Illinois General Assembly - Full Text of SB0047
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Full Text of SB0047  102nd General Assembly

SB0047enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
SB0047 EnrolledLRB102 04212 LNS 14229 b

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 1, 5,
610, 15, 20, 30, 35, 40, 45, 60, 65, 75, 85, 90, and 95 and by
7adding Sections 21 and 66 as follows:
 
8    (755 ILCS 27/1)
9    Sec. 1. Short title. This Act may be cited as the Illinois
10Residential Real Property Transfer on Death Instrument Act.
11(Source: P.A. 97-555, eff. 1-1-12.)
 
12    (755 ILCS 27/5)
13    Sec. 5. Definitions. In this Act:
14    "Beneficiary" means a person that receives real property
15residential real estate under a transfer on death instrument.
16    "Designated beneficiary" means a person designated to
17receive real property under residential real estate in a
18transfer on death instrument.
19    "Joint owner" means an individual who owns real property
20residential real estate concurrently with one or more other
21individuals with a right of survivorship. The term includes a
22joint tenant or a tenant by the entirety. The term does not

 

 

SB0047 Enrolled- 2 -LRB102 04212 LNS 14229 b

1include a tenant in common.
2    "Owner" means an individual who owns an interest in real
3property. "Owner" does not include a trustee or an individual
4acting in a fiduciary, representative, or agency capacity who
5holds an interest in real property who makes a transfer on
6death instrument.
7    "Person" means: an individual; a corporation; a business
8trust; a trustee of a land trust, a revocable or irrevocable
9trust, a trust created under a will or under a transfer on
10death instrument; a partnership; a limited liability company;
11an association; a joint venture; a public corporation; a
12government or governmental subdivision; an agency; an
13instrumentality; a guardian; a custodian designated or to be
14designated under any state's uniform transfers to minors act;
15or any other legal entity an individual, corporation, business
16trust, land trust, estate, inter-vivos revocable or
17irrevocable trust, testamentary trust, partnership, limited
18liability company, association, joint venture, public
19corporation, government or governmental subdivision, agency,
20or instrumentality, or any other legal or commercial entity.
21    "Real property" means an interest in realty located in
22this State capable of being transferred on the death of the
23owner.
24    "Residential real estate" means real property improved
25with not less than one nor more than 4 residential dwelling
26units; a residential condominium unit, including but not

 

 

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1limited to the common elements allocated to the exclusive use
2thereof that form an integral part of the condominium unit and
3any parking unit or units specified by the declaration to be
4allocated to a specific residential condominium unit; or a
5single tract of agriculture real estate consisting of 40 acres
6or less which is improved with a single family residence. If a
7declaration of condominium ownership provides for individually
8owned and transferable parking units, "residential real
9estate" does not include the parking unit of a specific
10residential condominium unit unless the parking unit is
11included in the legal description of the property being
12transferred by a transfer on death instrument.
13    "Transfer on death instrument" means an instrument
14authorized under this Act.
15(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15;
16revised 7-16-19.)
 
17    (755 ILCS 27/10)
18    Sec. 10. Applicability. This Act applies to only to the
19following:
20        (1) A a transfer of residential real estate as defined
21    in this Act by means of a transfer on death instrument made
22    before, on, or after January 1, 2012 the effective date of
23    this Act, by an owner dying on or after January 1, 2012 the
24    effective date of this Act.
25        (2) A transfer of real property by means of a transfer

 

 

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1    on death instrument made before, on, or after the
2    effective date of this amendatory Act of the 102nd General
3    Assembly by an owner dying on or after the effective date
4    of this amendatory Act of the 102nd General Assembly.
5(Source: P.A. 97-555, eff. 1-1-12.)
 
6    (755 ILCS 27/15)
7    Sec. 15. Non-exclusivity. This Act does not affect any
8method of transferring real property residential real estate
9otherwise permitted under the law of this State.
10(Source: P.A. 97-555, eff. 1-1-12.)
 
