Illinois Transfer on Death Instrument: How the Illinois Transfer on Death Deed Works Under 755 ILCS 27

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 4, 2026. Last reviewed October 4, 2026.

This guide follows the act section by section as read on the Illinois General Assembly's statute site, then explains the two other ways an Illinois home can pass without probate. It describes what Illinois law provides and is not advice about a particular property or instrument. Nothing here replaces reading the sections themselves, each of which is linked under Sources.

What Illinois calls it and what property it covers

The act's short title is the Real Property Transfer on Death Instrument Act (27/1). The Source line of that section shows the current title came from Public Act 102-68, effective January 1, 2022, and the word residential no longer appears in it. Section 10 explains why: the act applies to a transfer of residential real estate by an instrument made by an owner dying on or after January 1, 2012, and to a transfer of real property by an instrument made by an owner dying on or after the effective date of the 2021 amendment (27/10). Real property means an interest in realty located in this State capable of being transferred on the death of the owner (27/5), so since 2022 the instrument is not limited to homes of 1 to 4 units. The definitions still describe residential real estate as real property improved with not less than one nor more than 4 residential dwelling units, a residential condominium unit, or a single tract of agricultural real estate of 40 acres or less improved with a single family residence (27/5), because that is what the act covered for owners who died between 2012 and 2021.

An owner may transfer real property by a transfer on death instrument to one or more beneficiaries in any form of ownership valid under State law, concurrent or successive, absolute or conditional, contingent or vested, effective at the owner's death (27/20). The beneficiary may be the trustee of a trust that exists when the instrument is signed and is identified in it, of a trust created under the owner's will, or of a trust created under the instrument itself, even if the trust can be amended or revoked; unless the instrument says otherwise, a revocation or termination of the trust before the owner's death sends the property to the owner's estate (27/21). The instrument is nontestamentary and may not be admitted to probate as the owner's will or a codicil (27/30), and the act does not affect any other method of transferring real property that Illinois law permits (27/15).

Who may make one, and who may not sign for the owner

An owner is an individual who owns an interest in real property; the term does not include a trustee or an individual acting in a fiduciary, representative or agency capacity (27/5), so a trustee cannot use the act for trust property. The capacity required to make or revoke a transfer on death instrument is the same as the capacity required to make a will (27/35), which under the Probate Act belongs to every person who has attained the age of 18 years and is of sound mind and memory (755 ILCS 5/4-1). An agent under a durable power of attorney or other agency instrument, even if authorized, does not have the authority to create or revoke a transfer on death instrument on behalf of the owner, although the agent may still sell, transfer or encumber the property under the terms of the agency (27/35). One or more joint owners may execute one (27/70(a)); the joint owner rules are covered below.

Section 95 says a transfer on death instrument or its revocation shall be prepared only by a licensed attorney, but in the same breath says nothing in the section prohibits an owner from preparing his or her own instrument or revocation, or renders the instrument void for failing to be prepared by a licensed attorney (27/95). This site does not prepare transfer on death instruments; it describes the law so a homeowner can compare the options.

Signing: two witnesses and a notary

Every transfer on death instrument shall be signed by the owner or by some person in his or her presence and by his or her direction, and shall be attested in writing by 2 or more credible witnesses, and the signatures of the witnesses along with the owner's signature shall be acknowledged in front of a notary public (27/45(a)). The witnesses attest in writing substantially that on the date thereof the owner executed the instrument in their presence, that the owner's execution was his or her own free and voluntary act, and that at the time of execution they believed the owner to be of sound mind and memory (27/45(a)). If the instrument is not witnessed by at least 2 credible witnesses it is void (27/45(b)). If a beneficiary or the beneficiary's spouse attests, the interest transferred to that beneficiary is void unless the instrument is otherwise attested by enough witnesses exclusive of that person and the notary, though the beneficiary still receives up to the share he or she would have taken had no instrument been made (27/45(c)). The instrument must also contain the essential elements and formalities of a properly recordable inter vivos deed, though it need not state consideration or the beneficiaries' addresses, and must state that the transfer to the designated beneficiary is to occur at the owner's death (27/40(a)(1) and (2)).

