Illinois law, for title research
Illinois transfer on death deed: the transfer on death instrument, quoted from 755 ILCS 27
Every rule below is quoted from the Real Property Transfer on Death Instrument Act, 755 ILCS 27 or another official source, linked and checked on the date shown. General information, not legal advice.
Yes. Illinois calls it a transfer on death instrument, under the Real Property Transfer on Death Instrument Act, 755 ILCS 27. It must have the formalities of a recordable deed, be attested by 2 credible witnesses, be acknowledged before a notary, state the transfer occurs at death, and be recorded with the county recorder before the owner dies.
Does Illinois have a transfer on death deed?
Yes, under a different name. The Real Property Transfer on Death Instrument Act, 755 ILCS 27, lets an owner transfer real property to one or more beneficiaries effective at death, in any form of ownership valid under Illinois law, under section 20. The act first covered only residential real estate, for owners dying on or after January 1, 2012; the amendment in P.A. 102-68, effective January 1, 2022, extended it to real property generally for owners dying on or after that date, under section 10. Residential real estate, as section 5 defines it, means property with 1 to 4 dwelling units, a residential condominium unit, or a single tract of agricultural land of 40 acres or less with a single family residence.
Only an individual can be the owner here. Section 5 excludes a trustee and an individual holding in a fiduciary, representative or agency capacity.
The instrument is not a will. Section 30 makes it nontestamentary and says it may not be admitted to probate as the owner's will, and section 15 says the act does not displace any other lawful way of transferring real property.
How must an Illinois transfer on death instrument be signed and recorded?
More formally than a deed. Section 40 requires the essential elements and formalities of a properly recordable deed, a statement that the transfer to the beneficiary is to occur at the owner's death, and recording before the owner's death with the recorder of the county or counties where any part of the property lies. Section 45 adds the will-style execution: the owner, or someone in the owner's presence and at the owner's direction, signs, 2 or more credible witnesses attest in writing, and the owner's and witnesses' signatures are acknowledged before a notary. Failing a section 40 requirement makes the instrument void, and section 45(b) says the same of an instrument without 2 credible witnesses, except as section 45(c) provides.
A beneficiary should not be a witness. Under section 45(c), if a beneficiary or the beneficiary's spouse attests, the gift to that beneficiary is void unless enough other witnesses signed, limited to what the beneficiary would have taken without the instrument. The owner needs the capacity to make a will, and section 35 bars an agent under a durable power of attorney or other agency from creating or revoking one, even if authorized, though the agent may sell, transfer or encumber the property under the terms of the agency. No notice to the beneficiary, delivery or consideration is needed, under section 50. Section 95 says a licensed attorney prepares it, though an owner may prepare one and it is not void for lack of an attorney.
How is an Illinois transfer on death instrument revoked?
By a later recorded instrument. Section 25 makes the instrument revocable even if it says otherwise. Section 55(a) says an instrument revokes a recorded one, or any part of it, only if it is a later transfer on death instrument that revokes expressly or by inconsistency, or an instrument of revocation that expressly revokes, executed, witnessed and acknowledged as section 45 requires after the earlier acknowledgment date, and recorded before the owner's death in the county or counties where the earlier one is recorded. Tearing up the original, an unrecorded paper, or a provision in a will does not revoke a recorded instrument, under section 55(b). The act does not mention divorce, and section 30 leaves the instrument subject to other laws on nontestamentary transfers, so the effect of a divorce is for an Illinois attorney.
Joint owners follow section 70. If all of them signed, all the living joint owners must revoke it together, though the last survivor may revoke it alone. If fewer than all signed, the designation of the last joint owner to die controls, and if that owner did not sign one, the designation of a joint owner who died earlier is ineffective. Section 5 limits joint owners to those holding with a right of survivorship, including tenants by the entirety, and excludes tenants in common.
What does it change while the owner is alive?
Nothing on title. Under section 60, the instrument does not affect the owner's right to sell, transfer or mortgage the property, does not affect a buyer, lienholder, mortgagee or option holder even with notice of it, does not affect the owner's creditors, gives the beneficiary no interest, and does not affect the owner's or the beneficiary's eligibility for any form of public assistance. If the owner signs a sale contract after recording and any part of it is still executory at death, the property passes to the beneficiary subject to that contract.
What happens when the owner dies?
Section 65(a) sets default rules for property the owner still owned at death, except as the instrument, the act, the Probate Act of 1975 or another act on nontestamentary instruments provides. Beneficiaries take subject to their right to disclaim. Two or more beneficiaries take equal undivided shares with no right of survivorship. If a single beneficiary did not survive or is not in existence at the death, the property passes to the owner's estate. If one of several did not survive, that share goes to the others. Both of those rules give way to section 65(a)(5): a beneficiary who dies before the owner and is the owner's descendant is replaced by that beneficiary's descendants living at the death, per stirpes. Without sufficient evidence of the order of deaths, section 65(d) treats the beneficiary as having died first, unless the instrument provides otherwise.
