When Illinois TODI Deeds Fail: Avoiding Title Disputes

 Posted on October 31, 2025 in Business Law

Although the Illinois Transfer on Death Instrument (TODI) statute (755 ILCS 27/)  has been amended and clarified multiple times since its adoption, many homeowners and heirs may still not fully understand the execution and survivorship requirements. The TODI can be a simple way to pass Illinois real estate without probate - until it fails. From confusion regarding joint ownership, to missing witnesses or recording errors, even the smallest oversight can revert the property back to the estate.

Worse, a mistake can cause expensive, lengthy title litigation between heirs. As Illinois courts continue to see more TODI disputes, the importance of structuring these deeds properly through estate planning is essential. A TODI rarely benefits from being a DIY project; rather, it should always include an experienced Cook County, IL estate planning attorney.  

What Does an Illinois Transfer on Death Instrument Do?

An Illinois Transfer on Death Instrument allows a property owner to transfer real estate to a named beneficiary upon his or her death, bypassing the time, cost, and stress of the probate court process. The owner can name one or more beneficiaries to receive the property on a TODI; however, it requires formal execution. The owner can revoke or change the TODI at any time, as long as the correct legal procedure for making changes is followed.

TODIs have no rules for how beneficiaries share or manage the property after the death of the owner, so if property needs to be divided or managed in a specific way, a will or trust might be more appropriate. Although a TODI transfers ownership, the beneficiary is required to file a Notice of Death Affidavit and Acceptance of Transfer on Death Instrument within two years after the owner’s death.

What Are the Most Common Reasons Illinois TODIs Fail?

An Illinois TODI can work well for many owners, but strict rules must be followed carefully. The most common reasons that a TODI may fail include:

• One of the two required witnesses is missing.
• The instrument is not properly notarized.
• The TODI was not recorded before the owner’s death.
• The TODI is used for property held in joint tenancy or tenancy by the entirety (A TODI cannot override Illinois survivorship rights).
• Deceased co-owners were not removed before the TODI was executed.
• A beneficiary predeceases the owner or lacks capacity at the time of the transfer.
• The property description is ambiguous or incorrect and does not match county records.
• The TODI conflicts with instructions in the decedent’s trust or will, resulting in potential court actions.

What Happens When a TODI Fails?

When a TODI fails for any of the above reasons, the property reverts to the decedent’s probate estate. Heirs may initiate declaratory judgment actions, or title insurance may be denied or delayed until ownership is resolved through litigation. Illinois is seeing an increase in rejections of improperly drafted TODIs, so the instrument must be drafted and executed correctly. Complex family structures or multiple properties could gain stronger protection while avoiding TODI issues through the use of a revocable living trust.

Contact a DuPage County, IL Estate Planning Lawyer

While a Transfer on Death Instrument can be a powerful estate planning tool, this is true only when it is properly prepared, executed, and aligned with the overall estate plan. If you are considering using a TODI or you are facing disputes following a loved one’s death, a Cook County, IL will and trust attorney from Whitacre & Stefanczuk LTD can help.

Our attorneys treat clients like family; we want you to feel comfortable in our intimate, very communicative practice. We are active in the Polish Community, and Attorney Stefanczuk is first-generation Polish and speaks Polish fluently. To schedule your free consultation, call 773-622-6100.