A bulleted summary and a Q&A format of the amendments to the Illinois Real Property Transfer on Death Instrument Act are provided below.

1. Simple Bulleted Summary of Amendments

The amendments to the Illinois Residential Real Property Transfer on Death Instrument Act (TODI), effective

January 1, 2022, introduced the following significant changes¹¹:

• Expanded Scope: The TODI is no longer limited to residential real estate². It can now be used for any real estate located in Illinois, including commercial buildings³. The Act is now called the “Real Property Transfer on Death Instrument Act”⁴.
• Trust Beneficiaries Clarified: A trust can be a beneficiary, even if it is revocable or amendable⁵. The trust can be in existence when the TODI is signed, created under the owner’s will or the TODI itself, or created under a predeceased person’s will⁶.
• Formal Requirements:
  • The TODI does not need to state consideration was given for its execution⁷.Beneficiary addresses are not required⁸.
  • The TODI must be notarized, witnessed by two credible witnesses (who are not beneficiaries), and recorded before the owner’s death⁹⁹⁹⁹.
• Spousal Renunciation: A surviving spouse can renounce the TODI¹⁰¹⁰. The renunciation is treated like renouncing a will ¹¹, entitling the spouse to one-third of the real estate if the owner left a descendant, or one-half if there is no descendant¹²¹². The spouse must file the renunciation within seven months after the owner’s death¹³.
• Creditor Claims: A TODI beneficiary is subject to the same claims of creditors as someone taking property under a revocable trust¹⁴.
• Contesting a TODI: Similar rules for contesting wills apply¹⁵. The contest period is two years, shortened to six months after letters of office are issued if a probate estate is opened¹⁶.
• Drafting Attorney: The requirement that a lawyer draft the TODI is retained, but the requirement that they be licensed in Illinois is eliminated¹⁷. An owner can still draft their own TODI, and this will not void the transfer¹⁸.

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2. Q&A Format

General Information

Question	Answer
What is a TODI?	A Transfer on Death Instrument (TODI) allows a person owning real estate in Illinois to designate a beneficiary, thereby avoiding probate of the real estate at death191919.
When did the amendments take effect?	The amendments took effect on	January 1, 202220.
What is the new name of the Act?	The Act is now called the	“Real Property Transfer on Death Instrument Act”21.

Scope and Beneficiaries

Question	Answer
What property can now be transferred using a TODI?	The TODI is no longer limited to residential real estate and may now be used for any real estate located in Illinois22.
Can a trust be named as a beneficiary?	Yes. The beneficiary of a TODI may be a trust, even if it is revocable or amendable, that is in existence at the time the TODI is signed or created under a will23.
Who is not considered an “owner” for the purpose of the Act?	An owner does not include a trustee or other individual acting in a fiduciary, representative, or agency capacity24.

Requirements and Contests

Question	Answer
What are the requirements for a TODI to be valid?	It must be notarized and witnessed by two credible witnesses (who should not be beneficiaries), and recorded before the owner’s death25252525. Failure to follow these procedures will result in the TODI being void26.
Is an in-state lawyer required to draft the TODI?	No. A lawyer is still generally required to draft the TODI, but they no longer need to be licensed in Illinois27. An owner can also draft their own TODI without voiding the transfer28.
How long does a person have to contest a TODI?	The individual has two years to contest the TODI, unless a probate estate has been opened, in which case the period is shortened to six months after letters of office are issued to the executor29.

Spousal Rights and Creditors

Question	Answer
What are a surviving spouse’s rights under the amended Act?	A surviving spouse may renounce the TODI, entitling them to one-third or one-half of the real estate, depending on whether the owner left a descendant30303030.
When must a spouse file the renunciation?	The written renunciation must be filed in the Recorder’s office where the TODI was recorded within seven months after the owner’s death31.
Is the property subject to the owner’s creditors?	Yes. A beneficiary under a TODI is subject to the same claims of creditors as someone who would take property under a revocable trust32.

Alternatives

Question	Answer
Is a TODI always the best option?	No. In situations where an individual has a revocable trust, transferring the real property to the trust may be a better solution33. If an owner uses a TODI and becomes disabled, they will still need a financial power of attorney, which a trust can eliminate34343434.