If you own real estate in Illinois and you want it to pass to someone when you die without going through probate, a transfer on death instrument is one of the simplest and most cost effective tools available. It’s sometimes called a TODI or a TOD deed, and it lets you name a beneficiary who automatically receives the property at the moment of your death.
No probate court. No trust required. No transfer of ownership during your lifetime. You keep full control of the property for as long as you’re alive, and when you die, the property passes directly to the person you named. A Wilmette, IL estate administration lawyer can help you prepare and record the document properly so it works exactly as intended.
It’s not the right tool for every situation. But when it fits, it’s hard to beat for simplicity and affordability.
How a TODI Works Under Illinois Law
The Illinois Residential Real Property Transfer on Death Instrument Act (755 ILCS 27) allows property owners to sign an instrument that names one or more beneficiaries for a specific piece of real property. You sign the TODI, have it notarized, and then record it with the county recorder’s office in the county where the property is located. That’s the entire process on your end.
Once recorded, the TODI is effective but dormant. The beneficiary has absolutely no ownership rights while you’re alive. They cannot sell the property, borrow against it, move into it, or interfere with your use of it in any way. They don’t even need to know the TODI exists. You can change your mind, sell the house, refinance it, or revoke the TODI at any time without notifying anyone.
When you die, the beneficiary files an affidavit with the county recorder along with a certified copy of your death certificate. That’s it. The property transfers to them by operation of law. No probate petition, no court appearance, no waiting months for a judge to approve a distribution, and no attorney fees for a probate case.
It’s one of the cleanest mechanisms in Illinois law for transferring a single piece of real estate outside of a trust.
Requirements for a Valid TODI
The TODI has to meet specific statutory requirements to be legally effective. Missing any of them can invalidate the entire instrument, which means the property ends up in probate court anyway, which is exactly what you were trying to avoid. Here is what the law requires:
Statutory language
The Act prescribes specific form language that must appear in the instrument. You cannot use a generic deed template, a quitclaim deed with “TOD” written on it, or a form you found on a legal website from another state. Illinois has its own required format, and deviating from it creates problems. The recorder’s office may reject a nonconforming instrument, or worse, it may get recorded but later be challenged as invalid after your death.
Signed by the owner
If the property is owned by one person, that person signs. If it’s owned jointly by a married couple or by multiple co owners, all owners need to sign the same instrument. A TODI signed by only one co owner does not transfer the other co owner’s interest in the property.
Notarized
The signature must be acknowledged before a notary public, just like any other recorded real estate document in Illinois. This is a standard requirement and most attorneys, banks, and shipping stores can handle it.
Recorded before the owner dies
This is the critical requirement that people miss most often. A TODI that is signed and notarized but sitting in a drawer, unrecorded, does absolutely nothing. Recording with the county recorder’s office is what gives the instrument legal effect. If you sign a TODI on Monday and die on Tuesday without recording it, your family cannot record it after your death. The property goes through probate as if the TODI never existed.
Residential real property only
The statute is limited to real property that contains one to four residential dwelling units. This covers most single family homes, condominiums, duplexes, three flats, and small apartment buildings. It does not cover commercial property, vacant land, agricultural land, or industrial property. If you own property that doesn’t qualify under the Act, you’ll need a trust or another mechanism to avoid probate on that asset.
When a TODI Makes Sense
A transfer on death instrument is a good fit in several common scenarios. Understanding when it works well helps you decide whether it’s the right tool for your situation or whether something more comprehensive is needed.
You own one home and want to keep it simple
If you have a single family residence and you want it to go to your children or another specific person when you die, a TODI accomplishes that without the cost and complexity of creating and funding a revocable living trust. The recording fee is minimal and the document itself is straightforward. For a lot of families this is all they need for the real estate piece of their plan.
Your estate is under the small estate affidavit threshold
Illinois recently raised the small estate affidavit limit to $150,000 in personal property and excluded vehicles from the calculation. If the rest of your assets (bank accounts, personal property, vehicles) fall under that threshold, combining a TODI for the house with a small estate affidavit for everything else could let your family avoid probate entirely. That’s a clean, low cost estate plan for families with modest assets, and it’s more accessible now than it used to be.
You want to avoid probate but you’re not ready for a full trust yet
Some people know they need to do something about their estate plan but aren’t ready for the process of setting up a trust and retitling all of their assets into it. A TODI is a good intermediate step. It handles the real estate piece, which is often the most valuable single asset and the one most likely to trigger a full probate proceeding, without requiring you to set up an entire trust structure right now. You can always add a trust later.
