Illinois: Transfer-on-Death Deed Requirements

Illinois lets you keep your home out of probate and pass it to someone you name, but it
calls the document a transfer on death instrument (a "TODI"), not a deed, and it demands
the same signing formality as a will. You record the instrument now, keep full control of
the property for life, and at your death the home passes to the person you named with no
probate case. Get the witnessing wrong and, unlike an ordinary deed, the whole thing is
void. Illinois broadened the tool on January 1, 2022: originally limited to homes, it
now works for any Illinois real property, and the same 2022 overhaul added the
two-witness rule and a surviving-spouse renunciation right described below.

How to sign it

Illinois's execution rules are stricter than most transfer-on-death states'. Under
755 ILCS 27/45, every TODI "shall be signed by the owner ... and shall be attested in
writing by 2 or more credible witnesses, and the signatures of the witnesses along with the
owner's signature shall be acknowledged in front of a notary public." Three things must all
happen:

• you sign the instrument (you are the "owner"; the person who will inherit — the
  "designated beneficiary" — never signs);
• two or more credible witnesses attest in writing that you signed it freely and appeared
  to be of sound mind; and
• a notary acknowledges your signature and the witnesses' signatures.

Skip the witnesses and § 45(b) says the instrument "is not executed in substantial compliance
with subsection (a) and is void." Two other rules bite here: the capacity to make a TODI is
"the same as the capacity required to make a will," and an agent under a power of attorney
cannot make or revoke one for you (755 ILCS 27/35). And never use a beneficiary as one
of your witnesses — under § 45(c), a beneficiary (or their spouse) who witnesses the
instrument loses the gift to the extent it exceeds what they would have taken anyway.

Recording requirement

Signing and notarizing the TODI does nothing by itself. Under 755 ILCS 27/40, the
instrument "must be recorded before the owner's death in the public records in the office of
the recorder of the county or counties in which any part of the real property is located,"
and "failure to comply with any of the requirements ... will render the transfer on death
instrument void." Two points:

• Record before death. A TODI signed, witnessed, and notarized but left unrecorded — or
  recorded only after you die — transfers nothing; the property passes by your will or by
  intestacy instead.
• No fixed outer deadline. Illinois sets no signing-to-recording clock (California's
  60-day rule is unusual). Record it in every county where the land sits, while you are alive.

Revoking it or changing your mind

A TODI is revocable at any time before death, but Illinois is strict about how. Under
755 ILCS 27/55, you can revoke only with a recorded instrument — either a later TODI
or an express instrument of revocation — that is "executed, witnessed, and acknowledged in
the same manner as is required by Section 45" and "recorded before the owner's death." And
§ 55(b) is explicit that a TODI "may not be revoked by a revocatory act on the instrument, by
an unrecorded instrument, or by a provision in a will." So tearing up your copy, signing an
unrecorded revocation, or writing "I revoke my TODI" into your will all fail — the recorded
instrument stands until a new recorded instrument replaces it.

Which property and owners qualify

Since the 2022 overhaul, a TODI reaches any real property in Illinois — the Act was
renamed and now defines "real property" broadly (755 ILCS 27/5), where before it was
limited to one-to-four-unit homes, condos, and small farm parcels. The owner must be an
individual; the Act excludes a "trustee or an individual acting in a fiduciary,
representative, or agency capacity."

Co-ownership is the trap. Under 755 ILCS 27/70, one or more joint owners may sign a TODI,
but it "shall not sever a joint tenancy or tenancy by the entirety," and the property is
"governed by the designation of the joint owner who is the last to die." If you own with
someone in joint tenancy and die first, survivorship controls and your TODI does nothing;
your beneficiary takes only if you outlive the other owners and your instrument is still the
operative one.

If your beneficiary dies first, and what passes

Under 755 ILCS 27/65, a beneficiary must survive you. Name two or more beneficiaries
and "the interests are taken in equal and undivided shares with no right of survivorship"
— they hold as tenants in common. If a beneficiary dies before you:

• with several beneficiaries, a lapsed share passes to the surviving beneficiaries in
  proportion (§ 65(a)(4));
• with a single beneficiary who predeceases you, the property "shall pass to the owner's
  estate" — into the probate the TODI was meant to avoid; but
• Illinois has an anti-lapse rule: if the predeceasing beneficiary is your descendant,
  that person's own descendants "shall take ... per stirpes" (§ 65(a)(5)).

Whoever inherits takes the home "subject to all conveyances, encumbrances, ... mortgages,
liens, and other interests" of record at your death, and "without covenant or warranty of
title." The mortgage rides along with the house.

