Transfer on Death Instrument (TODI) in Illinois: Pass Your Home Without Probate

1. How to make a valid TODI in Illinois in five steps

A transfer on death instrument fails in two ways: it is signed with one witness, or it is never recorded. Both are found out only after the owner has died, so each of the five steps matters.

Step 1 of 5 Draft the instrument

It must contain the essential elements and formalities of a recordable deed (the owner's name, the legal description, the parcel number, the beneficiary's name and the prepared-by statement) and state that the transfer occurs at the owner's death (755 ILCS 27/40); no consideration or beneficiary address is needed. Name contingent beneficiaries and say what happens if a beneficiary dies first; by default, multiple beneficiaries take equal shares as tenants in common with no survivorship (27/65(a)(2)).

Step 2 of 5 Confirm capacity and who may sign

The capacity required is the same as for a will, and an agent under a power of attorney cannot make or revoke a TODI for the owner, even if the power says so (27/35). Joint owners can sign together; a TODI does not sever a joint tenancy, and the survivor's designation controls (27/70).

Step 3 of 5 Sign before two credible witnesses and a notary

The owner signs, two witnesses attest that the owner signed voluntarily and appeared of sound mind and memory, and all three signatures are acknowledged before a notary (27/45); one witness makes the instrument void. A beneficiary or the beneficiary's spouse should not witness; if one does, that beneficiary's gift is void unless two other disinterested witnesses signed (27/45(c)).

Step 4 of 5 Record it before death

The TODI must be recorded in the county where the property is located while the owner is alive (27/40(a)(3)); the Cook County Clerk's fee is $59. An unrecorded TODI, however well drafted, transfers nothing (27/40(b)).

Step 5 of 5 Store the recorded copy and keep your plan consistent

Keep the recorded instrument with your will and trust documents, tell your executor where it is, and review the designation when a beneficiary marries, divorces or dies or when you move the property into a trust.

2. What an Illinois transfer on death deed (TODI) is

The Illinois transfer on death deed is called a transfer on death instrument, or TODI. The Act took effect January 1, 2012 for residential real estate of one to four units and was expanded, effective January 1, 2022, to any interest in Illinois real estate capable of passing at death (755 ILCS 27/5 and 27/10). The owner records the instrument during life; it states that the transfer is to occur at the owner's death; and at death the property passes to the named beneficiary without a probate estate.

A TODI is nontestamentary: it is not a will, cannot be admitted to probate as one, and is governed by the law of nontestamentary transfers (755 ILCS 27/30). It is revocable no matter what it says (27/25). Beneficiaries can be individuals, a trust, a charity or an entity, named concurrently, successively or as contingent beneficiaries (27/20), and a transfer to the trustee of a revocable trust is expressly permitted (27/21).

Khatib Law LLC prepares and records TODIs for homeowners across the southwest suburbs and Chicago from its Palos Heights office. Hani H. Khatib, Attorney at Law · CPA · LL.M. (Taxation), handles the instrument and the tax question that always comes with it: whether the beneficiary should receive the property at death, with a new basis, or during life, with the owner's basis.

3. What a TODI does during your life: nothing

Section 60 of the Act lists what a recorded TODI does not do while the owner is alive. It does not affect the owner's right to sell, transfer or mortgage the property, the rights of a lender or buyer, the owner's or the beneficiary's creditors, or anyone's eligibility for public assistance, and it creates no interest in the beneficiary. In practice you keep the Homeowner and Senior Exemptions and any senior freeze because you are still the owner-occupant, your mortgage is undisturbed, and you can sell the house tomorrow. Notice to the beneficiary, delivery, acceptance and consideration are all unnecessary (27/50); many beneficiaries never learn of the instrument until the owner dies.

4. Changing or revoking a TODI

A recorded TODI can be revoked, in whole or in part, only by a later TODI that revokes it expressly or by inconsistency, or by an instrument of revocation that expressly revokes it. Either way, the later document must be signed, witnessed and notarized the same way and recorded before the owner's death in the county where the original was recorded (755 ILCS 27/55). What does not work: tearing up or marking the original, an unrecorded revocation, or a provision in a will (27/55(b)). The Cook County Clerk prices a TODI revocation as a miscellaneous document, $107.

A sale or gift during life does not revoke the TODI, but leaves nothing for it to transfer; so does a later deed into a revocable trust, which is why anyone who moves a home into a trust should revoke the TODI or name the trustee as beneficiary.

5. What happens after death

At death the property passes to the beneficiary under the instrument, subject to the beneficiary's right to disclaim (755 ILCS 27/65 and 27/80). The beneficiary takes subject to every mortgage, lien, lease, option and contract that bound the property at the owner's death (27/65(b)), and without any warranty of title (27/65(c)). The beneficiary inherits the mortgage with the house; federal law (12 U.S.C. 1701j-3(d)) bars the lender from calling the loan because of a transfer to a relative on the borrower's death, but the payments must continue. If a sole beneficiary dies before the owner, the property passes to the owner's estate and through probate after all, unless that beneficiary was a descendant of the owner, whose own descendants then take per stirpes (27/65(a)(3) and (5)); naming a contingent beneficiary avoids the first result.

Three post-death rules surprise families. A TODI beneficiary is liable for the deceased owner's creditor, funeral and statutory claims to the same extent as the beneficiary of a revocable trust (27/85), so avoiding probate does not avoid the debts. A surviving spouse who is not the beneficiary may renounce the TODI within seven months of death and take one-third of the property if there are descendants or one-half if there are none, unless the spouse waived that right (27/66). And an action to set aside a TODI must be filed within the earlier of two years after death or six months after letters of office issue in a probate estate (27/90).

