Illinois Transfer-on-Death Deed

At a glance

How the deed works

Illinois authorizes a transfer on death instrument (TODI) under the Real Property Transfer on Death Instrument Act, 755 ILCS 27. The Act was originally limited to residential real estate, but effective January 1, 2022 (Public Act 102-0068) it was broadened and the short title changed so that a TODI may now be used for any real property located in Illinois, not just residential (755 ILCS 27/1, 27/10).

Under 755 ILCS 27/40 and 27/45, a TODI must contain the essential elements of a recordable deed, state that the transfer to the designated beneficiary occurs at the owner's death, be signed by the owner, be attested by at least two credible witnesses, and be acknowledged before a notary public — and it must be recorded before the owner's death in the county where the real estate is located. The owner must have the same mental capacity required to make a will (27/35). An agent under a power of attorney cannot create a TODI.

The beneficiary's signature, consent, or notice is not required during the owner's life, and the beneficiary has no interest until the owner's death (755 ILCS 27/65), taking subject to existing encumbrances. Because Illinois requires both two witnesses and notarization — a stricter execution formality than many states — a TODI should be prepared with an attorney.

Recording & execution requirements

A transfer-on-death deed only works if it is executed and recorded correctly. In Illinois:

• Recording before death: Must be recorded before the owner's death.
• Governing statute: 755 ILCS 27 755 ILCS 27 — Real Property Transfer on Death Instrument Act · expanded to all real property eff. Jan. 1, 2022 (P.A. 102-0068).

Changing or revoking the deed

A TODI is revocable during the owner's life. Under 755 ILCS 27/55, it may be revoked only by a recorded instrument — either a later transfer on death instrument or a written instrument of revocation — that is executed with the same formalities and recorded before the owner's death.

Critically, a TODI cannot be revoked by an unrecorded act or document, and it cannot be revoked by will. If the owner wants to change the beneficiary, the new or revoking instrument must be properly executed and recorded during life.

Mortgages, Medicaid & community property

Existing mortgages and liens

A beneficiary who receives Illinois real property through a TODI takes it subject to all mortgages, liens, and other encumbrances existing at the owner's death (755 ILCS 27/65). The instrument passes the owner's interest as-is and does not extinguish secured debts.

Medicaid estate recovery

An Illinois TODI leaves the owner as full owner during life, so creating one is generally not a disqualifying transfer, but Medicaid estate recovery after death is a real, fact-specific concern. Confirm any plan with the Illinois Department of Healthcare and Family Services (which administers Medicaid) and an attorney or elder-law professional licensed in Illinois; this record does not assert a specific post-death recovery scope.

Community property

Illinois is a common-law (separate-property) state. Illinois is a common-law (non-community-property) state, so there is no community-property survivorship feature to coordinate. For married owners the main interaction is with survivorship forms of ownership (joint tenancy or tenancy by the entirety on homestead): a surviving co-owner's interest generally passes ahead of a TODI beneficiary, so title form and the TODI should be reviewed together.

State-specific quirks

Where to read next

• Illinois estate & inheritance tax — whether Illinois taxes what you leave behind, and the small-estate probate ceiling, each figure cited to the statute.
• The Executor & Heir’s Guide — the probate deadlines for Illinois, cited to the controlling statute.
• Funding a revocable trust — a common way to keep many kinds of property out of probate.
• ← Back to the transfer-on-death deed comparison

Sources & methodology