Transfer on Death Deed in Illinois: How to Record a TODI and Keep Real Estate Out of Probate

Real estate is the single most common reason an Illinois estate ends up in probate court. Bank accounts have payable-on-death designations, retirement accounts have beneficiaries, and life insurance pays directly to a named person — but a house or condo held in the owner's name alone has no automatic transfer mechanism unless the owner sets one up in advance.

The Illinois Transfer on Death Instrument (TODI), governed by 755 ILCS 27/, solves this by letting a property owner name a beneficiary who automatically receives the real estate at death. No probate, no court filing, no attorney administration.

But there is one rule that voids the entire transfer if missed: the TODI must be recorded before the owner dies.

How a TODI Works

The owner (grantor) signs a TODI naming one or more beneficiaries for a specific piece of residential real property. The beneficiary has no rights during the owner's lifetime — the owner can sell the property, refinance it, or revoke the TODI at any time without the beneficiary's consent.

At the owner's death, the beneficiary records a death certificate and an acceptance affidavit with the county recorder, and the property transfers automatically.

Execution Requirements

An Illinois TODI must meet these formalities:

1. Signed by the owner (or by another person at the owner's direction and in their conscious presence)
2. Witnessed by two disinterested witnesses — each must sign in the owner's presence. A beneficiary named in the TODI is disqualified as a witness.
3. Acknowledged before a notary public — the notary must be a separate person from the witnesses
4. Recorded with the county recorder of deeds in the county where the property is located — this must happen before the owner's death

The recording step is not optional. Under 755 ILCS 27/40, a TODI that is signed, witnessed, and notarized but not recorded before death is legally void. The property falls into probate as if no TODI existed.

How to Record

Recording is straightforward but each county has its own fees and procedures:

1. Locate the property's Property Index Number (PIN) — found on the property tax bill or the county assessor's website
2. Prepare the TODI with the correct legal description matching the deed on file
3. Bring the original signed, witnessed, and notarized TODI to the county recorder's office
4. Pay the recording fee (typically $40 to $80 depending on the county and page count)

Cook County, DuPage County, and many other Illinois counties accept in-person recording. Some counties also accept mail submissions with a check for the recording fee.

Revocation

An owner can revoke a TODI at any time by recording a revocation instrument with the same county recorder. Selling the property or refinancing it does not automatically revoke the TODI — the recorded instrument remains on title unless a formal revocation is filed.

If the owner creates a new TODI for the same property and records it, the new instrument supersedes the old one.

The Spousal Renunciation Risk

A TODI does not defeat a surviving spouse's statutory rights. Under 755 ILCS 27/66, the surviving spouse can file a written renunciation with the county recorder within seven months of the owner's death. If filed, the spouse claims a one-third interest in the property (if descendants exist) or a one-half interest (if no descendants exist).

This matters most in blended families where an owner names children from a prior marriage as TODI beneficiaries. Without a spousal waiver, the current spouse can override part of the transfer.

When a TODI Is Not Enough

A TODI only covers the specific property named in the instrument. It does not address bank accounts, retirement funds, vehicles, or personal property. And it does not provide incapacity planning — if the owner becomes unable to manage their affairs, the TODI beneficiary has no authority to act.

A complete estate plan pairs the TODI with a will (for everything not covered by beneficiary designations), powers of attorney for property and health care, and a living will.

The Illinois Basic Estate Planning Kit includes TODI recording instructions with county-specific guidance, a revocation checklist, and coordination worksheets that ensure every asset has a clear transfer path.

See more Illinois guides →