Illinois Deed Forms for Real Estate Transfers

What types of deeds are used to transfer Illinois real estate?

The primary method for transferring Illinois real estate is for the current owner to create and record a deed. An Illinois deed transfers property from one or more current owners (grantors) to one or more new owners (grantees). The three main types of deeds for transferring Illinois real estate during the owner’s life—quitclaim deeds, special warranty deeds, and warranty deeds—are distinguished by the warranty of title (if any) each deed offers.

A warranty of title is a guarantee that the grantor gives to the grantee within some deeds. A deed with a strong warranty protects the new owner by keeping some or all risk of title problems with the prior owner who transferred the property. A deed with a weak or no warranty places some or all risk of title problems on the new owner.

Illinois Quitclaim Deed Form

An Illinois quit claim deed form transfers real estate with no warranty of title. The new owner receives whatever interest the grantor actually has (if any), but the deed provides no guarantees about the property’s title or that the grantor actually owns the property.¹ A new owner who takes title through a quitclaim deed bears all risk of title problems.

Illinois Warranty Deed Form

An Illinois warranty deed form transfers real estate with a complete warranty of title. The complete warranty covers all potential title problems that the deed does not specifically exclude.² The grantor bears all title-related risk—even for issues that arose before the grantor owned the property.

Illinois Special Warranty Deed Form

An Illinois special warranty deed form transfers real estate with a partial warranty (called a limited warranty). The limited warranty guarantees that the grantor has done nothing to cause a problem with the property’s title.³ The grantor agrees to be legally responsible for any title issues derived from the grantor’s ownership of the property. The new owner bears the risk of title problems that may have arisen earlier in the property’s ownership history.

What types of estate planning deeds are used in Illinois?

Estate-planning deeds are designed to transfer real estate when the owner dies without going through probate. Illinois recognizes three main types of estate-planning deeds. Each deed differs in the amount of control the owner keeps over the property during life.

Illinois Transfer-on-Death (TOD) Deed Form

An Illinois transfer-on-death (TOD) deed form names a beneficiary who will inherit the property upon the current owner’s death.⁴ The Illinois statute uses the name transfer-on-death instrument (sometimes abbreviated TODI) for TOD deeds.

An Illinois TOD instrument lets property bypass probate without sacrificing any of the owner’s rights in the property during life.⁵ Until his or her death, the owner can sell, transfer, or mortgage the property or revoke or amend the TOD deed.⁶

Illinois Life Estate Deed Form

An Illinois life estate deed form divides real estate ownership into two separate interests. The first interest (the life estate) gives the interest holder (the life tenant) the right to own the property until his or her death. The second interest (the remainder) gives the interest holder (the remainder beneficiary or remainderman) the right to own the property when the life tenant dies.

A property owner who creates a life estate deed for an estate plan typically keeps the life estate and gives the remainder to a family member. The owner (as the life tenant) retains possession of the property until death. However, the life tenant cannot sell, transfer, or mortgage the property unless the remainder beneficiary agrees to the transaction.⁷

Illinois Survivorship Deed Form

The name survivorship deed refers to a type of deed that transfers title to multiple co-owners with a right of survivorship.⁸ When co-owners have a right of survivorship, a deceased co-owner’s interest automatically passes to the surviving co-owner at death.⁹ The deceased co-owner’s interest does not go through probate. Illinois recognizes two co-ownership forms that include a right of survivorship—called joint tenancy and tenancy by the entirety.

An owner who uses a survivorship deed in an estate plan typically transfers the property to himself or herself and to the owner’s spouse or another family member. When either co-owner dies, the other co-owner holds complete title to the property. The downside of survivorship deeds is that the co-owner added to the title owns the property once the deed is created and recorded. The new co-owner has ownership rights in the property that may limit the original owner’s control of the property during life.

What are the ways that multiple owners can hold title to Illinois real estate?

More than one owner may own the same parcel of real estate. Illinois recognizes three forms of co-ownership that allow multiple owners to hold title to the same property.

Tenancy in Common

Tenancy in common is the default co-ownership form in Illinois. A deed to multiple owners creates a tenancy in common unless the deed expressly declares another co-ownership form.¹⁰ Co-owners who are tenants in common each have an undivided interest in the property. A tenant in common’s interest passes to his or her probate estate upon death. Tenancy in common is available to all owners, including trusts and businesses.

Joint Tenancy with Right of Survivorship

Joint tenancy with right of survivorship—sometimes shortened to joint tenancy—provides for a right of survivorship between the co-owners (called joint tenants). Each joint tenant has an undivided ownership interest that passes to the other owner(s) at death. An Illinois deed must expressly declare that the co-owners are joint tenants in order to create the right of survivorship.¹¹

Because a joint tenancy with right of survivorship includes survivorship rights—and because people can only survive other people—joint tenancy with right of survivorship is not available to an owner that is a trust or business.

Tenancy by the Entirety

Tenancy by the entirety is similar to joint tenancy except that it is only available for married spouses and it may provide additional protection against creditors.¹² Like joint tenancy, tenancy by the entirety creates a right of survivorship between the spouses, so the surviving spouse becomes the sole owner of the property. A married couple who hold title as tenants by the entirety own the property as a unit, and one spouse cannot convey an interest in the property without the other spouse’s consent.

A tenancy by the entirety becomes a tenancy in common if the couple divorces.¹³ An Illinois deed that transfers real estate to co-owners who are not married and declares a tenancy by the entirety creates a joint tenancy.¹⁴

What are the rules for spousal ownership of Illinois real estate?