A trustee can take. Section 21 permits a transfer to the trustee of a trust, and unless the instrument provides otherwise, a revocation or termination of the trust before the owner's death sends the transfer to the owner's estate.
Section 70(d) says the instrument does not sever a joint tenancy or tenancy by the entirety; how that plays out on a given deed is for an Illinois attorney. To put the death on the record, a beneficiary may file a notice of death affidavit with the recorder of the county or counties where the property lies, under section 75, giving each beneficiary's name and address if known, the legal description, parcel number, the instrument's recording number and the date and place of death. Filing it is not a condition of the transfer. In search practice, that means the report covers the instrument whether or not an affidavit was filed.
Can the surviving spouse override an Illinois transfer on death instrument?
Yes, unless the spouse waived the right. Section 66 lets the owner's surviving spouse renounce the instrument and take a one-third interest in the property if the owner left a descendant, or a one-half interest if not. The spouse renounces by filing a signed instrument describing the property in the recorder's office where the original instrument is recorded, within 7 months after the death or any extension a court grants. The spouse may waive the right in advance by signing a waiver as part of the instrument, and has no right to renounce a transfer to a trust for the spouse's sole benefit for life.
In search practice, a renunciation is a filing with the recorder, and the time can run past 7 months if a court extends it. The report shows what is of record at the search date; whether a renunciation can still be filed is for an Illinois attorney.
Do liens, creditors and contests follow the property?
Liens do, within the statute's limits. Section 65(b) says that, subject to the Probate Act of 1975 and the Conveyances Act, the beneficiary takes subject to all conveyances, encumbrances, contracts, options, mortgages, liens and other interests affecting the property at death, and section 65(c) says the transfer carries no covenant or warranty of title, whatever the instrument says. Claims run against the beneficiary: section 85 makes a beneficiary subject to creditor, administrative, funeral and burial, and statutory claims to the same extent and in the same manner as the beneficiary of a revocable trust under section 505 of the Illinois Trust Code, apportioned by net value when more than one property passes.
A contest must be filed within the earlier of 2 years after the death or 6 months after letters of office issue in a probate case, under section 90(a). Section 90(b) lets a bona fide purchaser or mortgagee for value take free and clear of any action, claim, liability or contest if the transfer occurs before a lis pendens is recorded or a spouse's notice of renunciation is filed.
What a title search checks after an Illinois owner dies
A probate title search reads the chain of title and how title passed: the vesting deed, any instrument in the owner's name with its recording date and image, including its witness and notary lines and any waiver, any later recorded instrument or renunciation of record at the search date, and the recorded mortgages and liens to pay. Whether an instrument is valid is a legal conclusion for an Illinois attorney; the report shows the record it depends on.
The Illinois transfer on death rules on this page, with their sources
Sources: 755 ILCS 27/20, Transfer on death instrument authorized; 755 ILCS 27/10, Applicability; 755 ILCS 27/40, Requirements; 755 ILCS 27/45, Signing, attestation, and acknowledgment; 755 ILCS 27/35, Capacity of owner and agent's authority; 755 ILCS 27/50, Notice, delivery, acceptance, or consideration not required; 755 ILCS 27/30, Transfer on death instrument nontestamentary; 755 ILCS 27/55, Revocation by recorded instrument; 755 ILCS 27/60, Effect during owner's life; 755 ILCS 27/65, Effect at owner's death; 755 ILCS 27/70, Joint owners; 755 ILCS 27/75, Notice of death affidavit; 755 ILCS 27/66, Renunciation by spouse; 755 ILCS 27/85, Rights of claimants; 755 ILCS 27/90, Limitations and bona fide transfers; 755 ILCS 27/95, Preparation; 755 ILCS 27/5, Definitions; 755 ILCS 27/21, Trust as beneficiary. Each row links the section it summarizes.
