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| Public Act 098-0821 | ||||
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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: | ||||
(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 | ||||
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.) | ||
(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 | ||
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.) | ||
(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 | ||
estate at the owner's death.
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(Source: P.A. 97-555, eff. 1-1-12.) | ||
(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.) | ||
(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 | ||
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. | ||
(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.) | ||
(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. | ||
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 | ||
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.) | ||||||||||||||||||||||||||||||||||||
(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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