Recording before death

The instrument must be recorded before the owner's death in the public records in the office of the recorder of the county or counties in which any part of the real property is located (27/40(a)(3)). The failure to comply with any of the requirements of subsection (a), including recording, renders the instrument void and ineffective to transfer title to the real property at the owner's death (27/40(b)). The instrument is effective without notice or delivery to, or acceptance by, the designated beneficiary during the owner's life, and without consideration (27/50), so the beneficiary need not be told. For a Cook County property, the Chicago living trust page covers the county's recording office; the other Illinois city pages linked below do the same for their counties.

Revoking or changing the instrument

A transfer on death instrument is revocable even if the instrument or another instrument contains a contrary provision (27/25). An instrument is effective to revoke a recorded transfer on death instrument, or any part of it, only if it is either another transfer on death instrument that revokes the earlier one expressly or by inconsistency, or an instrument of revocation that expressly revokes it, and it is executed, witnessed and acknowledged in the same manner Section 45 requires on a date after the acknowledgment of the instrument being revoked, and recorded before the owner's death in the office of the recorder of the county or counties where the prior instrument is recorded (27/55(a)). An instrument executed and recorded under the act may not be revoked by a revocatory act on the instrument, by an unrecorded instrument, or by a provision in a will (27/55(b)), so tearing it up or writing a new will does not undo it. If the owner signs a contract to sell the property after recording and the contract is still executory at death, the contract does not revoke the instrument, but the property passes to the beneficiary subject to the contract (27/60(b)).

For joint owners: if all of them execute the instrument, it is revoked only if all of the then living joint owners revoke it, and it is revocable by the last surviving joint owner notwithstanding any agreement between them; if fewer than all execute one, the instrument is governed by the designation of the joint owner who is the last to die, and if that owner made no instrument, the designation of any prior deceased joint owner is ineffective (27/70(b) and (c)). A transfer on death instrument does not sever a joint tenancy or tenancy by the entirety (27/70(d)).

During the owner's life: nothing changes

During an owner's life the instrument does not affect the right or interest of the owner, any other owner, or an agent for the owner to sell, transfer or encumber the property; does not affect an interest or right of a transferee, lienholder, mortgagee or option holder, or of a secured or unsecured creditor or future creditor of the owner, even one with actual or constructive notice of the instrument; does not affect the owner's or designated beneficiary's eligibility for any form of public assistance; does not create a legal or equitable interest in favor of the designated beneficiary; and does not subject the real property to claims or process of a creditor of the designated beneficiary (27/60(a)). The statute uses the words public assistance and does not name any program; this page says only what the statute says.

At the owner's death

Except as the instrument, the act, the Probate Act or another act governing nontestamentary instruments provides otherwise, these rules apply on the owner's death (27/65(a)): subject to the beneficiary's right to disclaim, the interest passes to the beneficiary in accordance with the instrument; two or more designated beneficiaries with concurrent interests take in equal and undivided shares with no right of survivorship; if a single designated beneficiary fails to survive the owner or is not in existence at the owner's death, the property passes to the owner's estate; if some but not all of several beneficiaries predecease the owner, the lapsed shares go to the remaining beneficiaries in proportion to their interests; and if the beneficiary who died first is a descendant of the owner, that beneficiary's descendants living at the owner's death take the share per stirpes (27/65(a)(1) to (5)). Subject to the Probate Act and the Conveyances Act, the beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, options, mortgages, liens and other interests to which it is subject at the owner's death (27/65(b)); the transfer is without covenant or warranty of title even if the instrument says otherwise (27/65(c)); and where there is no sufficient evidence of the order of deaths, the designated beneficiary is deemed to have predeceased the owner (27/65(d)).

The notice of death affidavit

Any beneficiary who takes under the instrument may file in the office of the recorder in the county or counties where the property is located a notice of death affidavit to confirm title following the owner's death. It must contain the name and address, if known, of each beneficiary, the legal description, the street address and parcel identification number if known, the date of the instrument and its recording document number, the name of the deceased owner, the date and place of death, and the name and address to which future tax bills should be mailed, and it must be acknowledged under penalty of perjury before a notary public or person authorized to administer oaths. Filing the affidavit is not a condition to the transfer of title (27/75).