11    (755 ILCS 27/20)
12    Sec. 20. Transfer on death instrument authorized. An owner
13may transfer real property residential real estate by a
14transfer on death instrument to one or more beneficiaries in
15any form of ownership valid under State law, concurrent or
16successive, absolute or conditional, contingent or vested, as
17owners, concurrently or successively, and upon any
18contingency, effective at the owner's death.
19(Source: P.A. 97-555, eff. 1-1-12.)
 
20    (755 ILCS 27/21 new)
21    Sec. 21. Trust as beneficiary. A transfer of real property
22by a transfer on death instrument to a trustee of a trust that
23is in existence when the owner executes a transfer on death

 

 

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1instrument and that is identified in the transfer on death
2instrument, to a trustee of a trust created under the owner's
3will, to a trustee of a trust created under the transfer on
4death instrument, or to a trustee of a trust under the will of
5another individual if that individual has predeceased the
6owner, is permitted even if the trust is subject to amendment,
7modification, revocation, or termination. Unless the transfer
8on death instrument provides otherwise, the real property
9transferred shall be governed by the terms and provisions of
10the instrument creating the trust, including any amendments or
11modifications in writing made at any time before or after the
12execution of the owner's transfer on death instrument and
13after the death of the owner. The existence or lack thereof of
14a trust corpus is immaterial to the validity of the transfer by
15the transfer on death instrument. Unless the transfer on death
16instrument provides otherwise, a revocation or termination of
17the trust before the owner's death causes the transfer to the
18trust to pass to the owner's estate.
 
19    (755 ILCS 27/30)
20    Sec. 30. Transfer on death instrument nontestamentary. A
21transfer on death instrument is a nontestamentary instrument
22and is subject to all other laws governing or affecting
23transfers by nontestamentary instruments. A transfer on death
24instrument may not be admitted to probate as the will of the
25owner or as a codicil thereto.

 

 

SB0047 Enrolled- 6 -LRB102 04212 LNS 14229 b

1(Source: P.A. 97-555, eff. 1-1-12.)
 
2    (755 ILCS 27/35)
3    Sec. 35. Capacity of owner and agent's authority. The
4capacity required to make or revoke a transfer on death
5instrument is the same as the capacity required to make a will.
6An agent under a durable power of attorney or other instrument
7creating an agency, even if authorized, does not have the
8authority to create or revoke a transfer on death instrument
9on behalf of the owner. This Section shall not be construed to
10prohibit the agent from selling, transferring, or encumbering
11the real property residential real estate under the terms of
12the agency.
13(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
14    (755 ILCS 27/40)
15    Sec. 40. Requirements.
16    (a) A transfer on death instrument:
17        (1) must: (i) contain the essential elements and
18    formalities of a properly recordable inter vivos deed, but
19    does not need to state consideration or the addresses of
20    the beneficiaries; and (ii) must be executed, witnessed,
21    and acknowledged in substantial compliance with Section
22    45;
23        (2) must state that the transfer to the designated
24    beneficiary is to occur at the owner's death; and

 

 

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1        (3) must be recorded before the owner's death in the
2    public records in the office of the recorder of the county
3    or counties in which any part of the real property
4    residential real estate is located.
5    (b) The failure to comply with any of the requirements of
6subsection (a) will render the transfer on death instrument
7void and ineffective to transfer title to the real property
8residential real estate at the owner's death.
9(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
10    (755 ILCS 27/45)
11    Sec. 45. Signing, attestation, and acknowledgment
12acknowledgement.
13    (a) Every transfer on death instrument shall be signed by
14the owner or by some person in his or her presence and by his
15or her direction, and shall be attested in writing by 2 or more
16credible witnesses, and the whose signatures of the witnesses
17along with the owner's signature shall be acknowledged in
18front of by a notary public. The witnesses shall attest in
19writing substantially as follows: (i) that on the date thereof
20the owner executed the transfer on death instrument in the
21their presence of the witnesses; (ii) that the owner's
22execution was as his or her own free and voluntary act; , and
23(iii) that at the time of the execution, the witnesses
24believed the owner to be of sound mind and memory.
25    (b) Except as provided in subsection (c), if the transfer