| Rule | What it says | Source |
|---|---|---|
| What it does | Transfers real property to one or more beneficiaries, effective at the owner's death | Sec. 20, 755 ILCS 27 checked 2026-11-07 |
| Which property | Residential real estate for owners dying on or after January 1, 2012; all real property under the 2022 amendment | Sec. 10, 755 ILCS 27 checked 2026-11-07 |
| What makes it valid | Deed formalities, a statement that the transfer occurs at death, and recording before death; otherwise void | Sec. 40, 755 ILCS 27 checked 2026-11-07 |
| Signing | Signed by the owner or at the owner's direction, attested by 2 or more credible witnesses, and acknowledged before a notary | Sec. 45, 755 ILCS 27 checked 2026-11-07 |
| A beneficiary as witness | Voids that beneficiary's interest unless 2 other witnesses also attested, limited to the share without the instrument | Sec. 45(c), 755 ILCS 27 checked 2026-11-07 |
| Capacity and agents | Same capacity as a will; an agent under a power of attorney cannot create or revoke one | Sec. 35, 755 ILCS 27 checked 2026-11-07 |
| Notice and consideration | Not needed: no notice, delivery or acceptance during life, and no consideration | Sec. 50, 755 ILCS 27 checked 2026-11-07 |
| Against a will | Nontestamentary and always revocable; cannot be probated as a will, and a will cannot revoke it | Secs. 25, 30, 55(b), 755 ILCS 27 checked 2026-11-07 |
| Revoking it | By a later instrument or an instrument of revocation, signed with the same formalities and recorded before death | Sec. 55, 755 ILCS 27 checked 2026-11-07 |
| While the owner is alive | No effect on the owner's right to sell or mortgage, on lienholders or creditors, or on public assistance eligibility | Sec. 60, 755 ILCS 27 checked 2026-11-07 |
| At the owner's death | By default, equal undivided shares without survivorship; a lone beneficiary who died first sends it to the estate, unless that beneficiary's descendants take | Sec. 65(a), 755 ILCS 27 checked 2026-11-07 |
| Liens and warranty | Subject to the Probate Act and the Conveyances Act, the beneficiary takes subject to every mortgage, lien and other interest at death, without warranty of title | Sec. 65(b), (c), 755 ILCS 27 checked 2026-11-07 |
| Joint owners | If fewer than all sign, the last joint owner to die controls; the instrument does not sever a joint tenancy or tenancy by the entirety | Sec. 70, 755 ILCS 27 checked 2026-11-07 |
| Notice of death affidavit | A beneficiary may record one to confirm title; it is not a condition of the transfer | Sec. 75, 755 ILCS 27 checked 2026-11-07 |
| The surviving spouse | May renounce within 7 months or any court extension and take one-third (with descendants) or one-half, unless waived | Sec. 66, 755 ILCS 27 checked 2026-11-07 |
| Creditors and claims | The beneficiary answers for claims like the beneficiary of a revocable trust | Sec. 85, 755 ILCS 27 checked 2026-11-07 |
| Contests and buyers | Contest within the earlier of 2 years after death or 6 months after letters issue; a bona fide purchaser or mortgagee is protected | Sec. 90, 755 ILCS 27 checked 2026-11-07 |
| Who prepares it | A licensed attorney, though an owner may prepare one, and lack of an attorney does not void it | Sec. 95, 755 ILCS 27 checked 2026-11-07 |
| Who can be the owner | An individual, not a trustee or someone holding as a fiduciary, representative or agent | Sec. 5, 755 ILCS 27 checked 2026-11-08 |
| Residential real estate | 1 to 4 dwelling units, a residential condominium unit, or a tract of 40 acres or less with a single family residence | Sec. 5, 755 ILCS 27 checked 2026-11-08 |
| A trust as beneficiary | Permitted; a trust revoked or ended before the death sends the transfer to the estate, unless the instrument says otherwise | Sec. 21, 755 ILCS 27 checked 2026-11-08 |
Questions people ask
Does a will override an Illinois transfer on death instrument?
No. Section 55(b) of 755 ILCS 27 says a recorded instrument may not be revoked by a provision in a will, and section 30 says it may not be admitted to probate as the owner's will.
How many witnesses does an Illinois transfer on death instrument need?
At least 2 credible witnesses, plus a notary. Section 45(a) requires the witnesses to attest in writing and the owner's and witnesses' signatures to be acknowledged before a notary public. Under section 45(b), an instrument without 2 credible witnesses is void, except as section 45(c) provides.
Can a power of attorney sign an Illinois transfer on death instrument?
An agent cannot create one. Section 35 says an agent under a durable power of attorney or other agency lacks authority to create or revoke one for the owner, even if authorized, though the agent may sell, transfer or encumber the property under the agency. Section 45(a) separately lets another person sign in the owner's presence and at the owner's direction.
What happens if an Illinois beneficiary dies before the owner?
Unless the instrument provides otherwise, section 65(a) replaces a beneficiary who was the owner's descendant with that beneficiary's descendants living at the death, per stirpes. Otherwise a lone beneficiary's share passes to the owner's estate, and a share among several passes to the others.
Can a surviving spouse renounce an Illinois transfer on death instrument?
Yes, unless waived in the instrument or the transfer is to a trust for the spouse's sole lifetime benefit. Section 66 gives the spouse one-third of the property if the owner left a descendant, or one-half if not, by a renunciation filed with the recorder within 7 months after the death or any added time a court grants.
How long do you have to contest an Illinois transfer on death instrument?
Section 90(a) requires the action within the earlier of 2 years after the owner's death or 6 months after letters of office are issued under the Probate Act of 1975. Section 90(b) protects a bona fide purchaser or mortgagee for value who takes before a lis pendens is recorded or a spouse's notice of renunciation is filed.
More on how Illinois property law shapes a title search: title research in Illinois.