Estate · Transfer-on-Death Deed
Transfer-on-Death Deed in Illinois
Whether Illinois lets you pass a home with a transfer-on-death deed, the formalities that make it valid, the Medicaid and creditor exceptions, and the workaround if it is not allowed. Cited to the statute or the controlling practice.
The rules and exceptions in Illinois
What makes the deed valid here, when it does not work, and the Medicaid and creditor details that matter.
| The rule in this state | What it means |
|---|---|
| Signed, witnessed, and notarized | A transfer-on-death instrument must meet the formalities of a recordable deed and of a will: signed by the owner, witnessed by at least two credible witnesses, and notarized. Illinois is stricter than most on this. |
| Recorded before death | The instrument must be recorded before the owner’s death in the county recorder’s office where the property is located, or it is not effective. |
| States transfer at death | The instrument must state that the transfer to the beneficiary occurs at the owner’s death. |
| All real property (since 2022) | Originally limited to residential property, the Act was expanded effective January 1, 2022 to cover all real property, and renamed the Real Property Transfer on Death Instrument Act. |
| Key details and exceptions | What it means |
|---|---|
| Fully revocable, but not by will | The owner may revoke by a recorded revocation or a later instrument before death. A transfer-on-death instrument cannot be revoked by will. |
| Claim and contest window | Illinois lets creditors and heirs reach the property or contest the instrument for a period after death, commonly reported as up to two years. Beneficiaries take subject to the owner’s debts. |
| Medicaid estate recovery | Property passing by this instrument can still be subject to Illinois Medicaid estate recovery, which can reach non-probate transfers. It is not an automatic shield. |
| Older non-residential deeds | An instrument executed for non-residential property before the 2022 expansion may be invalid, because the scope change is not retroactive to earlier deaths. |
What you can do right now
Concrete, neutral steps to pass a home outside probate in Illinois. This is legal information, not legal advice.
- Get two witnesses and a notary
Unlike most states, Illinois layers will formalities on a transfer-on-death instrument. Have the owner sign before at least two witnesses and a notary, or it fails.
- Record it before death
File the instrument with the county recorder before the owner dies. An unrecorded transfer-on-death instrument is not effective.
- Use the current all-property scope
Since January 1, 2022 the Act covers all real property, not just residential. Do not rely on an older form that limits it to homes.
- Talk to an Illinois estate attorney about recovery
This instrument does not automatically shield the property from Medicaid recovery. A licensed Illinois estate attorney can compare it to a trust. The State Bar can refer you to one.
A deed that misses a witnessing or recording rule can be void, and Medicaid recovery can undo the plan. This resource can connect you with a licensed estate attorney.
→ Illinois State Bar — Illinois Lawyer FinderThis is general legal information, not legal advice. Witnessing rules, recording deadlines, Medicaid recovery, and spousal rights can change the answer, so confirm your plan with a licensed attorney.
What people get wrong about Illinois TOD deeds
Illinois allows a transfer-on-death instrument to pass real estate without probate, but it is stricter about formalities than most states. Where a typical transfer-on-death deed just needs notarization, Illinois requires the formalities of a will on top of those of a deed: the owner must sign before at least two credible witnesses and a notary. Miss the witnesses and the instrument is void, which is the most common drafting error. As everywhere, it must be recorded before the owner dies, and it cannot be revoked by will, only by a recorded revocation or a later instrument. One point people get wrong is scope. The Act used to cover only residential property, but effective January 1, 2022 it was expanded to all real property and renamed, so older residential-only forms are out of date for deaths on or after that date. The instrument does not automatically defeat Medicaid estate recovery, so weigh it against a trust if that is a concern.
Common questions
Can I use a transfer-on-death deed in Illinois?
Yes. Illinois allows a transfer-on-death instrument under 755 ILCS 27. It must meet will formalities, signed before at least two witnesses and a notary, be recorded before death, and state that the transfer happens at death.
Does an Illinois TODI need witnesses?
Yes. Illinois is unusual in requiring will-style formalities, so at least two credible witnesses plus a notary are needed. A notarized-but-unwitnessed instrument is void.
Can an Illinois TODI cover commercial property?
Now, yes. The Act was expanded effective January 1, 2022 to cover all real property, not just residential. For deaths before that date, only residential property qualified.
Can I revoke an Illinois transfer-on-death instrument by will?
No. You can revoke it with a recorded revocation or a later instrument during life, but not by will. A will provision cannot undo a recorded transfer-on-death instrument.
Not legal advicePlainStatute provides plain-language summaries of public law for general information only. This is not legal advice. Statutes change; always confirm current requirements with the official source linked above before acting.