 

 

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1on death instrument is not witnessed by at least 2 credible
2witnesses, it is not executed in substantial compliance with
3subsection (a) and is void.
4    (c) If a beneficiary, or his or her spouse, attests to the
5execution of the transfer on death instrument, the interest
6transferred to that beneficiary and all persons claiming under
7him or her is void as to that beneficiary unless the transfer
8on death instrument is otherwise duly attested by a sufficient
9number of witnesses as under subsection (a) exclusive of that
10person and the notary, and he or she may be compelled to
11testify as if the interest had not been given, but the
12beneficiary is entitled to receive so much of the interest or
13share given to him or her by the transfer on death instrument
14not to exceed the value or share that he or she would have
15received had no transfer on death instrument been established.
16(Source: P.A. 97-555, eff. 1-1-12.)
 
17    (755 ILCS 27/60)
18    Sec. 60. Effect of transfer on death instrument during
19owner's life.
20    (a) During an owner's life, a transfer on death instrument
21does not:
22            (1) affect the right or interest of the owner, any
23        other owner, or an agent for the owner to sell,
24        transfer, or encumber the real property residential
25        real estate;

 

 

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1            (2) affect an interest or right of a transferee,
2        lienholder, mortgagee, or option holder or grantee
3        even if the transferee, lienholder, mortgagee, or
4        option holder or grantee has actual or constructive
5        notice of the instrument;
6            (3) affect an interest or right of a secured or
7        unsecured creditor or future creditor of the owner,
8        even if the creditor has actual or constructive notice
9        of the instrument;
10            (4) affect the owner's or designated beneficiary's
11        eligibility for any form of public assistance;
12            (5) create a legal or equitable interest in favor
13        of the designated beneficiary; or
14            (6) subject the real property residential real
15        estate to claims or process of a creditor of the
16        designated beneficiary.
17     (b) If after recording a transfer on death instrument,
18the owner makes a contract for the sale or transfer of the real
19property residential real estate or some part thereof that is
20the subject of the transfer on death instrument and the whole
21or any part of the contract remains executory at the owner's
22death, the disposition of the real property residential real
23estate by the contract does not revoke the transfer on death
24instrument but the real property residential real estate
25passes to the designated beneficiary or beneficiary subject to
26the contract.

 

 

SB0047 Enrolled- 10 -LRB102 04212 LNS 14229 b

1(Source: P.A. 97-555, eff. 1-1-12.)
 
2    (755 ILCS 27/65)
3    Sec. 65. Effect of transfer on death instrument at owner's
4death.
5    (a) Except as otherwise provided in the transfer on death
6instrument, in this Act Section, or in the Probate Act of 1975,
7or in any other Act applicable to nontestamentary instruments,
8on the death of the owner, the following rules apply to the
9real property residential real estate that is the subject of a
10transfer on death instrument and owned by the owner at death:
11        (1) Subject to the beneficiary's right to disclaim the
12    transfer, the interest in the real property residential
13    real estate is transferred to the beneficiary in
14    accordance with the instrument.
15        (2) If the owner has identified 2 or more designated
16    beneficiaries to receive concurrent interests in the real
17    property, the interests are taken in equal and undivided
18    shares with no right of survivorship. If a designated
19    beneficiary fails to survive the owner or is not in
20    existence on the date of the owner's death, then except as
21    provided in paragraph (3) the residential real estate
22    shall pass to the owner's estate.
23        (3) Except as provided in paragraph (5), if the owner
24    has identified a single designated beneficiary and the
25    designated beneficiary fails to survive the owner or is

 

 

