98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB0169
 
Introduced , by Rep. John E. Bradley
 
SYNOPSIS AS INTRODUCED:



755 ILCS 27/5
755 ILCS 27/35
755 ILCS 27/40
755 ILCS 27/75
755 ILCS 27/90

 Amends the Illinois Residential Real Property Transfer on Death Instrument Act. Defines "beneficiary's authorized representative" as an agent under a power of attorney, a standby guardian, a short-term or temporary guardian, an executor, an administrator, or an administrator to collect. Changes the definition of "residential real estate" to include, among other types of real estate, a residential condominium unit (instead of units in residential cooperatives or condominium units) including but not limited to the common elements allocated to that condominium unit and any parking unit or other amenity owned by the owner of the unit. Provides that an agency under a durable power of attorney or other instrument creating an agency does not have the authority to create or revoke a transfer on death instrument on behalf of the owner, provided that this provision shall not be construed to prohibit the agent from selling, transferring, or encumbering the residential real estate under the terms of the agency. Provides that if, following the death of an owner who executed a transfer on death instrument, a beneficiary or the beneficiary's authorized representative fails to file a notice of death affidavit and acceptance or a disclaimer within 6 months after the owner's death, any other beneficiary or the owner's estate may serve a written demand to file, pursuant to the Act, upon the beneficiary. Provides that if the beneficiary does not file an acceptance or a disclaimer within 30 days after receipt of the demand, the beneficiary will be deemed to have predeceased the owner with no descendants surviving. Provides that if a purchaser or mortgagee for value takes title to the property before the filing of any action to set aside the transfer on death instrument, the purchaser or mortgagee takes title to the property free and clear of any such action.



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A BILL FOR
 


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1 AN ACT concerning civil law.


2 Be it enacted by the People of the State of Illinois,

3represented in the General Assembly:



4 Section 5. The Illinois Residential Real Property Transfer 
5on Death Instrument Act is amended by changing Sections 5, 35, 
640, 75, and 90 as follows:

7 (755 ILCS 27/5)

8 Sec. 5. Definitions. In this Act:
9 "Beneficiary" means a person that receives residential 
10real estate under a transfer on death instrument.
11 "Beneficiary's authorized representative" means an agent 
12under a power of attorney, a guardian, a standby guardian, a 
13short-term or temporary guardian, an executor, an 
14administrator, or an administrator to collect. 
15 "Designated beneficiary" means a person designated to 
16receive residential real estate in a transfer on death 
17instrument.
18 "Joint owner" means an individual who owns residential real 
19estate concurrently with one or more other individuals with a 
20right of survivorship. The term includes a joint tenant or a 
21tenant by the entirety. The term does not include a tenant in 
22common.
23 "Owner" means an individual who makes a transfer on death 
 
 
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1instrument.
2 "Person" means an individual, corporation, business trust, 
3land trust, estate, inter-vivos revocable or irrevocable 
4trust, testamentary trust, partnership, limited liability 
5company, association, joint venture, public corporation, 
6government or governmental subdivision, agency, or 
7instrumentality, or any other legal or commercial entity.
8 "Residential real estate" means real property improved 
9with not less than one nor more than 4 residential dwelling 
10units; a residential condominium unit, units in residential 
11cooperatives; or, condominium units, including but not limited 
12to the limited common elements allocated to the exclusive use 
13thereof that form an integral part of the condominium unit and 
14any parking unit or other amenity used with and owned by the 
15owner of the residential condominium unit; or a single tract of 
16agriculture real estate consisting of 40 acres or less which is 
17improved with a single family residence.
18 "Transfer on death instrument" means an instrument 
19authorized under this Act.


20(Source: P.A. 97-555, eff. 1-1-12.)

21 (755 ILCS 27/35)

22 Sec. 35. Capacity of owner and agent's authority. The 
23capacity required to make or revoke a transfer on death 
24instrument is the same as the capacity required to make a will. 
25An agent Unless expressly authorized by the owner under a 
 
 
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1durable power of attorney or other similar instrument creating 
2an agency, an agent for an owner does not have the authority to 
3create or revoke a transfer on death instrument on behalf of 
4the owner. This Section shall not be construed to prohibit the 
5agent from selling, transferring, or encumbering the 
6residential real estate under the terms of the agency.

7(Source: P.A. 97-555, eff. 1-1-12.)

