In Illinois, a “transfer on death instrument”, or “TODI”, allows an owner of residential real property to designate one or more beneficiaries who will receive interest in the property on the owner’s death, bypassing probate court. A TODI is a simple and inexpensive estate planning option with many benefits.
A transfer on death instrument is recorded in public records by the current owner of residential real property and designates one or more persons as beneficiary of that specific property. Once the original owner dies, ownership of the property is transferred to the beneficiary. The beneficiary can be listed as an individual or an organization, such as a charity. One can also list contingent beneficiaries in the event the original intended beneficiary passes away before the owner, or declines to accept the property.
For a TODI to work successfully, the requirements in Illinois include:
The owner of property must hold the same capacity as required to make a will: the individual must be 18 years or older and must be of “sound mind and memory”
A grantor, grantee, description of the property to be conveyed, language of conveyance, and the grantor’s signature
Two witness signatures
Language that clearly states that the transfer to the designated beneficiaries occurs after the owner’s death
Proper recording in the county where the property is located prior to the owner’s death
Though the owner records a TODI, the beneficiary has the opportunity to accept or disclaim the TODI.
Benefits of filing a Transfer on Death Instrument
It is simple and inexpensive
A TODI is less costly than other estate planning options such as a living trust. The purpose of the TODI law is to create an inexpensive and simple method for transferring a real property without a probate court proceeding. Typically, if one passes away without a will and the title to real property is in their name alone, their heirs will have to open a probate proceeding in court to transfer the real property from the owner’s estate. This process can often be complex and stretch over a long time period, resulting in higher attorney fees. Recording a TODI can avoid this situation as well as alleviate stress on your grieving relatives.
The transfer on death instrument offers flexibility for the owner of real property
After one records a TODI, they are able to cancel or alter the document at any point in their lives. If the owner changes their mind at some point on who the desired beneficiaries should be, that can be accomplished with simple adjustments. However, there are limitations on the process. The beneficiary cannot, under any circumstance, file or change beneficiary designations on behalf of the owner and has no claim to the property until the owner’s death.
The owner may keep possession of the real property
A TODI allows the owner to retain full ownership rights and obligations during their life. The beneficiary’s creditors cannot burden the property while the owner is alive because creditors cannot place a lien on title of the property. However, if the beneficiary has creditors they should consult with an attorney prior to accepting a transfer on death instrument.
If you are interested in putting a transfer on death instrument in place, or if you are the beneficiary of such an instrument, contact Kershner Sledziewski Law today.