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| Public Act 098-0821
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| SB2656 Enrolled | LRB098 14731 HEP 50789 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Residential Real Property Transfer |
on Death Instrument Act is amended by changing Sections 5, 35, |
40, 50, 65, 75, and 90 as follows:
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(755 ILCS 27/5)
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Sec. 5. Definitions. In this Act: |
"Beneficiary" means a person that receives residential |
real estate under a transfer on death instrument. |
"Designated beneficiary" means a person designated to |
receive residential real estate in a transfer on death |
instrument. |
"Joint owner" means an individual who owns residential real |
estate concurrently with one or more other individuals with a |
right of survivorship. The term includes a joint tenant or a |
tenant by the entirety. The term does not include a tenant in |
common. |
"Owner" means an individual who makes a transfer on death |
instrument. |
"Person" means an individual, corporation, business trust, |
land trust, estate, inter-vivos revocable or irrevocable |
trust, testamentary trust, partnership, limited liability |
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company, association, joint venture, public corporation, |
government or governmental subdivision, agency, or |
instrumentality, or any other legal or commercial entity. |
"Residential real estate" means real property improved |
with not less than one nor more than 4 residential dwelling |
units; a residential condominium unit, units in residential |
cooperatives; or, condominium units, including but not limited |
to the limited common elements allocated to the exclusive use |
thereof that form an integral part of the condominium unit and |
any parking unit or units specified by the declaration to be |
allocated to a specific residential condominium unit; or a |
single tract of agriculture real estate consisting of 40 acres |
or less which is improved with a single family residence. If a |
declaration of condominium ownership provides for individually |
owned and transferable parking units, "residential real |
estate" does not include the parking unit of a specific |
residential condominium unit unless the parking unit is |
included in the legal description of the property being |
transferred by a transfer on death instrument. |
"Transfer on death instrument" means an instrument |
authorized under this Act.
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(Source: P.A. 97-555, eff. 1-1-12.)
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(755 ILCS 27/35)
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Sec. 35. Capacity of owner and agent's authority. The |
capacity required to make or revoke a transfer on death |
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instrument is the same as the capacity required to make a will. |
An agent Unless expressly authorized by the owner under a |
durable power of attorney or other similar instrument creating |
an agency, an agent for an owner does not have the authority to |
create or revoke a transfer on death instrument on behalf of |
the owner. This Section shall not be construed to prohibit the |
agent from selling, transferring, or encumbering the |
residential real estate under the terms of the agency.
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(Source: P.A. 97-555, eff. 1-1-12.)
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(755 ILCS 27/40)
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Sec. 40. Requirements. |
(a) A transfer on death instrument: |
(1) must contain the essential elements and |
formalities of a properly recordable inter vivos deed; and |
must be executed, witnessed, and acknowledged in |
substantial compliance with Section 45; |
(2) must state that the transfer to the designated |
beneficiary is to occur at the owner's death; and |
(3) must be recorded before the owner's death in the |
public records in the office of the recorder of the county |
or counties in which any part of the residential real |
estate is located.
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(b) The failure to comply with any of the requirements of |
subsection (a) will render the transfer on death instrument |
void and ineffective to transfer title to the residential real |
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estate at the owner's death.
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(Source: P.A. 97-555, eff. 1-1-12.)
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(755 ILCS 27/50)
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Sec. 50. Notice, delivery, acceptance, or consideration |
not required. A transfer on death instrument is effective |
without: |
(1) notice or delivery to or acceptance by the |
designated beneficiary during the owner's life; or |
(2) consideration.
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(Source: P.A. 97-555, eff. 1-1-12.)
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(755 ILCS 27/65)
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Sec. 65. Effect of transfer on death instrument at owner's |
death.
