Illinois Transfer on Death Instrument (Joint Tenants with Right of Survivorship)

Two Illinois joint tenants can name, in one recorded instrument, who takes their property after both of them have died. This transfer on death instrument is prepared for exactly that pair: two owners who hold Illinois real property as joint tenants with right of survivorship, both signing one document under 755 ILCS 27, the Real Property Transfer on Death Instrument Act. The survivorship in their title decides the first death; the instrument operates at the second.

The survivorship handles the first death, the instrument handles the second

Illinois joint tenancy carries the property to the surviving joint tenant by operation of law, and Section 70(d) of the Act provides that a transfer on death instrument does not sever a joint tenancy. The form says so on its face: on the death of an owner survived by the other, the property passes to the surviving owner by right of survivorship and not under the instrument, and the transfer to the designated beneficiary occurs at the death of the last surviving owner. It also prints, word for word, the sentence Section 40(a)(2) requires.

Revocation follows the joint signature. Under Section 70(b), an instrument executed by all of the joint owners is revoked only by all of the then living joint owners, and the last surviving joint owner may revoke it alone, whatever the two may have agreed between themselves.

What this configuration recites

The form recites two owners, each an individual who signs personally, holding title as joint tenants with right of survivorship and not as tenants in common, and recites no marital status, because the joint owner rules of Section 70 turn on the form of ownership rather than on marriage. Section 3 identifies the vesting deed that created the joint tenancy, since under 765 ILCS 1005/1 the survivorship exists only where that deed expressly declared it. Two sisters who inherited the family farmhouse as joint tenants naming their nieces and nephews, an unmarried couple who bought a condominium together as joint tenants naming a charity, and a parent and adult child who took title as joint tenants naming the grandchildren present the two-owner pattern this instrument recites. A single owner, tenants in common, spouses holding homestead as tenants by the entirety, a trustee, three or more owners on one instrument, and an instrument signed by only one of two joint tenants, which Section 70(c) governs differently, are outside this configuration. The beneficiary section accepts one or more designated beneficiaries by name, an individual, a trustee, or an entity; where two or more are named and nothing else is stated, Section 65(a)(2) gives them equal undivided shares with no survivorship among them.

Four signatures, three certificates

Section 45 of the Act requires each owner to sign in the presence of two credible witnesses, the witnesses to attest in writing, and the signatures of owners and witnesses alike to be acknowledged in front of a notary public; an instrument without two credible witnesses is void. The form prints the attestation in the statute's substance, written for two owners, above two witness blocks, and carries three acknowledgment certificates in the short form of the Illinois Notary Public Act: one for each owner and one for the two witnesses. Illinois law permits one certificate to name several signers; the three certificates are the form's layout. A witness who is a beneficiary, or a beneficiary's spouse, engages Section 45(c).

Recorded in the owners' lifetime

Under Section 40(a)(3) the instrument is recorded before the owner's death with the recorder of each county in which any part of the property lies, and an instrument not so recorded is void. For two joint tenants the pattern is recording promptly after the signing, while both are living. The form carries the preparer statement, return address, tax bill address, and permanent index number county intake lists look for, and closes with the signed and dated transfer tax exemption statement under paragraph (e) of 35 ILCS 200/31-45. A later instrument of revocation, and the notice of death affidavit a beneficiary may record under Section 75 after the second death, are prepared separately and are not included in this package.

The package includes the fillable transfer on death instrument, a completed example filled in for a realistic Will County fact pattern, and the guide covering each numbered section, the two-witness and notary formalities, and recording. The guide and this description explain the form and the Illinois statutes behind it in general terms and are not legal advice.