Disclaiming the property

A beneficiary may disclaim all or part of the beneficiary's interest as provided by the Disclaimer Under Nontestamentary Instrument Act (27/80). That act, 760 ILCS 25, lets a beneficiary under a nontestamentary instrument disclaim in whole or in part the succession to any property, real or personal, by delivering or filing a written disclaimer in the manner provided in Section 2-7 of the Probate Act (760 ILCS 25/1). Under 2-7 the disclaimer must describe the property or interest disclaimed, be signed by the disclaimant and declare the disclaimer and its extent; where real property is disclaimed an executed counterpart may be recorded with the recorder of the county where the land lies; the disclaimed interest passes as if the disclaimant had predeceased the decedent; the disclaimer is irrevocable; and the right to disclaim is barred by, among other things, a written waiver or an acceptance of the property (755 ILCS 5/2-7(b) to (e)). We read both sections on October 4, 2026 and found no deadline stated in days or months in either; a beneficiary who may want to disclaim should act before accepting the property, since acceptance bars the disclaimer.

Creditors, the family's awards and the two year limits

A beneficiary of a transfer on death instrument is subject to creditor, administrative, funeral and burial, and statutory claims to the same extent and in the same manner as a beneficiary of a trust that was revocable at the settlor's death under Section 505 of the Illinois Trust Code, and where more than one property was transferred the liability is apportioned among them in proportion to their net values at the owner's death (27/85). Under 760 ILCS 3/505(a)(5), after the settlor's death the property of a trust that was revocable is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and disposal of remains, and statutory awards to a surviving spouse and children, to the extent the settlor's probate estate is inadequate to satisfy them; any claim that would be barred against the estate is barred against the trust property as well (505(a)(5)(B)). The Probate Act bars every claim that could have been barred under its notice rules, in any event, 2 years after the decedent's death, whether or not letters of office are issued (755 ILCS 5/18-12(b)). Separately, an action to set aside or contest the validity of a transfer on death instrument must be commenced within the earlier of 2 years after the date of the owner's death or 6 months from the date letters of office are issued under the Probate Act (27/90(a)), and a bona fide purchaser or mortgagee for value takes free of any action, claim, liability or contest if the transfer occurs before a lis pendens is recorded or a notice of renunciation is filed (27/90(b)). The spouse's and children's awards themselves are described in the Illinois spouse's rights guide.

The surviving spouse's right to renounce

Unless the surviving spouse has waived the right, a transfer on death instrument may be renounced by the owner's surviving spouse, who then takes a one-third interest in the real property if the owner leaves a descendant or a one-half interest if the owner leaves no descendant (27/66(a)). The spouse may waive the right by executing a waiver as part of the instrument, and has no right to renounce an instrument that transfers the property to a trustee of a trust for the spouse's sole benefit during the spouse's lifetime (27/66(a)). To renounce, the spouse files in the recorder of deeds office where the instrument is recorded a signed written instrument describing the property and declaring the renunciation, within 7 months after the date of the owner's death or within such additional time as a court may grant under Section 2-8 of the Probate Act; filing it is a complete bar to any claim of the spouse under the instrument (27/66(b)). This mirrors the renunciation of a will under 755 ILCS 5/2-8, which gives the spouse 1/3 of the estate if the testator leaves a descendant and 1/2 if not, filed within 7 months after the will is admitted to probate.