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1    not in existence on the date of the owner's death, then the
2    real property shall pass to the owner's estate. Unless the
3    owner provides otherwise, if the designated beneficiary is
4    a descendant of the owner who dies before the owner, the
5    descendants of the deceased designated beneficiary living
6    at the time of the owner's death shall take the
7    residential real estate per stirpes. If the designated
8    beneficiary is one of a class of designated beneficiaries,
9    and any member of the class dies before the owner, the
10    members of the class living when the owner dies shall take
11    the share or shares which the deceased member would have
12    taken if he or she were then living, except that if the
13    deceased member of the class is a descendant of the owner,
14    the descendants of the deceased member then living shall
15    take per stirpes the share or shares which the deceased
16    member would have taken if he or she were then living.
17        (4) Except as provided in paragraph (5), if the owner
18    has identified 2 or more designated beneficiaries to
19    receive concurrent interests, and one or more, but less
20    than all, designated beneficiaries predecease the owner,
21    then the interests of those that lapse or fail for any
22    reason are transferred to the other remaining designated
23    beneficiary or beneficiaries in proportion to the interest
24    of each in the remaining part of the real property held
25    concurrently.
26        (5) If the designated beneficiary who dies before the

 

 

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1    owner is a descendant of the owner, the descendants of the
2    deceased designated beneficiary living at the time of the
3    owner's death shall take the deceased designated
4    beneficiary's share of the real property per stirpes.
5    (b) Subject to the Probate Act of 1975 and the Conveyances
6Act, a beneficiary takes the real property residential real
7estate subject to all conveyances, encumbrances, assignments,
8contracts, options, mortgages, liens, and other interests to
9which the real property residential real estate is subject at
10the owner's death.
11    (c) A transfer on death instrument transfers real property
12residential real estate without covenant or warranty of title
13even if the instrument contains a contrary provision.
14    (d) If there is no sufficient evidence of the order of the
15owner and designated beneficiary's deaths, otherwise than
16simultaneously, and there is no other provision in the
17transfer on death instrument, for purposes of this Section,
18the designated beneficiary shall be deemed to have predeceased
19the owner.
20(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
21    (755 ILCS 27/66 new)
22    Sec. 66. Renunciation by spouse.
23    (a) Unless the right to renounce is waived by the owner's
24surviving spouse, a transfer on death instrument may be
25renounced by the owner's surviving spouse. If renounced, the

 

 

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1surviving spouse is entitled to a one-third interest in the
2real property transferred by the transfer on death instrument
3if the owner leaves a descendant or a one-half interest in the
4real property if the owner leaves no descendant. The surviving
5spouse may waive his or her right to renounce by executing a
6waiver as part of the transfer on death instrument.
7Notwithstanding the foregoing, a surviving spouse does not
8have the right to renounce a transfer on death instrument that
9transfers the owner's interest in real property to a trustee
10of a trust created under the owner's will or otherwise that is
11for the sole benefit of the surviving spouse during his or her
12lifetime.
13    (b) In order to renounce the transfer on death instrument,
14the owner's surviving spouse must file, in the recorder of
15deeds office where the transfer on death instrument is
16recorded, a written instrument signed by the surviving spouse
17setting forth a description of the real property and declaring
18the renunciation. The instrument shall be filed within 7
19months after the date of the owner's death, or within such
20additional time as a court having jurisdiction of the real
21property may grant pursuant to Section 2-8 of the Probate Act
22of 1975. The filing of the instrument renouncing the transfer
23on death instrument is a complete bar to any claim of the
24surviving spouse under the transfer on death instrument.
25    (c) If a transfer on death instrument is renounced under
26this Section, any future interest that is to take effect in

 

 

SB0047 Enrolled- 14 -LRB102 04212 LNS 14229 b

1possession or enjoyment at or after the termination of an
2estate or other interest given by the transfer on death
3instrument to the surviving spouse takes effect as though the
4surviving spouse had predeceased the owner, unless the
5transfer on death instrument expressly provides that in the
6case of renunciation the future interest shall not be
7accelerated.
8    (d) If the surviving spouse of the owner renounces the
9transfer on death instrument and the interests transferred to
10other persons are thereby diminished or increased, upon
11petition by a beneficiary, the court shall abate from or add to
12any interest transferred in such a manner as to apportion the
13loss or advantage among the beneficiaries in proportion to
14their respective interests.
 