8 (755 ILCS 27/40)

9 Sec. 40. Requirements. 
10 (a) A transfer on death instrument:
11  (1) must contain the essential elements and 
12 formalities of a properly recordable inter vivos deed; and 
13 must be executed, witnessed, and acknowledged in 
14 substantial compliance with Section 45;
15  (2) must state that the transfer to the designated 
16 beneficiary is to occur at the owner's death; and
17  (3) must be recorded before the owner's death in the 
18 public records in the office of the recorder of the county 
19 or counties in which any part of the residential real 
20 estate is located.

21 (b) The failure to comply with any of the requirements of 
22subsection (a) will render the transfer on death instrument 
23void and ineffective to transfer title to the residential real 
24estate at the owner's death.

25(Source: P.A. 97-555, eff. 1-1-12.)

 
 
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1 (755 ILCS 27/75)

2 Sec. 75. Notice of death affidavit, acceptance and 
3effective date of transfer.  A transfer on death instrument is 
4effective as of the owner's death upon the filing of a notice 
5of death affidavit and acceptance by the beneficiary or 
6beneficiaries in the office of the recorder in the county or 
7counties where the residential real estate is located. The 
8notice of death affidavit and acceptance shall contain the 
9names name and addresses address of the each beneficiary or 
10beneficiaries who shall take under the transfer on death 
11instrument, a legal description of the property, the street 
12address, and parcel identification number of the residential 
13real estate, the name of the deceased owner, and the date of 
14death. Unless each beneficiary or beneficiary's authorized 
15representative files a separate notice of death affidavit and 
16acceptance, the The notice of death affidavit and acceptance 
17shall be signed by each beneficiary or by the beneficiary's 
18authorized representative. If a notice of death affidavit and 
19acceptance has not been filed by at least one beneficiary or by 
20a beneficiary's authorized representative in the office of the 
21recorder in the county or counties where the residential real 
22estate is located within 30 days after the owner's death, the 
23personal representative of the owner's estate, if any, may take 
24possession of the residential real estate in accordance with 
25Section 20-1 of the Probate Act of 1975, and shall be entitled 
 
 
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1to a lien for all reasonable costs and expenses incurred in the 
2management and care thereof provided that a reasonable attempt 
3to notify the beneficiary or beneficiaries has been made. 
4Unless the transfer on death instrument provides for a 
5different disposition for a non-acceptance, if If a beneficiary 
6or beneficiary's authorized representative fails to file a 
7notice of death affidavit and acceptance has not been filed by 
8at least one beneficiary or by the beneficiary's authorized 
9representative in the office of the recorder in the county or 
10counties where the residential real estate is located within 2 
11years after the owner's death, the transfer on death instrument 
12shall be void and ineffective as to that beneficiary's 
13interest, and the interest and the residential real estate 
14shall pass to the owner's estate as provided in paragraph (2) 
15of subsection (a) of Section 65 to be administered and 
16distributed in accordance with the terms thereof. If a 
17beneficiary or a beneficiary's authorized representative has 
18not filed a notice of death affidavit and acceptance or 
19disclaimer in accordance with the Disclaimer Under 
20Nontestamentary Instrument Act within 6 months after the date 
21of the owner's death, any co-beneficiary, contingent 
22beneficiary, legatee, heir, or personal representative of the 
23owner's estate may serve upon the beneficiary or the 
24beneficiary's authorized representative who has not filed a 
25notice of death affidavit and acceptance a written demand that 
26requires the beneficiary or the beneficiary's authorized 
 
 
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1representative to file a notice of death affidavit and 
2acceptance or disclaimer within 30 days after the date of the 
3service of the written demand. The demand shall include a copy 
4of the transfer on death instrument. If the beneficiary or an 
5authorized representative of the beneficiary fails to file a 
6notice of death affidavit and acceptance or disclaimer within 
730 days after the date of service of the demand, the 
8beneficiary shall be deemed to have predeceased the owner with 
9no descendants surviving. Service of the written demand may be 
10made by personal service or by registered or certified mail, 
11return receipt requested, in which case the date of service 
12shall be the date of receipt. 

13(Source: P.A. 97-555, eff. 1-1-12.)

14 (755 ILCS 27/90)

15 Sec. 90. Limitations. An action to set aside or contest the 
16validity of a transfer on death instrument shall be commenced 
17within the earlier of 2 years after the date of the owner's 
18death or 6 months from the date that letters of office are 
19issued. But a purchaser or mortgagee for value and without 
20notice before the commencement of any action or contest to set 
21aside the transfer on death instrument for any reason takes 
22free and clear of any such action or contest. 

23(Source: P.A. 97-555, eff. 1-1-12.)