Alternative 1: a living trust

A revocable living trust holds title to the home during the owner's life, so at death the home is trust property that the successor trustee handles under the trust's terms rather than probate property. A trust may be created by a transfer of property to another person as trustee during the settlor's lifetime or by a declaration by the owner that the owner holds identifiable property as trustee (760 ILCS 3/401); it is created only if the settlor has capacity, indicates an intention to create it, the trust has a definite beneficiary, the trustee has duties to perform, and the same person is not the sole trustee and sole beneficiary (3/402). The capacity to create, amend or revoke a revocable trust is the same as that required to make a will (3/601). The settlor may revoke or amend only if the instrument expressly says it is revocable or amendable, by a method the instrument provides or by a later signed writing other than a will that refers to the trust; on revocation the trustee returns the property as the settlor directs (3/602). Nine months after the settlor's death the trustee may distribute the trust property, and a contest of a revocable trust must be brought within the earlier of 2 years after death or, depending on the trust, the period for contesting the settlor's will or 6 months after the trustee's notice (3/604). The trust is reachable by creditors and the family's statutory awards on the same terms as the transfer on death instrument (3/505(a)(5)), so neither tool shelters the home from debts.

What the trust adds is control: it can hold bank and brokerage accounts as well as the home, provide for a beneficiary who is a minor or cannot manage property, name a chain of successors, and give the trustee directions that an instrument naming a beneficiary cannot carry. A married couple's revocable trust can even keep the homestead's tenancy by the entirety protection, because the Joint Tenancy Act deems a homestead held by the trustees of the spouses' revocable trusts to be held in tenancy by the entirety when the spouses are the primary beneficiaries and the deed to the trustees says so (765 ILCS 1005/1c). Moving the home into the trust means recording a deed to the trustee; the funding guide explains the steps. An owner can also combine the two tools by naming the trustee of an existing trust as the beneficiary of a transfer on death instrument (27/21).

Alternative 2: joint tenancy and tenancy by the entirety

Under the Joint Tenancy Act, no estate in joint tenancy in land is held or claimed under any grant, legacy or conveyance, other than to executors and trustees, unless the premises are expressly declared to pass not in tenancy in common but in joint tenancy; otherwise the estate is deemed a tenancy in common, unless a devise or conveyance of homestead property is expressly declared to pass to individuals married to each other as tenants by the entirety under Section 1c (765 ILCS 1005/1). A conveyance that declares the estate is not in tenancy in common but with right of survivorship, or in joint tenancy, creates an estate with right of survivorship even when the grantor is also named as a grantee, with all the effects of a common law joint tenancy (1005/1b). So an Illinois deed must say joint tenancy for the survivor to take without probate; a deed to two people that says nothing makes them tenants in common, and each half passes through its owner's estate.

Tenancy by the entirety is for a married couple's homestead only. When both spouses, during marriage or a civil union, convey property maintained or intended as a homestead and the instrument expressly declares the conveyance is to tenants by the entirety, the estate is a tenancy by the entirety; it exists only while the tenants remain married, the survivor retains the entire estate on the death of either, a judgment of dissolution turns it into a tenancy in common unless the court directs otherwise, a purported conveyance to two grantees who are not married creates a joint tenancy instead, and no deed, contract for deed, mortgage or lease of the homestead is effective unless signed by both tenants (1005/1c). Sections 1 and 1c were last amended by Public Act 104-40, effective January 1, 2026, which replaced the words husband and wife together during coverture with both spouses during marriage or a civil union, and which Section 1c declares, except for a change to the Conveyances Act, declarative of existing law. The act's own definitions treat a joint tenant and a tenant by the entirety as joint owners who may make a transfer on death instrument for the survivor's eventual death (27/5, 27/70). Survivorship postpones the question rather than answering it: the last surviving owner's interest still passes through that owner's estate unless a trust or a transfer on death instrument is in place.

What changed in 2025 and 2026

Two acts of the 104th General Assembly (104-0001 through 104-0854 as of October 4, 2026) touch the sections on this page. Public Act 104-417, the First 2025 General Revisory Act, effective August 15, 2025, amended 755 ILCS 27/90 only to strike a stray word in subsection (b); the act states it is not intended to make any substantive change in the law. Public Act 104-40, effective January 1, 2026, amended Joint Tenancy Act Sections 1 and 1c as described above. No other section of 755 ILCS 27 carries a 104th General Assembly public act in its Source line, and no act in the list is described as amending the transfer on death instrument act, the Trust Code sections cited, or Probate Act Sections 2-7, 2-8, 4-1 or 18-12.