You want a backup in a broader estate plan
Even families with trusts sometimes use a TODI as a safety net. If the house was never properly deeded into the trust during the owner’s lifetime (which happens more often than you might think), a recorded TODI provides a fallback that keeps the property out of probate regardless. It’s a belt and suspenders approach, and it costs almost nothing to set up.
When a TODI Might Not Be Enough
A TODI is a single purpose tool. It transfers one piece of property to one or more named beneficiaries at death. That’s all it does. It doesn’t address contingencies, it doesn’t provide for lifetime management, and it doesn’t coordinate with the rest of your plan the way a trust does.
There are situations where relying on a TODI alone creates more problems than it solves:
Blended families
If you have children from a prior marriage and a current spouse, the question of who gets the house can be complicated. A TODI gives the property outright to the named beneficiary with no conditions. It doesn’t allow for arrangements like “my spouse can live in the house for as long as she needs to, and then when she moves or passes away, the house goes to my kids from my first marriage.” A trust can handle that kind of layered planning. A TODI simply cannot.
Estates near the Illinois estate tax threshold
If your total estate is approaching $4 million, you need tax planning, not just probate avoidance. A TODI keeps the house out of probate but does nothing to reduce your estate’s value for tax purposes. The house is still included in your gross estate for Illinois estate tax calculations. A properly structured trust with tax planning provisions can help manage that exposure.
Multiple properties
If you own two or three properties in Illinois, each one needs its own separate TODI, and coordinating multiple instruments gets cumbersome. A single revocable living trust can hold all of your real estate and manage distribution instructions for each property in one organized document.
Incapacity planning
A TODI only operates at death. If you become incapacitated and someone needs to manage, sell, or refinance the property on your behalf, a TODI provides no mechanism for that. It just sits there waiting for you to die. A trust with a successor trustee provision, on the other hand, allows a trusted person to step in and manage the property during your lifetime if you’re unable to do it yourself.
Can You Revoke a TODI?
Yes. You can revoke a TODI at any time during your lifetime by recording a revocation instrument with the same county recorder’s office where the original TODI was recorded. You can also effectively revoke it by recording a new TODI that supersedes the old one and names a different beneficiary.
Selling the property eliminates the TODI because you no longer own the property it relates to. But if you refinance the property and keep ownership, the TODI stays in place. A new mortgage does not revoke a TODI. This is a common misconception.
One important point that trips people up: a will does not revoke a TODI. If your TODI names Person A as the beneficiary and your will says “I leave my house to Person B,” Person A gets the house. The TODI controls because it operates entirely outside the probate process. Your will only governs assets that pass through probate, and the whole point of a TODI is to keep the property out of probate altogether.
If you want to change who receives the property, you need to either revoke the existing TODI and record a new one with the updated beneficiary, or revoke it entirely and let the property pass under your will or trust instead.
Common Mistakes to Avoid
Forgetting to record
This is the number one mistake with TODIs. A signed, notarized instrument that was never delivered to the county recorder’s office is legally meaningless. Make sure it gets recorded and that you receive confirmation from the recorder’s office that it was accepted and filed.
Using a form from another state
Illinois has specific statutory requirements for the language in a TODI. Forms from legal websites that aren’t designed for Illinois law may not contain the required language. They could be rejected by the recorder, or they could be recorded but later challenged successfully after your death. Use the Illinois statutory form or have an attorney prepare the instrument.
Not updating after a life change
If you get divorced, remarried, or if your named beneficiary dies before you do, the TODI needs to be updated. An outdated TODI can create legal headaches for your family at the worst possible time.
Assuming a TODI replaces a will
A TODI handles one piece of property. You still need a will for everything else in your estate, and you still need powers of attorney for incapacity planning. A TODI is one tool in the toolbox, not the whole toolbox.
The Bottom Line
A transfer on death instrument is a practical, affordable way to keep your home out of probate in Illinois. It’s not a substitute for a comprehensive estate plan, but it solves a real problem for a lot of families, especially those with straightforward situations and modest estates. If you’re not sure whether a TODI, a trust, or some combination of the two is the right approach for your family, it’s worth sitting down with an estate planning attorney who can look at the full picture and help you decide.
Kravets Law Group can help you evaluate your options and create a plan that fits your goals, your assets, and your family’s needs.
The full text of the Illinois Residential Real Property Transfer on Death Instrument Act is available through the Illinois General Assembly’s website at ilga.gov.