a court
order or process, a will, and an instrument executed or acknowledged outside
Illinois. The exception removes the preparer statement; it does not say that the
death certificate must be certified or attached to a survivor-signed affidavit.

The statutes also do not impose a death-specific oath, jurat, acknowledgment,
witness, personal-knowledge test, or filing clock. Section 31 makes an instrument
relating to real estate notice to later purchasers and creditors from filing even
if it was not acknowledged or proved. But the same sentence says an unproved
instrument cannot be read as evidence until its execution is proved under the
applicable evidence rules. Recording therefore does not make the document's
factual recitals conclusive or itself guarantee clear title.

The surveyed provisions prescribe no statewide tax or ownership-report companion
for this general route. In particular, 35 ILCS 200/31-45(e) is not an express
"operation of law" exemption: it covers deeds or trust documents whose actual
consideration is less than $100. Confirm any tax declaration, exemption notation,
format, fee, and indexing requirement with the recorder for the property county.

What trips people up

The recorded deed controls whether survivorship exists. A death filing cannot
repair a deed that created a tenancy in common, or resolve whether survivorship was
severed before death. Sections 1 and 1b require the creating instrument itself to
use the survivorship structure.

A death-certificate exception is not a certified-copy mandate. Section 3-5022
says a death certificate need not identify a document preparer. It does not require
a certified certificate, require an affidavit, or define the certificate's title
effect.

Record notice and proof are different. Section 31 gives filing a notice effect
even without acknowledgment, but it separately preserves the need to prove
execution before the writing may be read as evidence.

Common questions

Must the surviving owner sign a sworn and notarized affidavit? The surveyed
statewide provisions do not impose that formality. They contain no prescribed
survivor-affidavit form, and § 31 expressly contemplates a recorded writing that
was not acknowledged or proved.

Does Illinois require a certified death certificate? Not in the provisions
surveyed here. Section 3-5022 expressly excepts a death certificate from the
preparer-identification rule, but it does not specify certification or attachment.

Does recording the document transfer the deceased owner's interest? The
survivorship feature comes from the title created under §§ 1, 1b, or 1c. Section 31
gives the later filing notice effect; it does not say the filing itself conveys the
interest or conclusively establishes every fact stated in it.

Statutes and sources

• 765 ILCS 1005/1, /1b, and /1c — express survivorship title and tenancy by the
  entirety. https://www.ilga.gov/documents/legislation/ilcs/documents/076510050K1.htm
  https://www.ilga.gov/documents/legislation/ilcs/documents/076510050K1b.htm
  https://www.ilga.gov/documents/legislation/ilcs/documents/076510050K1c.htm
  (accessed 2026-08-02)
• 765 ILCS 5/28 and /31 — property county and recording's notice/evidence effect.
  https://www.ilga.gov/documents/legislation/ilcs/documents/076500050K28.htm
  https://www.ilga.gov/documents/legislation/ilcs/documents/076500050K31.htm
  (accessed 2026-08-02)
• 55 ILCS 5/3-5022 — preparer identification and death-certificate exception.
  https://www.ilga.gov/documents/legislation/ilcs/documents/005500050K3-5022.htm
  (accessed 2026-08-02)
• 35 ILCS 200/31-45 — transfer-tax exemptions for specified deeds and trust
  documents. https://www.ilga.gov/documents/legislation/ilcs/documents/003502000K31-45.htm
  (accessed 2026-08-02)