Illinois Notice of Death Affidavit

Introduction

Key Things to Know

1. 1

   Notice of death affidavit is the heading 755 ILCS 27/75 carries, current since Public Act 102-68 took effect January 1, 2022, and it fits one fact pattern only: the deceased owner recorded a TODI during life, and the beneficiary named in that TODI files afterward to confirm title. Section 40 required the TODI to be recorded before the owner's death, so check its recording date first. This is not an all-purpose Illinois affidavit of death.

2. 2

   Section 75 prescribes seven contents. The name and address, if known, of each beneficiary taking under the TODI. The legal description of the property. The street address and parcel identification number, if known. The date of the TODI and its recording document number. The name of the deceased owner. The date and place of death. And the name and address to which all future tax bills should be mailed. Two of the seven are copied straight off the recorded instrument, so retrieve it before drafting.

3. 3

   No death certificate is called for. Nowhere in 755 ILCS 27 is a death certificate, a certified copy or a certificate of death called for. Order certified copies anyway, because the bank and the township assessor will each want one, but 55 ILCS 5/3-5018.2 sets a document standard reading that the document shall not have any attachment stapled or otherwise affixed to any page, so do not fasten one to the affidavit.

4. 4

   One notary, no witnesses. Section 75 requires the affidavit to be acknowledged under penalty of perjury before a notary public or person authorized to administer oaths. Do not import the witness rule from Section 45(a), which calls for 2 or more credible witnesses attesting in writing to three specific recitals, and which Section 45(b) backs with voidness. Section 45 is headed signing, attestation and acknowledgment, and it governs the TODI.

5. 5

   There is no Illinois form number. The Act's statutory form section, 755 ILCS 27/100, reads Repealed, by Public Act 98-821 effective January 1, 2015. The Cook County Clerk publishes an unnumbered two-page sheet headed Notice of Death Affidavit and Acceptance of Transfer on Death Instrument (TODI) Deed, stamped a non-mandatory courtesy form, which takes the parcel identification number in four segments and gives each beneficiary a name, address and share line.

6. 6

   A surviving spouse has a separate right that runs at the same counter. Section 66 lets the owner's surviving spouse renounce the TODI unless the right was waived, taking a one-third interest if the owner left a descendant and a one-half interest if not. The renunciation is a signed written instrument describing the property, filed in the recorder of deeds office where the TODI is recorded, within 7 months after the date of death, or longer if a court grants it under Section 2-8 of the Probate Act of 1975.

7. 7

   Recording this affidavit does not clear the estate's debts. Section 85 subjects the beneficiary to creditor, administrative, funeral and burial, and statutory claims to the same extent as a beneficiary of a trust that was revocable at the settlor's death under Section 505 of the Illinois Trust Code, and where several parcels passed under one TODI it apportions that liability among them in proportion to their net values at the owner's death.

Illinois Requirements for Affidavit of Death

• The Name of the Deceased Owner, and the Date and Place of Death

  Three of the seven items 755 ILCS 27/75 prescribes, and the only ones about the death itself. Give the full legal name as it appears on the recorded transfer on death instrument, plus any variant, and state the date and the place of death. Illinois asks you to swear these facts rather than document them: the Act nowhere requires a death certificate or a certified copy to be attached.

• The Legal Description, the Street Address and the Parcel Identification Number

  Section 75 requires the legal description of the property, and the street address and parcel identification number if known. Copy the legal description character for character from the recorded instrument rather than from a tax bill. The Cook County courtesy form prints the parcel identification number in four separate segments and notes that you may attach an exhibit if the legal description needs more room.

• The Transfer on Death Instrument's Date and Recording Document Number

  Two more statutory contents, and the pair that ties this affidavit to the document that actually moved the title. You need the date the deceased owner signed the transfer on death instrument and the document number under which it was recorded in that county. Retrieve the recorded instrument before you start drafting. Its own text decides who the beneficiaries are, and Section 40 required it to have been recorded before the owner's death.

• Each Beneficiary's Name and Address, and the Share Taken

  Section 75 requires the name and address, if known, of each beneficiary taking under the instrument. The Cook County form adds a share column, which matters because Section 65(a)(2) provides that where the owner named two or more beneficiaries to take concurrent interests, the interests are taken in equal and undivided shares with no right of survivorship. If a single named beneficiary did not survive the owner, Section 65(a)(3) sends the property to the owner's estate instead, and this affidavit is not the right route.

• Where All Future Tax Bills Should Be Mailed

  The seventh and last statutory content item, and the one most often skipped: the name and address to which all future tax bills should be mailed. The Cook County courtesy form puts it in a header block at the top of page one, labeled MAIL SUBSEQUENT TAX BILLS TO. Getting it wrong is how a new owner misses a first installment on a property they already own.

• A Notary, and No Witnesses

  Section 75 requires that the affidavit be acknowledged under penalty of perjury before a notary public or person authorized to administer oaths. Nothing more. Do not add witnesses on the strength of Section 45(a), which requires two or more credible witnesses plus a notary and which Section 45(b) backs with voidness: that section is headed signing, attestation and acknowledgment, and it governs the transfer on death instrument itself. Only a beneficiary who takes under the instrument may sign the affidavit.

• Formatting the Recorder Will Take, and the Fee Floor

  55 ILCS 5/3-5018.2 sets Illinois document standards for first and second class counties: individual sheets measuring 8.5 by 11 inches, legible black ink, white paper of not less than 20-pound weight, a clean margin of at least one half inch on the top, bottom and each side, a blank space of at least 3 inches by 5 inches from the upper right corner of the first page, and no attachment stapled or otherwise affixed to any page. The same section sets a floor rather than a price: every document class it lists carries an aggregate fee of not less than 31 dollars, being a minimum 13 dollar county fee plus 18 dollars for the Rental Housing Support Program State surcharge. Your county ordinance sets the actual amount.

• What Recording It Does Not Settle

  Three Illinois provisions keep running after the affidavit is on record. Section 85 subjects the beneficiary to creditor, administrative, funeral and burial, and statutory claims to the same extent as a beneficiary of a trust that was revocable at the settlor's death under Section 505 of the Illinois Trust Code. Section 66 lets a surviving spouse who did not waive the right renounce the transfer on death instrument, taking one third of the property if the owner left a descendant and one half if not, by filing a signed written instrument in the same recorder of deeds office within 7 months after the date of death. And Section 90(a) allows an action to set aside or contest the instrument within the earlier of 2 years after the death or 6 months from the issuance of letters of office. Attorney review is available as an option if any of those three are live in your situation.