Transfer on Death Deed Illinois: How to Use a TODI

Daci Jett Law — Daci Jett, Attorney at Law (Illinois) — Evanston, Illinois.

A transfer on death deed Illinois homeowners use can pass real property to a beneficiary at death without probate when statutory requirements are met. Illinois calls this a transfer on death instrument (TODI). It must be properly signed, witnessed, notarized, and recorded before the owner dies.

Sources: transfer authority, execution and recording requirements.

Key Takeaways

• Illinois TODIs can transfer real property at death outside probate. Source
• A signed TODI must also be recorded before the owner dies. Source
• A TODI does not erase existing mortgages or liens. Source
• A will cannot revoke a recorded Illinois TODI. Source

You want to know how to make sure someone gets the house. Start with how you own the property and whom you want to receive it, then work through the signing and recording requirements below.

Transfer on Death Deed Illinois: What Is a TODI?

An Illinois transfer on death instrument names a beneficiary to receive real property at the owner’s death. A beneficiary is the person or entity designated to receive the property. Illinois permits these transfers under 755 ILCS 27/20.

The governing law is the Real Property Transfer on Death Instrument Act, 755 ILCS 27. A TODI is nontestamentary: it operates outside a will and cannot be admitted as the owner’s will. Sections 1 and 30 establish those distinctions.

Eligibility depends on ownership. An owner must be an individual holding an interest in Illinois real property, rather than holding it as a trustee, representative, agent, or other fiduciary. A fiduciary acts for someone else’s benefit. See Section 5.

The law is not limited to a primary residence. Section 20 authorizes transfers of real property, including interests subject to contingencies. For context beyond the home, read how probate works in Illinois.

How would I go about doing this? Illinois TODI steps

An Illinois TODI requires eligible ownership, a properly prepared instrument, compliant signing, and recording before death. Recording means entering the instrument in the county’s public property records. The framework comes from Section 5 and Section 40.

1. Confirm eligible ownership.Review your current deed before selecting a form. Under Section 5, the eligible owner is an individual holding an Illinois real-property interest, not someone holding it in a trustee, fiduciary, representative, or agency capacity. If another owner appears on the deed, seek advice about that ownership arrangement before proceeding.
2. Prepare a recordable instrument naming beneficiaries.Identify your intended beneficiaries and state that the transfer occurs at your death. The document must contain a recordable deed’s essential elements and formalities and substantially meet the execution requirements. Beneficiary addresses and consideration, meaning payment or value exchanged, need not be stated. These requirements appear in Section 40.Have your current property documents and beneficiary choices ready for the drafting discussion. A document’s title alone tells you little about whether its contents fit your ownership and wishes. Before relying on an online form, read about online estate planning mistakes.
3. Sign with witnesses and a notary.The owner signs, or someone signs in the owner’s presence and at the owner’s direction. Two or more credible witnesses attest in writing; the owner and witness signatures require notarial acknowledgment. Witnesses attest execution in their presence, voluntariness, and their belief in the owner’s sound mind and memory. A beneficiary or beneficiary’s spouse serving as a witness can invalidate that beneficiary’s gift. Use independent witnesses. See Section 45.
4. Record the TODI before the owner dies.Record in every county containing any part of the property. Failure to meet the statutory requirements makes the TODI void. Keeping a signed copy at home does not satisfy recording. See Section 40.Evanston is in Cook County. For local recording inquiries, Cook County directs property questions to the Cook County Clerk’s Recordings Division. Confirm the applicable recording requirements before submitting your instrument.

After the owner dies

A beneficiary taking under a TODI may record a notice of death affidavit, a sworn statement, to confirm title, meaning legal ownership. Filing that affidavit is not a condition of title transfer, under Section 75. Keep that optional post-death filing distinct from the TODI’s required lifetime recording under Section 40.

Naming beneficiaries and planning for a death before yours

Choose your first beneficiary and consider whom you would want if that person dies before you. Illinois permits death-effective transfers with contingent interests, meaning interests that depend on a condition, under Section 20.

If a sole TODI beneficiary does not survive the owner, the default sends the property to the owner’s estate, unless the instrument’s terms or applicable law provide otherwise. Section 65(a) sets out that rule.

If the deceased beneficiary is the owner’s descendant, such as a child or grandchild, surviving descendants of that beneficiary take the share per stirpes, subject to the instrument’s terms and applicable law. Per stirpes means distribution by family branch. See Section 65(a).

Before choosing backup wording, ask yourself whose family branch you want included. You might care deeply about providing for a child’s family, yet have a different preference when naming a friend. Make those wishes explicit in the planning conversation.

If you share ownership, ask for individualized advice. Bring the current deed and explain your preferences for each beneficiary; do not assume one family’s arrangement fits yours. For broader estate-settlement questions, explore probate services.

Can’t you just add someone’s name to the deed instead?

Adding an owner and naming a TODI beneficiary are different choices. An Illinois TODI creates no present legal or equitable interest for its beneficiary, meaning the designation gives that beneficiary no current ownership interest. See Section 60.

An Illinois TODI preserves the owner’s lifetime right to sell, transfer, or encumber the property. To encumber property means to place a financial burden or claim against it. Section 60 preserves those rights.

A TODI beneficiary takes subject to existing mortgages, liens, and other interests at death, subject to the Probate Act and Conveyances Act. A lien is a legal claim against property. See Section 65(b).

If you still have a mortgage, include it in the planning discussion. Decide what you want to accomplish before asking someone to change the deed. Is your goal to share ownership now, or to arrange who receives the property after you die? That question deserves a deliberate answer.

How to revoke or change an Illinois TODI

Revoking an Illinois TODI requires a replacement TODI or an instrument expressly revoking it. The new instrument must be executed, witnessed, and acknowledged after the original’s acknowledgment, then recorded before death wherever the original was recorded. See Section 55.

Destroying the document, leaving a revocation unrecorded, or changing a will cannot revoke a recorded TODI. Section 55 rules out those methods.

When your wishes change, gather the existing TODI and any related property documents before seeking help. Explain whom you now want to benefit and what prompted the change. Ask how the replacement or revocation will be completed and recorded.

Keep a clear record of the documents involved in your plan. A family member sorting through your papers should not have to guess which version reflects your current wishes. For a broader plan review, read about estate planning mistakes to avoid.

TODI or living trust for your home?

A TODI addresses a transfer at death; a revocable living trust may warrant discussion when your goals include broader property management. A trust is a legal arrangement for holding and managing assets for beneficiaries. Compare the planning questions before choosing a document.

Consider this hypothetical: An Evanston, Illinois homeowner asks Daci Jett whether a TODI fits broader management goals. The useful starting point is what the homeowner wants the plan to accomplish.

Explore estate planning services and compare wills and trusts for broader context.

You can discuss your home-transfer plan with Daci Jett Law alongside your broader estate-planning goals.

Illinois TODI questions

These transfer on death deed Illinois questions address recording, property eligibility, and beneficiary choices.