Transfer on Death Deed
Illinois has joined several other states in allowing a homeowner to avoid the probate process as it relates to their residence. A new option has been created under the Illinois Residential Real Property Transfer on Death Instrument Act (the “Act”). It is known as the Transfer on Death Instrument.
Now a homeowner of residential real estate (real property improved with not less than one but no more than four residential dwelling units) can transfer the property, upon his or her death to a designated beneficiary without the formality of the probate process. This streamlined approach allows the owner of the property to use and enjoy the property during their lifetime, and upon death, title to the property will pass to the designated beneficiary.
There are specialized requirements which must be met in order for the Transfer on Death Instrument to be effective:
- It must contain all the elements and formalities of a properly recordable deed;
- It must be signed by the owner of the property and two witnesses, all of whose signatures must be acknowledged by a Notary Public.
- It must state that the transfer is effective only at the death of the owner;
- It must be recorded in the office of the Recorder of Deeds in the county in which the property is located before the owner’s death.
Like other testamentary documents, the owner can change his or her mind before death and revoke the Transfer on Death Instrument. This can be accomplished in one of two ways:
- By the execution and recording of a new Transfer on Death Instrument which expressly revokes the prior instrument or is inconsistent with the prior Transfer on Death Instrument; or
- By an instrument of revocation which expressly revokes the prior Transfer on Death Instrument.
Just as in the original Transfer on Death Instrument requirements, all formalities, signatures and recordings must take place.
A beneficiary can also disclaim the gift after the donor’s death, just as in an ordinary probate proceeding. You should promptly contact your attorney so you can be advised of the proper proceedings.
The attorneys at Bellas & Wachowski are experienced in all matters relating to estate planning and the Transfer on Death Instrument is another tool you can use to fashion the most effective disposition of your property upon your death. Call us for more information related to your estate planning needs.
Bellas & Wacowski
Attorneys at Law
15 North Northwest Highway
Park Ridge, Illinois 60068