Full Text of HB1153 97th General Assembly
HB1153enr 97TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the | 5 | | Illinois Residential Real Property Transfer on Death | 6 | | Instrument Act. | 7 | | Section 5. Definitions. In this Act: | 8 | | "Beneficiary" means a person that receives residential | 9 | | real estate under a transfer on death instrument. | 10 | | "Designated beneficiary" means a person designated to | 11 | | receive residential real estate in a transfer on death | 12 | | instrument. | 13 | | "Joint owner" means an individual who owns residential real | 14 | | estate concurrently with one or more other individuals with a | 15 | | right of survivorship. The term includes a joint tenant or a | 16 | | tenant by the entirety. The term does not include a tenant in | 17 | | common. | 18 | | "Owner" means an individual who makes a transfer on death | 19 | | instrument. | 20 | | "Person" means an individual, corporation, business trust, | 21 | | land trust, estate, inter-vivos revocable or irrevocable | 22 | | trust, testamentary trust, partnership, limited liability | 23 | | company, association, joint venture, public corporation, |
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| 1 | | government or governmental subdivision, agency, or | 2 | | instrumentality, or any other legal or commercial entity. | 3 | | "Residential real estate" means real property improved | 4 | | with not less than one nor more than 4 residential dwelling | 5 | | units, units in residential cooperatives; or, condominium | 6 | | units, including the limited common elements allocated to the | 7 | | exclusive use thereof that form an integral part of the | 8 | | condominium unit; or a single tract of agriculture real estate | 9 | | consisting of 40 acres or less which is improved with a single | 10 | | family residence. | 11 | | "Transfer on death instrument" means an instrument | 12 | | authorized under this Act.
| 13 | | Section 10. Applicability. This Act applies to only a | 14 | | transfer of residential real estate as defined in this Act by | 15 | | means of a transfer on death instrument made before, on, or | 16 | | after the effective date of this Act, by an owner dying on or | 17 | | after the effective date of this Act. | 18 | | Section 15. Non-exclusivity. This Act does not affect any | 19 | | method of transferring residential real estate otherwise | 20 | | permitted under the law of this State. | 21 | | Section 20. Transfer on death instrument authorized. An | 22 | | owner may transfer residential real estate by a transfer on | 23 | | death instrument to one or more beneficiaries as owners, |
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| 1 | | concurrently or successively, and upon any contingency, | 2 | | effective at the owner's death. | 3 | | Section 25. Transfer on death instrument revocable. A | 4 | | transfer on death instrument is revocable even if the | 5 | | instrument or another instrument contains a contrary | 6 | | provision. | 7 | | Section 30. Transfer on death instrument nontestamentary. | 8 | | A transfer on death instrument is a nontestamentary instrument | 9 | | and is subject to all other laws governing or affecting | 10 | | nontestamentary instruments. | 11 | | Section 35. Capacity of owner and agent's authority. The | 12 | | capacity required to make or revoke a transfer on death | 13 | | instrument is the same as the capacity required to make a will. | 14 | | Unless expressly authorized by the owner under a power of | 15 | | attorney or similar instrument creating an agency, an agent for | 16 | | an owner does not have the authority to create or revoke a | 17 | | transfer on death instrument. | 18 | | Section 40. Requirements. | 19 | | (a) A transfer on death instrument: | 20 | | (1) must contain the essential elements and | 21 | | formalities of a properly recordable inter vivos deed; and | 22 | | must be executed, witnessed, and acknowledged in |
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| 1 | | compliance with Section 45; | 2 | | (2) must state that the transfer to the designated | 3 | | beneficiary is to occur at the owner's death; and | 4 | | (3) must be recorded before the owner's death in the | 5 | | public records in the office of the recorder of the county | 6 | | or counties in which any part of the residential real | 7 | | estate is located.
