Avoiding probate with your real estate

photo by Richard West, licensed by Creative Commons

One of the common mantras in estate planning that appears over and over is to avoid probate as much as possible. In 2012 Illinois made this a little easier by enacting Transfer-On-Death (TOD) instruments under 755 ILCS 27/1 et seq.

In summary, a TOD instrument is like a hybrid between a real estate deed and a will. In simple terms, a TOD instrument can only be made by the record owner of the real estate deed, and the owner then records a new deed stating the intention that the deed pass upon his or her death to a certain beneficiary. Then, when the owner dies, that deed becomes the property of the beneficiary without going through the probate court.

Of course, certain requirements must be followed for this to be valid. For example, only an owner with the same capacity of sound mind required for a will can execute a TOD deed. Additionally, the owner’s passing must also be recorded with a certain type of death affidavit, in order for the transfer to be complete. Finally, the instrument is subject to all the same requirements for other real estate deeds.

On the other hand, joint owners of property may establish a TOD instrument jointly, such that it will only take effect when all joint parties pass away. Also, the TOD deed may be revoked while the owner is still alive by executing and recording a non-TOD deed or TOD revocation instrument.

Because of the technicalities involved, a good attorney should be consulted before attempting to create and execute your own TOD instrument. The cost to execute one is often minor, while greatly easing the probate process for your loved ones.

DISCLAIMER: Please do not prepare your own documents / filings after reading this blog, without consulting an attorney first about your specific situation. I make no representations or guarantees here as to the applicability of any claim in your specific situation. This blog is ADVERTISING MATERIAL only, and should not be relied upon as legal advice, especially if you are not an Illinois resident. Please contact me if you have a legal question or concern, as no attorney-client agreement will exist between myself and any readers of this blog unless it is signed in writing.