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Title Tag: Illinois Transfer on Death Instrument (TODI) 2026: Complete Guide - ProbatePedia
Meta Description: The Illinois Transfer on Death Instrument (TODI) lets homeowners pass real property to named beneficiaries at death without probate — similar to California's TOD Deed. Valid since 2012 under 755 ILCS 27/. Learn requirements, how to create and revoke a TODI, and when to choose a living trust instead.
Illinois Transfer on Death Instrument (TODI): Complete Guide (2026)
Last Updated: March 2026 • 755 ILCS 27/ (RPTODIA)• IL Series — Article 4 of 8
Illinois's Transfer on Death Instrument (TODI) — authorized by the Residential Real Property Transfer on Death Instrument Act (755 ILCS 27/) since 2012 — is a deed-like document that transfers real property to named beneficiaries at the owner's death without probate. Unlike a regular deed, the TODI does not transfer ownership while you're alive — you retain full rights during your lifetime including the right to sell or encumber the property. Requirements: written instrument; signed by owner(s) in the presence of two witnesses AND acknowledged before a notary public; recorded with the Recorder of Deeds BEFORE the owner's death. The TODI is fully revocable at any time during the owner's lifetime.
| TODI — Key Facts | | | --- | --- | | Governing statute | 755 ILCS 27/ (Residential Real Property Transfer on Death Instrument Act) | | Effective date | January 1, 2012 | | Property types covered | Residential real property in Illinois; commercial real property is generally excluded from the Act (see section below) | | Execution requirements | (1) Written document; (2) Signed by ALL owners of the property; (3) In the presence of 2 witnesses; (4) Acknowledged before a notary public | | Recording requirement | Must be recorded with the county Recorder of Deeds BEFORE the owner's death; a TODI not recorded before death has no legal effect | | Revocable? | Yes — fully revocable during owner's lifetime by recording a Revocation of TODI or a new deed | | Effect during owner's lifetime | None — owner retains complete ownership, can sell, mortgage, rent, or revoke; the TODI creates no present interest in the beneficiary | | Effect at death | Property transfers automatically to the named beneficiary(ies); no probate required; beneficiary must record the owner's death certificate | | Cost | Recording: Cook County ~$98 first page + $3/additional; downstate varies. Drafting: typically $300–$800 attorney fee | | Illinois Real Estate Transfer Tax | No documentary transfer tax (IL RETT) on transfer to own revocable trust; ⚠ editor verify TODI treatment — may vary |
How to Create a Valid TODI
| ContentDetails and Common Mistakes** | | --- | --- | | Written document | Must be a written instrument in the form of a deed naming the beneficiary(ies) | | ALL owners must sign | If the property is owned jointly (joint tenancy, tenancy in common), ALL owners must sign the TODI; a TODI signed by only one joint owner is invalid — common mistake | | Two witnesses | Must be signed in the presence of two adult witnesses who are not beneficiaries of the TODI; witnesses must also sign; a TODI without two witnesses is invalid | | Notarization | Must be acknowledged before a notary public; a TODI that is witnessed but not notarized is invalid | | Recorded BEFORE death | The TODI must be recorded with the county Recorder of Deeds while the owner is alive; recording after death does not validate the TODI — the most critical execution requirement | | Beneficiary named | Name primary beneficiary AND contingent beneficiary; if primary predeceases and no contingent is named, the property falls into the probate estate | | Legal description | Must include the correct legal description of the property (from the deed or from the county records) |
The TODI Must Be Recorded BEFORE Death — No Exceptions:
The single most common TODI failure is non-recording or late recording. A TODI that is properly drafted and executed but never recorded, or recorded after the owner's death, has absolutely no legal effect under 755 ILCS 27/. The property must go through probate. Always record the TODI immediately after execution — not 'eventually.' Keep a copy of the recorded TODI and confirm with the county Recorder that it appears in the public record.