There are often special rules that govern deeds and real estate ownership when an owner is married. A married individual who owns or acquires Illinois real estate should consider the spousal-ownership rules when titling property or creating an estate plan. Illinois law allows spouses to create a prenuptial agreement that addresses their property rights and provides for disposition of assets in the event of death or divorce.¹⁵

Marital Property Ownership in Illinois

Illinois is a separate property state (not a community property state) and no longer recognizes the traditional rights of dower and curtesy.¹⁶ Thus, the general rule is that Illinois real estate titled in only one spouse’s name belongs exclusively to that spouse. A spouse that is not listed on the deed (the non-owner spouse) has no ownership interest in the property. However, a spouse who does not own the real estate may still have other rights in his or her spouse’s property.

Homestead Rights

Illinois provides preferred legal status for property that is used as a primary residence (homestead).¹⁷ If a property qualifies as an Illinois homestead, an owner spouse cannot transfer the property unless the non-owner spouse joins in the deed or signs a written release of his or her homestead rights.¹⁸ A non-owner spouse’s signature is needed even if only one spouse is listed on the prior deed.

Spousal Inheritance Rights

Like other states, Illinois gives significant inheritance rights to a surviving spouse—which may include the right to inherit real estate. If a deceased spouse leaves no will (dies intestate), the surviving spouse receives either one-half of the estate (if there are surviving descendants) or one-third of the estate (if there are no surviving descendants).¹⁹

If the deceased spouse leaves a will, the surviving spouse can accept the share under the will or renounce the will and claim a statutory share.²⁰ A surviving spouse’s guaranteed share if he or she renounces the will is the equivalent of what many states call an elective share. The share amount is comparable to a spouse’s intestate share: one-half if there are no surviving descendants or one-third if there are surviving descendants.

Illinois law also provides for a spouse’s award—an amount set aside for the support of the surviving spouse for nine months after the deceased spouse’s death. The spouse’s award “may in no case be less than $20,000.”²¹

Where are deeds filed in Illinois?

Each Illinois county has a county recorder who receives deeds for recording and keeps the county’s land records.²² A deed must be filed with the recorder for the county where the property is located.²³ The county clerk serves as recorder in counties with populations under 60,000.²⁴

Deeds should always be properly recorded, as recording is needed to provide official notice of the transfer to creditors and subsequent purchasers—which protects the new owner’s interest.²⁵

How much does it cost to file an Illinois deed?

The cost to record an Illinois deed varies between counties and depends on the nature of the deed. The standard fee is $12.00 for up to four pages, plus $1.00 for each additional page.²⁶ There are also multiple surcharges for many deeds—such as a $3.00 document storage fee, $3.00 mapping fee, and $18.00 Rental Housing Support Program State surcharge. Illinois authorizes counties to adopt ordinances increasing the recording fees if a cost study shows that the increase is justified.

In practice, the recording fee for most deeds is around $50.00.

Does Illinois charge a transfer tax on real estate transfers?

Illinois charges a real estate transfer tax on transfers of Illinois real estate. Transfer tax is paid by purchasing Department of Revenue stamps from the county recorder at the time of recording.²⁷

The transfer tax rate is $0.50 per $500 of value stated in the Transfer Tax Declaration at the state level, and counties may charge a county transfer tax at $0.25 per $500 of value.²⁸ Municipalities may also charge a municipal transfer tax if the property is in a municipality that collects a real estate transfer tax.

Illinois law exempts certain categories of deeds from transfer tax. Common types of exempt deeds include:

• Deeds for actual consideration that is less than $100.00;
• Deeds that confirm, correct modify, or supplement a prior deed with no additional consideration;
• Deeds from a subsidiary to a parent corporation for no consideration other than cancellation of the subsidiary’s stock; and
• Deeds to mortgage holders in foreclosure proceedings and deeds in lieu of foreclosure.²⁹

Does Illinois require any other form when recording a deed?

Illinois requires a completed transfer tax declaration (Dept. of Revenue Form PTAX-203) with most deeds.³⁰ The declaration includes information about the property and transfer—including the property value used to calculate transfer tax. At least one seller and at least one buyer (or their attorneys or agents) must sign the transfer tax declaration. The transfer tax declaration can be completed online and printed or filled out in paper form.

1. 765 ILCS 5/10.
2. 765 ILCS 5/9.
3. 765 ILCS 5/8.
4. 755 ILCS 27/20.
5. 755 ILCS 27/60.
6. 755 ILCS 27/25.
7. First United Pres. Church v. Christenson, 64 Ill. 2d 491 (Ill. 1976).
8. 765 ILCS 1005/1b.
9. 765 ILCS 1005/1.
10. 765 ILCS 1005/1.
11. 765 ILCS 1005/1.
12. 765 ILCS 1005/1c.
13. Id.
14. Id.
15. 750 ILCS 10/4.
16. 755 ILCS 5/2-9.
17. See 735 ILCS 5/12-901.
18. 735 ILCS 5/12-904; 765 ILCS 5/27 (a deed does not waive homestead rights absent an express waiver, and one spouse cannot waive the other spouse’s homestead rights).
19. 755 ILCS 5/2-1.
20. 755 ILCS 5/2-8.
21. 755 ILCS 5/15-1.
22. 55 ILCS 5/3-5010.
23. 765 ILCS 5/28.
24. 55 ILCS 5/3-5001.
25. 765 ILCS 5/30.
26. 55 ILCS 5/3-5018.
27. 35 ILCS 200/31-15.
28. 35 ILCS 200/31-10.
29. 35 ILCS 200/31-45.
30. 35 ILCS 200/31-25.