15    (755 ILCS 27/75)
16    Sec. 75. Notice of death affidavit. Any beneficiary who
17takes under a transfer on death instrument may file in the
18office of the recorder in the county or counties where the real
19property residential real estate is located a notice of death
20affidavit to confirm title following the death of the owner.
21The notice of death affidavit shall contain the name and
22address, if known, of each beneficiary taking under the
23transfer on death instrument, the legal description of the
24property, the street address and parcel identification number
25of the real property residential real estate, if known, the

 

 

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1date of the transfer on death instrument and its recording
2document number, the name of the deceased owner, the date and
3place of death, and the name and address to which all future
4tax bills should be mailed. The affidavit shall be
5acknowledged under penalty of perjury before a notary public
6or person authorized to administer oaths. The filing of the
7notice of death affidavit is not a condition to the transfer of
8title.
9(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
10    (755 ILCS 27/85)
11    Sec. 85. Rights of creditors and statutory claimants. A
12beneficiary of a transfer on death instrument is subject to
13creditor, administrative, funeral and burial, and statutory
14claims to the same extent and in the same manner as a
15beneficiary of a trust that was revocable at the time of the
16settlor's death as provided in Section 505 of the Illinois
17Trust Code, except that if more than one real property is
18transferred by a transfer on death instrument, the liability
19will be apportioned among the real properties in proportion to
20the net values of the real properties at the time of the
21owner's death. A beneficiary of a transfer on death instrument
22is subject to the claims of creditors and statutory claimants
23to the same extent as a beneficiary of any nontestamentary
24transfer.
25(Source: P.A. 97-555, eff. 1-1-12.)
 

 

 

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1    (755 ILCS 27/90)
2    Sec. 90. Limitations and bona fide transfers.
3    (a) An action to set aside or contest the validity of a
4transfer on death instrument shall be commenced within the
5earlier of 2 years after the date of the owner's death or 6
6months from the date letters of office are issued pursuant to
7the Probate Act of 1975.
8    (b) A bona fide purchaser or mortgagee for value shall
9take the real property free and clear of any action, claim,
10liability, or contest if the transfer to the bona fide
11purchaser or mortgagee for value occurs prior to the recording
12of a lis pendens under Section 2-1901 of the Code of Civil
13Procedure or prior to the filing of the a notice of
14renunciation pursuant to Section 66 of this Act.
15An action to set aside or contest the validity of a transfer on
16death instrument shall be commenced within the earlier of 2
17years after the date of the owner's death or 6 months from the
18date that letters of office are issued. However, a purchaser
19or mortgagee for value and without notice before the
20recordation of a lis pendens for an action to set aside or
21contest the transfer on death instrument for any reason shall
22take free and clear of any such action or contest.
23(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
24    (755 ILCS 27/95)

 

 

SB0047 Enrolled- 17 -LRB102 04212 LNS 14229 b

1    Sec. 95. Preparation of a transfer on death instrument or
2its revocation. A transfer on death instrument or its
3revocation shall be prepared only by a an Illinois licensed
4attorney. Nothing in this Section, however, shall prohibit an
5owner from preparing his or her own transfer on death
6instrument or revocation, or shall render the transfer on
7death instrument void for failing to be prepared by a licensed
8attorney.
9(Source: P.A. 97-555, eff. 1-1-12.)

 

 

SB0047 Enrolled- 18 -LRB102 04212 LNS 14229 b

1 INDEX
2 Statutes amended in order of appearance
3    755 ILCS 27/1
4    755 ILCS 27/5
5    755 ILCS 27/10
6    755 ILCS 27/15
7    755 ILCS 27/20
8    755 ILCS 27/21 new
9    755 ILCS 27/30
10    755 ILCS 27/35
11    755 ILCS 27/40
12    755 ILCS 27/45
13    755 ILCS 27/60
14    755 ILCS 27/65
15    755 ILCS 27/66 new
16    755 ILCS 27/75
17    755 ILCS 27/85
18    755 ILCS 27/90
19    755 ILCS 27/95