Transfer on Death Deed
Illinois has had a option to homeowners to avoid the probate process as it relates to their residence. This option was created under the Illinois Residential Real Property Transfer on Death Instrument (“TODI”) Act and known as the Transfer on Death Instrument. Prior to January 1, 2002, this was limited to residential property only.
Starting January 1, 2022, this popular estate planning option was expanded to non-residential property. The TODI was amended to permit an owner of any type of real estate to provide for a non-probate transfer of the real estate upon the death of the owner to a third party. Simply, an owner of real estate can now transfer title to real estate upon their death without probate – any type of real estate.
And, as an added bonus, the TODI can name the trustee of a trust as the designated beneficiary, including a trust created under the owner’s own Will. This is a tool that will help property owners avoid probate and seamlessly pass real estate to their heirs.
There are, however, 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 credible 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 their 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.
- Provided all formalities, signatures and recordings take place.
The experienced business and estate planning attorneys at Bellas & Wachowski have been helping business owners protect their assets and fashion the most effective disposition of property upon your death. Contact Attorney Misty Cygan for more information related to your estate planning needs.
Bellas & Wacowski
Attorneys at Law
15 North Northwest Highway
Park Ridge, Illinois 60068