Full Text of HB5282 96th General Assembly
HB5282 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB5282
Introduced 2/3/2010, by Rep. Michael G. Connelly SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/12-112 |
from Ch. 110, par. 12-112 |
765 ILCS 1005/1c |
from Ch. 76, par. 1c |
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Amends the Code of Civil Procedure. Provides that any real property, or any beneficial interest in a land trust, or any interest in real property held in a revocable living trust created for estate planning purposes, held in tenancy by the entirety shall not be liable to be sold upon judgment (instead of any real property or any beneficial interest in a land trust, held in tenancy by the entirety shall not be liable to be sold upon judgment). Amends the Joint Tenancy Act. Provides that where the homestead is maintained in a revocable living trust created for estate planning purposes by both husband and wife, the husband and wife are the primary beneficiaries of the trust, and the terms of the trust specifically state that the interests of the beneficiaries to the homestead property are held as tenants by the entirety, the estate created is a tenancy by the entirety.
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A BILL FOR
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HB5282 |
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LRB096 16285 AJO 31543 b |
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| AN ACT concerning real property.
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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 Code of Civil Procedure is amended by | 5 |
| changing Section 12-112 as follows:
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| (735 ILCS 5/12-112) (from Ch. 110, par. 12-112)
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| Sec. 12-112. What liable to enforcement. All the lands, | 8 |
| tenements, real
estate, goods and chattels (except such as is | 9 |
| by law declared to be exempt)
of every person against whom any | 10 |
| judgment has been or shall be hereafter
entered in any court, | 11 |
| for any debt, damages, costs, or other sum of money,
shall be | 12 |
| liable to be sold upon such judgment. Any real property, or any
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| beneficial interest in a land trust, or any interest in real | 14 |
| property held in a revocable inter vivos trust created for | 15 |
| estate planning purposes, held in
tenancy by the entirety shall | 16 |
| not be liable to be sold upon judgment
entered on or after | 17 |
| October 1, 1990 against only one of the tenants, except if
the | 18 |
| property was transferred into tenancy by the entirety with the | 19 |
| sole intent
to avoid the payment of debts existing at the time | 20 |
| of the transfer beyond the
transferor's ability to pay those | 21 |
| debts as they become due.
However, any income from such | 22 |
| property shall be subject to garnishment as
provided in Part 7 | 23 |
| of this Article XII, whether judgment has been entered
against |
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HB5282 |
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LRB096 16285 AJO 31543 b |
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| one or both of the tenants.
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| If the court authorizes the piercing of the ownership veil | 3 |
| pursuant to
Section 505 of the Illinois Marriage and | 4 |
| Dissolution of Marriage Act or Section
15 of the Illinois | 5 |
| Parentage Act of 1984, any assets determined to be those of
the | 6 |
| non-custodial parent, although not held in name of the
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| non-custodial parent, shall be subject to attachment or other | 8 |
| provisional
remedy in accordance with the procedure prescribed | 9 |
| by this Code. The court may
not authorize attachment of
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| property or any other provisional remedy under this paragraph | 11 |
| unless it has
obtained jurisdiction over the entity holding | 12 |
| title to the property by proper
service on that entity. With | 13 |
| respect to assets which are real property, no
order entered as | 14 |
| described in this paragraph shall affect the rights of bona
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| fide purchasers, mortgagees, judgment creditors, or other lien | 16 |
| holders who
acquire their interests in the property prior to | 17 |
| the time a notice of lis
pendens pursuant to this Code or a | 18 |
| copy of the order is placed of record in the
office of the | 19 |
| recorder of deeds for the county in which the real property is
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| located.
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| This amendatory Act of 1995 (P.A. 89-438) is declarative of | 22 |
| existing law.
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| This amendatory Act of 1997 (P.A. 90-514) is intended as a | 24 |
| clarification
of existing law
and not as a new enactment.
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| (Source: P.A. 89-88, eff. 6-30-95; 89-438, eff. 12-15-95; | 26 |
| 90-476, eff.
1-1-98; 90-514, eff. 8-22-97; 90-655, eff. |
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HB5282 |
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LRB096 16285 AJO 31543 b |
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| 7-30-98.)
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| Section 10. The Joint Tenancy Act is amended by changing | 3 |
| Section 1c as follows:
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| (765 ILCS 1005/1c) (from Ch. 76, par. 1c)
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| Sec. 1c.
Whenever a devise, conveyance, assignment, or | 6 |
| other transfer of
property, including a beneficial interest in | 7 |
| a land trust, maintained or
intended for
maintenance as a | 8 |
| homestead by both husband and wife together during
coverture | 9 |
| shall be made and the instrument of devise, conveyance, | 10 |
| assignment,
or transfer expressly declares that the devise or | 11 |
| conveyance is made
to tenants by the
entirety, or if the | 12 |
| beneficial interest in a land trust is to be held as
tenants by | 13 |
| the entirety, the estate created shall be
deemed to be in | 14 |
| tenancy by the
entirety. Where the homestead is maintained in a | 15 |
| revocable inter vivos trust created for estate planning | 16 |
| purposes by both husband and wife, the husband and wife are the | 17 |
| primary beneficiaries of the trust so created, and the terms of | 18 |
| that revocable inter vivos trust specifically state that the | 19 |
| interests of the beneficiaries to the homestead property are to | 20 |
| be held as tenants by the entirety, the estate created shall be | 21 |
| deemed to be a tenancy by the entirety. Subject to the | 22 |
| provisions of paragraph (d) of Section 2 and
unless otherwise | 23 |
| assented to in writing by both tenants by the entirety,
the | 24 |
| estate in tenancy by the entirety so created shall exist only |
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LRB096 16285 AJO 31543 b |
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| if,
and as long as, the tenants are and remain married to each | 2 |
| other, and upon
the death of either such tenant the survivor | 3 |
| shall retain the entire
estate; provided that, upon a judgment | 4 |
| of dissolution of marriage or of
declaration of invalidity of | 5 |
| marriage, the estate shall, by operation of
law, become a | 6 |
| tenancy in common until and unless the court directs
otherwise; | 7 |
| provided further that the estate shall, by operation of law,
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| become a joint tenancy upon the creation and maintenance by | 9 |
| both spouses
together of other property as a homestead. A | 10 |
| devise, conveyance,
assignment, or other transfer to 2 grantees | 11 |
| who are not in fact husband and
wife that purports to create an | 12 |
| estate by the entirety shall be construed as
having created an | 13 |
| estate in joint tenancy. An estate in tenancy by the
entirety | 14 |
| may be created notwithstanding the fact that a grantor is or | 15 |
| the
grantors are also named as a grantee or the grantees in a | 16 |
| deed. No deed,
contract for deed, mortgage, or lease of | 17 |
| homestead property held in tenancy
by the entirety shall be | 18 |
| effective unless signed by both tenants. This
Section shall not | 19 |
| apply to nor operate to change the effect of any devise
or | 20 |
| conveyance.
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| This amendatory Act of 1995 is declarative of existing law.
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| (Source: P.A. 92-136, eff. 1-1-02.)
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