The beneficiary confirms title by recording a notice of death affidavit under section 75 (its contents are in the FAQ below). The affidavit is not a condition of the transfer, but no title company will insure a sale and no assessor will change the exemptions until it is of record; the Cook County Clerk records it as a miscellaneous document for $107. The beneficiary then applies for his or her own Homeowner Exemption. The TODI should also agree with the rest of the plan; our article on beneficiary designations in an Illinois estate plan explains how the pieces fit.

6. TODI, living trust, land trust or joint tenancy

The TODI (the transfer on death deed, as other states call it) wins when the home is the main asset, the beneficiaries are adults who get along, and the owner has a power of attorney for property to cover incapacity. The living trust wins when there are several assets, a beneficiary who is a minor or has special needs, a blended family, or a wish to control how and when the property is sold after death; see our trust attorney page. Joint tenancy with a child is almost never the right answer, for the reasons on our quitclaim deed guide.

7. Is there a lady bird deed in Illinois?

No. The enhanced life estate or lady bird deed used in Florida, Texas, Michigan and a few other states has no statutory basis in Illinois, and Illinois title companies do not insure it. The TODI delivers the same result under a statute written for it: retained control plus a transfer at death outside probate, with no transfer tax at recording because nothing is transferred until death. A conventional life estate deed is still valid in Illinois but shares the problems of joint tenancy: it is a gift, the remainder cannot be revoked without the child's consent, and the child's creditors can reach it.

8. The tax side: why the basis step-up is the point

A TODI is as much a tax decision as a legal one, and the same attorney makes both.

• The basis step-up is the point. Property that passes at death takes a basis equal to its date-of-death value (IRS Publication 551); property given during life keeps the owner's basis. For a home bought decades ago, that difference can be worth more in capital gains tax than the house cost, so we run the numbers for a gift now, a TODI and a trust before recommending one.
• Estate inclusion and the rest of the plan. A TODI keeps the property in the owner's estate, which is what produces the step-up; for larger estates we check that the home, retirement accounts and life insurance together stay inside the Illinois and federal exclusions, and that the TODI beneficiary matches the will and the trust.
• One privileged engagement. The legal drafting and the tax analysis are done by the same attorney inside the attorney-client relationship; see why one adviser for law and tax changes the advice.

9. Having the firm prepare or record it

If you want us to handle it, we confirm how title is held, then draft, witness, notarize and record the instrument. If a family member has died leaving a recorded TODI, we prepare and record the notice of death affidavit and handle the exemption applications. Related pages: our estate planning hub, the probate attorney page for property that was not covered, and the real estate hub.

Questions people ask

What is a transfer on death instrument (TODI) in Illinois?

A TODI is a recorded instrument under the Illinois Real Property Transfer on Death Instrument Act (755 ILCS 27) by which an owner names one or more beneficiaries to receive real property at the owner's death. It is signed like a deed, witnessed like a will, notarized, and recorded with the county where the property is located before the owner dies. During the owner's life it transfers nothing and changes nothing; at death the property passes to the beneficiary outside probate. Other states call the same device a transfer on death deed or beneficiary deed.

TODI, living trust or joint tenancy: which one should I use to avoid probate?

All three avoid probate for the property they cover. A TODI is the cheapest and simplest when the home is the main asset and the beneficiaries are clear. A revocable living trust covers every asset you put in it, provides for incapacity, and lets a trustee manage the property for a minor or a beneficiary with special needs. Joint tenancy with a child avoids probate but is a gift now, loses half the basis step-up, exposes the home to the child's creditors, and requires the child's signature to sell. The comparison table on this page sets out the trade-offs.

How do I file a transfer on death instrument in Illinois?

The instrument must contain the elements of a recordable deed, state that the transfer occurs at the owner's death, be signed by the owner before two credible witnesses and a notary public, and be recorded before the owner's death with the recorder of the county where the property is located (755 ILCS 27/40 and 27/45). In Cook County the Clerk's Recordings Division records a TODI for $59. An unrecorded TODI, or one with only one witness, is void.

Can a TODI be revoked or changed?

Yes. A TODI is revocable even if it says otherwise (755 ILCS 27/25). It can be revoked or changed only by a later TODI or a recorded instrument of revocation that is signed, witnessed and notarized the same way and recorded before death (755 ILCS 27/55). Tearing up the original, writing a revocation that is never recorded, or changing your will does not revoke it. Selling the property during life makes the TODI moot as to that property; if a sale contract is still open at death, the beneficiary takes subject to the contract.

Does a TODI affect my mortgage, homeowner exemption or senior freeze?

During your life, no. The Act says a TODI does not affect the owner's right to sell or mortgage the property, creates no interest in the beneficiary, and does not affect eligibility for public assistance (755 ILCS 27/60). Your exemptions continue because you remain the owner-occupant. At death the beneficiary takes subject to the mortgage; a transfer to a relative on the borrower's death is protected from the due-on-sale clause under federal law, but the loan still has to be paid. The beneficiary then applies for his or her own Homeowner or Senior Exemption.

What must the beneficiary record after the owner's death?

The beneficiary records a notice of death affidavit with the county recorder giving each beneficiary's name and address, the legal description, address and parcel number, the TODI's date and document number, the owner's name and date and place of death, and the address for future tax bills, sworn before a notary (755 ILCS 27/75). Since the 2022 amendments the affidavit is not a condition of the transfer, but in practice the title company, the Assessor and the Treasurer will all want it on record, and the Cook County Clerk prices a TODI acceptance as a miscellaneous document at $107.

General information as of October 5, 2026; not legal advice; laws change; consult a lawyer about your situation.