Revoking or Changing a TODI
| ContentHow It Works** | | --- | --- | | Record a Revocation of TODI | Execute a written Revocation of TODI document and record it with the county Recorder of Deeds; the TODI is revoked as of the date of recording the revocation | | Record a new deed | Recording a deed that transfers the property to a new owner (including yourself as Trustee of a trust) during your lifetime effectively supersedes the TODI for that property | | Record a new TODI | A new TODI that supersedes the old one; must meet all execution and recording requirements | | What does NOT revoke a TODI | A will provision attempting to revoke or modify the TODI; a contract or other writing not recorded as required; a verbal statement; the owner's marriage or divorce (though divorce may affect the beneficiary's rights — confirm with attorney) |
TODI vs. Revocable Living Trust — When to Choose Each
| ContentTODIContentRevocable Living Trust** | | --- | --- | --- | | Covers all assets | No — real property only | Yes — all types of assets | | Incapacity protection | No | Yes — Successor Trustee acts immediately | | Multiple properties | Separate TODI required for each | All properties in one trust | | Privacy | Recorded publicly (beneficiary named) | Trust is entirely private | | Out-of-state property | Illinois TODI has no effect on out-of-state real property | Trust can include all property; ancillary trust provisions for out-of-state | | Minor beneficiary | Issues — minor cannot receive property directly; court guardianship may be required | Trust can hold property for minor with trustee management and age-appropriate distribution | | Successor beneficiary planning | Contingent beneficiary named; limited flexibility | Full control over distribution terms and conditions | | Cost | Lower: $300–$800 attorney + recording fees | Higher: $1,500–$4,000+ attorney; ongoing maintenance | | Best choice when: | Single IL property; healthy owner; simple beneficiary situation; limited budget | Multiple properties; incapacity concern; complex family; blended family; estate tax planning needed |
TODI and Married Couples
For married Illinois homeowners, the TODI presents some specific considerations:
- Both spouses must sign the TODI if the property is in both names (joint tenancy or tenancy by the entirety)
- A TODI from one spouse that names a non-spouse beneficiary may conflict with the surviving spouse's elective share rights (755 ILCS 5/3A-1 et seq.) — attorney review recommended
- For estate tax planning: a TODI directly to children (bypassing the surviving spouse) does not qualify for the unlimited marital deduction; may trigger Illinois estate tax at the first spouse's death if the estate exceeds $4M. A properly structured trust with AB trust provisions is generally preferable for married couples with larger estates — see IL-6
TODI to Children While Spouse Is Living — A Tax Trap:
If a married couple's combined estate exceeds $4 million (Illinois estate tax threshold) and one spouse dies leaving their share directly to children via TODI (bypassing the surviving spouse), Illinois estate tax may be due at the first death. A revocable living trust with an AB trust (Credit Shelter Trust) provision can defer Illinois estate tax at the first death by placing assets into a Credit Shelter Trust — preserving both spouses' $4M exemptions without requiring an outright transfer to the surviving spouse.
✅ Verified Legal Data — March 2026
• 755 ILCS 27/ — Residential Real Property Transfer on Death Instrument Act; effective January 1, 2012 — confirmed
• Two witnesses + notary required for valid TODI — confirmed (755 ILCS 27/35)
• Must be recorded BEFORE death or has no legal effect — confirmed (755 ILCS 27/45)
• All co-owners must sign — confirmed
• TODI fully revocable during owner's lifetime — confirmed (755 ILCS 27/65)
• No present interest created in beneficiary during owner's lifetime — confirmed
• Cook County Recorder fees: ⚠ editor verify current fee schedule
• TODI limited to residential real property under the Act — ⚠ editor verify commercial property treatment
• IL elective share rights (755 ILCS 5/3A-1): ⚠ editor verify interaction with TODI transfer
Series Navigation:
IL-1 → How to Avoid Probate in Illinois
IL-2 → Illinois Probate Process — Circuit Court
IL-3 → Illinois Small Estate Affidavit ($100,000)
IL-4 → Illinois Transfer on Death Instrument (TODI)
IL-5 → Illinois Revocable Living Trust
IL-6 → Illinois Estate Tax — The $4M Cliff No One Talks About
IL-7 → Illinois Probate Fees & Executor Compensation
IL-8 → Illinois Living Trust vs. Will
probatepedia.com · /illinois/avoid-probate/transfer-on-death-instrument/ · IL-4 of 8 · v1.0 March 2026