| 8 | | (b) The failure to comply with any of the requirements of | 9 | | subsection (a) will render the transfer on death instrument | 10 | | void and ineffective to transfer title to the residential real | 11 | | estate at the owner's death. | 12 | | Section 45. Signing, attestation, and acknowledgement. | 13 | | Every transfer on death instrument shall be signed by the owner | 14 | | or by some person in his or her presence and by his or her | 15 | | direction, and shall be attested in writing by 2 or more | 16 | | credible witnesses, whose signatures along with the owner's | 17 | | signature shall be acknowledged by a notary public. The | 18 | | witnesses shall attest in writing that on the date thereof the | 19 | | owner executed the transfer on death instrument in their | 20 | | presence as his or her own free and voluntary act, and that at | 21 | | the time of the execution the witnesses believed the owner to | 22 | | be of sound mind and memory. | 23 | | Section 50. Notice, delivery, or consideration not | 24 | | required. A transfer on death instrument is effective without: |
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| 1 | | (1) notice or delivery to the designated beneficiary | 2 | | during the owner's life; or | 3 | | (2) consideration.
| 4 | | Section 55. Revocation by recorded instrument authorized; | 5 | | revocation by act or unrecorded instrument, not authorized. | 6 | |
(a) An instrument is effective to revoke a recorded | 7 | | transfer on death instrument, or any part of it, only if | 8 | | (1) it is: | 9 | | (A) another transfer on death instrument that | 10 | | revokes the instrument or part of the instrument | 11 | | expressly or by inconsistency; or | 12 | | (B) an instrument of revocation that expressly | 13 | | revokes the instrument or part of the instrument; and | 14 | | (2) it is | 15 | | (A) executed, witnessed, and acknowledged in the | 16 | | same manner as is required by Section 45 on a date that | 17 | | is after the date of the acknowledgment of the | 18 | | instrument being revoked; and | 19 | | (B) recorded before the owner's death in the public | 20 | | records in the office of the recorder of the county or | 21 | | counties where the prior transfer on death instrument | 22 | | is recorded. | 23 | | (b) A transfer on death instrument executed and recorded in | 24 | | accordance with this Act may not be revoked by a revocatory act | 25 | | on the instrument, by an unrecorded instrument, or by a |
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| 1 | | provision in a will.
| 2 | | Section 60. Effect of transfer on death instrument during | 3 | | owner's life.
| 4 | | (a) During an owner's life, a transfer on death instrument | 5 | | does not: | 6 | | (1) affect the right of the owner, any other owner, | 7 | | or an agent for the owner to sell or encumber the | 8 | | residential real estate; | 9 | | (2) affect an interest or right of a transferee, | 10 | | lienholder, mortgagee, option holder or grantee even | 11 | | if the transferee, lienholder, mortgagee, option | 12 | | holder or grantee has actual or constructive notice of | 13 | | the instrument; | 14 | | (3) affect an interest or right of a secured or | 15 | | unsecured creditor or future creditor of the owner, | 16 | | even if the creditor has actual or constructive notice | 17 | | of the instrument;
| 18 | | (4) affect the owner's or designated beneficiary's | 19 | | eligibility for any form of public assistance; | 20 | | (5) create a legal or equitable interest in favor | 21 | | of the designated beneficiary; or | 22 | | (6) subject the residential real estate to claims | 23 | | or process of a creditor of the designated beneficiary. | 24 | |
(b) If after recording a transfer on death instrument, the | 25 | | owner makes a contract for the sale or transfer of the |
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| 1 | | residential real estate or some part thereof that is the | 2 | | subject of the transfer on death instrument and the whole or | 3 | | any part of the contract remains executory at the owner's | 4 | | death, the disposition of the residential real estate by the | 5 | | contract does not revoke the transfer on death instrument but | 6 | | the residential real estate passes to the designated | 7 | | beneficiary or beneficiary subject to the contract.
| 8 | | Section 65. Effect of transfer on death instrument at | 9 | | owner's death.