Creditor and Medicaid reach

The TODI avoids probate; it does not put the home beyond your debts. During your life,
755 ILCS 27/60 says the instrument does not affect any "creditor or future creditor of
the owner," does not "create a legal or equitable interest in favor of the designated
beneficiary," and does not affect "the owner's or designated beneficiary's eligibility for
any form of public assistance." You keep full power to sell, mortgage, or lose the property
to your own creditors.

After you die, 755 ILCS 27/85 makes the beneficiary "subject to creditor,
administrative, funeral and burial, and statutory claims to the same extent and in the same
manner as a beneficiary of a trust that was revocable" at the owner's death — so the home can
be reached for your debts (apportioned among multiple properties by net value). A surviving
spouse has a distinct power: under 755 ILCS 27/66, unless waived, the spouse may
renounce the TODI and take "a one-third interest ... if the owner leaves a descendant or a
one-half interest ... if the owner leaves no descendant," by filing a renunciation with the
recorder "within 7 months after the date of the owner's death."

On Medicaid estate recovery, Illinois is narrower than states with an "expanded estate"
rule. Under 305 ILCS 5/5-13, the State recovers from the decedent's "estate ... as that
term is used in the Probate Act of 1975" — the probate estate — and only reaches
nonprobate transfers "through joint tenancy, tenancy in common, survivorship, life estate,
living trust, or other arrangement" in the narrow case of a long-term-care-insurance-
partnership policyholder. Because a TODI passes outside probate, it generally sits outside
ordinary Illinois estate recovery — but § 85's creditor liability can still expose the
property to the State's medical-assistance claim as a claim against the estate. Do not treat
a TODI as a Medicaid shield.

What trips people up

• It is signed like a will, not like a deed. A TODI needs your signature, two credible
  witnesses, and a notary (§ 45). An out-of-state "transfer on death deed" form with only a
  notary line is void in Illinois.
• Never let a beneficiary witness it. Under § 45(c), a beneficiary (or their spouse) who
  serves as a witness forfeits the gift beyond what they would otherwise have received.
• A will cannot revoke it. You revoke a recorded TODI only by recording a new TODI or a
  formal revocation, witnessed and notarized like the original (§ 55). A will provision, an
  unrecorded writing, or destroying the document does not work.
• A lawyer is supposed to draft it. Under 755 ILCS 27/95, a TODI "shall be prepared
  only by a licensed attorney" — though you may prepare your own, and a self-prepared
  instrument is not void just for lacking an attorney's hand.
• Joint tenancy beats the TODI. A TODI does not sever a joint tenancy; if you die before
  your co-owner, survivorship controls and your beneficiary takes nothing (§ 70).

Common questions

Does my beneficiary have to know or agree? No. A TODI is effective "without notice or
delivery to or acceptance by" the beneficiary, and needs no consideration (755 ILCS 27/50);
you can name, change, or revoke without telling them.

Can my spouse override the deed after I die? Yes, to a point. Unless your spouse waived
the right, they can renounce the TODI and claim a one-third or one-half forced share by
filing within seven months of your death (§ 66).

Does recording the instrument change who owns the house now? No. During your life the
TODI creates no interest in your beneficiary (§ 60); you remain the owner and can sell or
mortgage the property freely.

Will a TODI protect my home from a nursing-home Medicaid claim? Not reliably. Illinois
recovers against the probate estate, which a TODI bypasses, but § 85 still exposes the
property to your creditors and statutory claimants, so treat it as a probate-avoidance tool,
not asset protection.

Statutes and sources

• 755 ILCS 27/40 (requirements; recorded before death or void) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/45 (signing, two credible witnesses, notary; beneficiary-witness void) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/35 (will-level capacity; agent under a power of attorney cannot make one) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/55 (revocation only by a recorded instrument; not by a will) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/60 (no effect during life; owner's creditors; public-assistance eligibility) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/65 (survival, equal shares, anti-lapse per stirpes, subject to liens) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/66 (surviving-spouse renunciation; 1/3 or 1/2; 7-month deadline) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/70 (joint owners; does not sever joint tenancy; last owner controls) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/85 (beneficiary liable for owner's creditor and statutory claims) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 755 ILCS 27/95 (must be prepared by a licensed attorney; self-preparation allowed) — https://www.ilga.gov/Legislation/ILCS/Articles?ActID=3382&ChapterID=60&Print=True (accessed 2026-07-11)
• 305 ILCS 5/5-13 (Medicaid estate recovery; probate-estate definition) — https://www.ilga.gov/documents/legislation/ilcs/documents/030500050K5-13.htm (accessed 2026-07-11)