Execution and recording are validity requirements
A TODI must be signed by the owner or a permitted signer, attested in writing by two or more credible witnesses, acknowledged before a notary, and recorded before the owner dies in the recorder's office for the property's county (755 ILCS 27/45).
An instrument without at least two credible witnesses is void, and a beneficiary or that beneficiary's spouse who acts as an attesting witness has that interest voided unless the instrument is otherwise sufficiently witnessed (755 ILCS 27/45).
Record before death: Illinois's TODI is a nontestamentary instrument and cannot be admitted to probate as a will or codicil, but it must meet the statutory signing, witness, notary, and recording formalities (
755 ILCS 27/45;
Illinois TODI Act).
Passing outside probate does not erase creditor exposure
Under 755 ILCS 27/85, a TODI beneficiary takes property subject to creditor and statutory-claimant claims to the same extent as a beneficiary of a revocable trust, with apportioned liability when multiple properties are transferred (755 ILCS 27/85).
HFS states that its estate recovery reaches probate property only and does not use the optional expanded-estate definition that would include non-probate assets such as joint tenancy, trust assets, or transfer-on-death designations (HFS estate-recovery guide).
TODI and Medicaid recovery is an inference, not a promised result
Because HFS describes probate-only recovery and a properly executed TODI passes outside probate, it is reasonable to infer that TODI property generally falls outside HFS's direct probate-estate claim; HFS does not expressly state this result for TODIs, however (HFS estate-recovery guide; 755 ILCS 27/85).
The creditor-claims statute means a TODI should not be presented as automatic protection if the probate estate is insufficient, and the precise HFS interaction requires individualized legal advice. For contrast, see Florida's Lady Bird deed page and the broader The Home pillar.
Not mutually exclusive. Most families combine two or three funding pillars — this one rarely stands alone.
The
Journey Assessment ranks all ten pillars against your specific situation and
recommends the top three.