| 10 | | (a) Except as otherwise provided in the transfer on death | 11 | | instrument, in this Section, or in the Probate Act of 1975 or | 12 | | any other Act applicable to nontestamentary instruments, on the | 13 | | death of the owner, the following rules apply to residential | 14 | | real estate that is the subject of a transfer on death | 15 | | instrument and owned by the owner at death: | 16 | | (1) Subject to the beneficiary's right to disclaim or | 17 | | refuse to accept the transfer, the interest in the | 18 | | residential real estate is transferred to the beneficiary | 19 | | in accordance with the instrument. | 20 | | (2) If a designated beneficiary fails to survive the | 21 | | owner or is not in existence on the date of the owner's | 22 | | death, then except as provided in paragraph (3) the | 23 | | residential real estate shall pass to the owner's estate. | 24 | | (3) Unless the owner provides otherwise, if the | 25 | | designated beneficiary is a descendant of the owner who |
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| 1 | | dies before the owner, the descendants of the deceased | 2 | | designated beneficiary living at the time of the owner's | 3 | | death shall take the residential real estate per stirpes. | 4 | | If the designated beneficiary is one of a class of | 5 | | designated beneficiaries, and any member of the class dies | 6 | | before the owner, the members of the class living when the | 7 | | owner dies shall take the share or shares which the | 8 | | deceased member would have taken if he or she were then | 9 | | living, except that if the deceased member of the class is | 10 | | a descendant of the owner, the descendants of the deceased | 11 | | member then living shall take per stirpes the share or | 12 | | shares which the deceased member would have taken if he or | 13 | | she were then living. | 14 | | (b) Subject to the Probate Act of 1975 and the Conveyances | 15 | | Act, a beneficiary takes the residential real estate subject to | 16 | | all conveyances, encumbrances, assignments, contracts, | 17 | | options, mortgages, liens, and other interests to which the | 18 | | residential real estate is subject at the owner's death. | 19 | | (c) A transfer on death instrument transfers residential | 20 | | real estate without covenant or warranty of title even if the | 21 | | instrument contains a contrary provision. | 22 | | (d) If there is no sufficient evidence of the order of the | 23 | | owner and designated beneficiary's deaths, otherwise than | 24 | | simultaneously, and there is no other provision in the transfer | 25 | | on death instrument, for purposes of this Section, the | 26 | | designated beneficiary shall be deemed to have predeceased the |
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| 1 | | owner.
| 2 | | Section 70. Joint owners. | 3 | | (a) One or more joint owners may execute a transfer on | 4 | | death instrument. | 5 | | (b) If all of the joint owners execute a transfer on death | 6 | | instrument, then an instrument of joint owners is revoked only | 7 | | if it is revoked by all of the then living joint owners. A | 8 | | transfer on death instrument is revocable by the last surviving | 9 | | joint owner notwithstanding any contract or agreement between | 10 | | the joint owners to the contrary. | 11 | | (c) If less than all of the joint owners execute a transfer | 12 | | on death instrument, the transfer on death instrument will be | 13 | | governed by the designation of the joint owner who is the last | 14 | | to die of all the joint owners. If the last to die joint owner | 15 | | did not execute a transfer on death instrument, the designation | 16 | | of any prior deceased joint owner is ineffective. | 17 | | (d) A transfer on death instrument shall not sever a joint | 18 | | tenancy or tenancy by the entirety.