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(a) Except as otherwise provided in the transfer on death |
instrument, in this Section, or in the Probate Act of 1975 or |
any other Act applicable to nontestamentary instruments, on the |
death of the owner, the following rules apply to residential |
real estate that is the subject of a transfer on death |
instrument and owned by the owner at death: |
(1) Subject to the beneficiary's right to disclaim or |
refuse to accept the transfer, the interest in the |
residential real estate is transferred to the beneficiary |
in accordance with the instrument. |
(2) If a designated beneficiary fails to survive the |
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owner or is not in existence on the date of the owner's |
death, then except as provided in paragraph (3) the |
residential real estate shall pass to the owner's estate. |
(3) Unless the owner provides otherwise, if the |
designated beneficiary is a descendant of the owner who |
dies before the owner, the descendants of the deceased |
designated beneficiary living at the time of the owner's |
death shall take the residential real estate per stirpes. |
If the designated beneficiary is one of a class of |
designated beneficiaries, and any member of the class dies |
before the owner, the members of the class living when the |
owner dies shall take the share or shares which the |
deceased member would have taken if he or she were then |
living, except that if the deceased member of the class is |
a descendant of the owner, the descendants of the deceased |
member then living shall take per stirpes the share or |
shares which the deceased member would have taken if he or |
she were then living. |
(b) Subject to the Probate Act of 1975 and the Conveyances |
Act, a beneficiary takes the residential real estate subject to |
all conveyances, encumbrances, assignments, contracts, |
options, mortgages, liens, and other interests to which the |
residential real estate is subject at the owner's death. |
(c) A transfer on death instrument transfers residential |
real estate without covenant or warranty of title even if the |
instrument contains a contrary provision. |
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(d) If there is no sufficient evidence of the order of the |
owner and designated beneficiary's deaths, otherwise than |
simultaneously, and there is no other provision in the transfer |
on death instrument, for purposes of this Section, the |
designated beneficiary shall be deemed to have predeceased the |
owner.
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(Source: P.A. 97-555, eff. 1-1-12.)
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(755 ILCS 27/75)
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Sec. 75. Notice of death affidavit, acceptance and |
effective date of transfer. Any beneficiary who takes under a |
transfer on death instrument may file in the office of the |
recorder in the county or counties where the residential real |
estate is located a notice of death affidavit to confirm title |
following the death of the owner. The notice of death affidavit |
shall contain the name and address, if known, of each |
beneficiary taking under the transfer on death instrument, the |
legal description of the property, the street address and |
parcel identification number of the residential real estate, if |
known, the date of the transfer on death instrument 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. The affidavit shall be |
acknowledged under penalty of perjury before a notary public or |
person authorized to administer oaths. The filing of the notice |
of death affidavit is not a condition to the transfer of title. |
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A transfer on death instrument is effective as of the owner's |
death upon the filing of a notice of death affidavit and |
acceptance by the beneficiary or beneficiaries in the office of |
the recorder in the county or counties where the residential |
real estate is located. The notice of death affidavit and |
acceptance shall contain the name and address of each |
beneficiary who shall take under the transfer on death |
instrument, a legal description of the property, the street |
address, and parcel identification number of the residential |
real estate, the name of the deceased owner, and the date of |
death. The notice of death affidavit and acceptance shall be |
signed by each beneficiary or by the beneficiary's authorized |
representative. If a notice of death affidavit and acceptance |
has not been filed by at least one beneficiary or by a |
beneficiary's authorized representative in the office of the |
recorder in the county or counties where the residential real |
estate is located within 30 days after the owner's death, the |
personal representative of the owner's estate, if any, may take |
possession of the residential real estate in accordance with |
Section 20-1 of the Probate Act of 1975, and shall be entitled |
to a lien for all reasonable costs and expenses incurred in the |
management and care thereof provided that a reasonable attempt |
to notify the beneficiary or beneficiaries has been made. If a |
notice of death affidavit and acceptance has not been filed by |
at least one beneficiary or by the beneficiary's authorized |
representative in the office of the recorder in the county or |
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counties where the residential real estate is located within 2 |
years after the owner's death, the transfer on death instrument |
shall be void and ineffective and the residential real estate |
shall pass to the owner's estate as provided in paragraph (2) |
of subsection (a) of Section 65 to be administered and |
distributed in accordance with the terms thereof.
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(Source: P.A. 97-555, eff. 1-1-12.)
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(755 ILCS 27/90)
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Sec. 90. Limitations. An action to set aside or contest the |
validity of a transfer on death instrument shall be commenced |
within the earlier of 2 years after the date of the owner's |
death or 6 months from the date that letters of office are |
issued. However, a purchaser or mortgagee for value and without |
notice before the recordation of a lis pendens for an action to |
set aside or contest the transfer on death instrument for any |
reason shall take free and clear of any such action or contest.
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(Source: P.A. 97-555, eff. 1-1-12.)
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(755 ILCS 27/100 rep.) |
Section 10. The Illinois Residential Real Property |
Transfer on Death Instrument Act is amended by repealing |
Section 100.
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INDEX
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Statutes amended in order of appearance
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