Should You Use a Transfer-on-Death Instrument Instead of a Will?

 Posted on February 25, 2026 in Estate Planning

A transfer-on-death instrument can allow your home to pass directly to a beneficiary. According to the American Bar Association, avoiding probate is one of the primary reasons people use transfer-on-death instruments and other non-probate transfers. This is likely because probate can take months or longer to complete, depending on the estate.

This can make the transfer process faster and simpler for your family. However, a transfer-on-death instrument does not replace a will in every situation. If you are planning your estate in 2026, our Englewood, IL estate planning lawyer can help you decide which option best protects your property and your loved ones.

What Is a Transfer-on-Death Instrument in Illinois?

A transfer on death instrument, or TODI, is a legal document that allows you to name a beneficiary who will receive your real estate when you pass away. The transfer happens automatically after your death without requiring probate for that property.

Illinois law allows this under the Illinois Residential Real Property Transfer on Death Instrument Act. This law applies to residential real estate, including single-family homes and certain multi-unit residential properties.

You remain the legal owner during your lifetime. The beneficiary has no ownership rights while you are alive. You can sell the property, refinance it, or revoke the TODI at any time.

How Is a Transfer-on-Death Instrument Different From a Will?

A transfer-on-death instrument and a will both allow you to transfer property after death. However, they work in different ways. A will must go through probate before assets are distributed. A TODI does not.

A TODI only applies to real estate. A will can distribute many types of assets, including bank accounts, personal belongings, and other property.

What Are the Benefits of Using a Transfer on Death Instrument?

A transfer-on-death instrument offers several advantages for property owners who want a simpler way to transfer real estate.

In addition to skipping probate, a transfer on death instrument allows the beneficiary to receive ownership more quickly after your death. It also lets you keep full ownership and control of the property during your lifetime, so you can continue to use, sell, or refinance it if needed.

Avoiding probate can reduce delays and simplify the process for your family. It can also reduce administrative burdens during an already difficult time. This option is often helpful for homeowners who want to leave their property to a specific person without creating unnecessary legal complications.

Are There Situations Where a Will Is Still Necessary Even With a Transfer-on-Death Instrument?

A transfer-on-death instrument only applies to real estate. Most people still need a will to cover other important estate planning matters.

A will allows you to:

• Distribute personal property and financial assets.
• Name an executor to manage your estate.
• Appoint guardians for minor children.

Without a will, Illinois intestate succession law under 755 ILCS 5/2-1 determines who receives your assets. This may not reflect your personal wishes. Using both a will and a transfer-on-death instrument together can provide more complete protection for your estate.

What Happens if You Do Not Use a Transfer-on-Death Instrument or a Will?

If you do not use either option, your property will go through probate and be distributed according to Illinois law. This process may take longer and may not align with your preferences.

The probate court will decide who receives your assets based on legal priority. This may include spouses, children, or other relatives. You will not have control over how property is distributed.

Estate planning allows you to make these decisions yourself instead of leaving them to the court.

Schedule a Free Consultation With Our Roseland, IL Estate Planning Attorney

Planning your estate requires you to make many important decisions. At The Sherrod Law Firm, Ltd., we help clients understand their estate planning options and protect their property. Attorney Sherrod walks clients through important legal matters. Many clients return for continued estate planning support. She also has a strong passion for working with seniors and helping them protect their assets and future.

Call 312-321-6910 to schedule a free consultation with our Englewood, IL estate planning lawyer and learn how to create an estate plan that protects your property and your family.