Transfer on Death Instruments (TODIs) in Illinois: An Alternative to Probate
For many Illinois families, a home is one of the most valuable assets they own. Naturally, one of the first questions that comes up during estate planning is:
What happens to my house when I die?
A will is one option, but Illinois law also provides property owners with another estate-planning tool: the Transfer on Death Instrument, commonly called a TODI.
When properly prepared and recorded, a TODI can allow real estate to pass to a designated beneficiary upon the owner’s death without requiring the property itself to pass through probate.
What Is a Transfer on Death Instrument?
A TODI is a recorded legal instrument in which an Illinois property owner designates one or more beneficiaries to receive real estate when the owner dies.
Unlike signing a deed that transfers property immediately, a TODI does not give the beneficiary a present ownership interest in the property.
During the owner’s lifetime, the owner generally remains free to sell, transfer, or mortgage the property. The designated beneficiary’s interest does not become effective until the owner’s death.
Why Do Illinois Property Owners Use TODIs?
One of the primary reasons is probate avoidance for real estate.
If property is owned solely in a person’s name when they die, some form of probate administration may otherwise be necessary to transfer title.
A properly executed and recorded TODI can provide a more direct path for transferring that property after death.
This can make a TODI particularly useful for someone whose estate is otherwise relatively straightforward but who owns real estate individually.
Does tHe Beneficiary Own tHe Property While You Are Alive?
No.
This is an important distinction.
Recording a TODI does not make the beneficiary a co-owner of the property during the owner’s lifetime. Illinois law specifically provides that the instrument does not create a legal or equitable interest for the designated beneficiary while the owner remains alive.
That means using a TODI is very different from simply adding a child, relative, or other beneficiary to your deed.
Can a Transfer on Death Instrument Be Changed?
Yes.
A TODI is revocable during the owner’s lifetime. However, changing your mind is not as simple as destroying your copy of the document or changing your will.
Illinois law contains specific requirements for properly revoking a recorded TODI, including execution and recording requirements.
This is one reason property owners should make sure their TODI remains consistent with their overall estate plan when circumstances change.
What Makes an Illinois TODI Valid?
Illinois law imposes formal requirements for creating a TODI.
Among other requirements, the instrument must contain the necessary elements of a recordable deed, state that the transfer occurs upon the owner’s death, be properly executed with two credible witnesses and notarization, and be recorded before the owner’s death in the county where the real estate is located.
Failure to satisfy the statutory requirements can prevent the instrument from transferring the property as intended.
Is a TODI tHe Same as a Will?
No.
A TODI is considered a non-testamentary instrument under Illinois law. In practical terms, it operates separately from the owner’s will with respect to the real estate covered by the TODI.
That is also why estate-planning documents should be coordinated rather than prepared independently of one another.
A will, trust, TODI, jointly owned property, and beneficiary-designated accounts can all affect how an estate ultimately passes.
Does a TODI Eliminate tHe Need for Estate Planning?
No—and this is where I would deliberately stop giving away the farm.
A TODI can be an extremely useful tool, but it is not automatically the best choice for every property owner.
Family structure, ownership of the property, mortgages and liens, creditor issues, beneficiary circumstances, and the remainder of the owner’s estate plan can all affect whether a TODI makes sense.
The goal should not simply be to avoid probate at all costs. The goal is to create an estate plan that transfers property in the manner the owner actually intends.
TODIs and Small Estates in Illinois
Real estate and personal property are treated differently when determining how an estate can be administered.
For example, Illinois’s Small Estate Affidavit procedure can sometimes allow qualifying personal property to be collected without opening a full probate estate. However, a Small Estate Affidavit itself does not transfer title to real estate.
A properly recorded TODI may provide a separate mechanism for transferring the real estate.
Learn more: Small Estate Affidavits in Illinois as of August 2025.
Illinois Estate Planning & Probate Guidance
Estate planning is not simply about preparing documents. Those documents need to work together when they are eventually needed.
Casper Legal Services assists Illinois property owners and families with estate planning, probate, estate administration, and real-estate matters.
Whether you are considering a Transfer on Death Instrument, preparing an estate plan, or dealing with property following the death of a loved one, we can help determine the appropriate next steps.
Contact Casper Legal Services to schedule a consultation regarding an Illinois estate planning, probate, or real-estate matter.