| 19 | | Section 75. Notice of death affidavit, acceptance and | 20 | | effective date of transfer. A transfer on death instrument is | 21 | | effective as of the owner's death upon the filing of a notice | 22 | | of death affidavit and acceptance by the beneficiary or | 23 | | beneficiaries in the office of the recorder in the county or | 24 | | counties where the residential real estate is located. The |
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| 1 | | notice of death affidavit and acceptance shall contain the name | 2 | | and address of each beneficiary who shall take under the | 3 | | transfer on death instrument, a legal description of the | 4 | | property, the street address, and parcel identification number | 5 | | of the residential real estate, the name of the deceased owner, | 6 | | and the date of death. The notice of death affidavit and | 7 | | acceptance shall be signed by each beneficiary or by the | 8 | | beneficiary's authorized representative. If a notice of death | 9 | | affidavit and acceptance has not been filed by at least one | 10 | | beneficiary or by a beneficiary's authorized representative in | 11 | | the office of the recorder in the county or counties where the | 12 | | residential real estate is located within 30 days after the | 13 | | owner's death, the personal representative of the owner's | 14 | | estate, if any, may take possession of the residential real | 15 | | estate in accordance with Section 20-1 of the Probate Act of | 16 | | 1975, and shall be entitled to a lien for all reasonable costs | 17 | | and expenses incurred in the management and care thereof | 18 | | provided that a reasonable attempt to notify the beneficiary or | 19 | | beneficiaries has been made. If a notice of death affidavit and | 20 | | acceptance has not been filed by at least one beneficiary or by | 21 | | the beneficiary's authorized representative in the office of | 22 | | the recorder in the county or counties where the residential | 23 | | real estate is located within 2 years after the owner's death, | 24 | | the transfer on death instrument shall be void and ineffective | 25 | | and the residential real estate shall pass to the owner's | 26 | | estate as provided in paragraph (2) of subsection (a) of |
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| 1 | | Section 65 to be administered and distributed in accordance | 2 | | with the terms thereof. | 3 | | Section 80. Disclaimer. A beneficiary may disclaim all or | 4 | | part of the beneficiary's interest as provided by the | 5 | | Disclaimer Under Nontestamentary Instrument Act. | 6 | | Section 85. Rights of creditors and statutory claimants. A | 7 | | beneficiary of a transfer on death instrument is subject to the | 8 | | claims of creditors and statutory claimants to the same extent | 9 | | as a beneficiary of any nontestamentary transfer. | 10 | | Section 90. Limitations. An action to set aside or contest | 11 | | the validity of a transfer on death instrument shall be | 12 | | commenced within the earlier of 2 years after the date of the | 13 | | owner's death or 6 months from the date that letters of office | 14 | | are issued. | 15 | | Section 95. Preparation of a transfer on death instrument | 16 | | or its revocation. A transfer on death instrument or its | 17 | | revocation shall be prepared only by an Illinois licensed | 18 | | attorney. Nothing in this Section, however, shall prohibit an | 19 | | owner from preparing his or her own transfer on death | 20 | | instrument or revocation. | 21 | | Section 100. Form of notice of death affidavit and |
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| 1 | | acceptance. The following form shall be used to give notice of | 2 | | the owner's death and to accept the transfer by the | 3 | | beneficiary:
| 4 | | (front of form)
| 5 | | NOTICE: This Notice of Death Affidavit and Acceptance form or | 6 | | equivalent form must be recorded by the beneficiary after the | 7 | | death of the owner to make the transfer on death instrument | 8 | | effective. You should consult a lawyer before using this form.
| 9 | | NOTICE OF DEATH AFFIDAVIT AND ACCEPTANCE OF
| 10 | | TRANSFER ON DEATH INSTRUMENT
| 11 | | PREPARED BY AND RETURN TO:
| 12 | | SEND SUBSEQUENT TAX BILL TO:
| 13 | | The undersigned beneficiary or beneficiaries, being duly sworn | 14 | | on oath, state as follows:
| 15 | | That [name of owner] died on ......... , 20...... , a resident | 16 | | of [name of county], [name of state], owning residential real | 17 | | estate legally described below:
| 18 | | [legal description or attach exhibit]
| 19 | | That the street address of the residential real estate is | 20 | | [address] and the property identification number is [PIN].
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| 1 | | That the Transfer on Death Instrument is dated ............ and | 2 | | recorded as Document No. ........... in the Office of the | 3 | | Recorder for .............. County, Illinois.
| 4 | | That the undersigned whose names and addresses appear below are | 5 | | all beneficiaries entitled to receive under the Transfer on | 6 | | Death Instrument: | 7 | | Name Address Share
| 8 | | In witness whereof, the undersigned beneficiaries hereby | 9 | | accept the transfer of residential real estate under the | 10 | | transfer on death instrument this ........... day of | 11 | | ............, 20........ | 12 | | ........................(Seal) ....................(Seal) | 13 | | [Print Name] [Print Name]
| 14 | | STATE OF ILLINOIS | 15 | | COUNTY OF ..................
| 16 | | I, the undersigned, a Notary Public in and for the State | 17 | | aforesaid, DO HEREBY CERTIFY THAT [NAME OF BENEFICIARY OR | 18 | | BENEFICIARIES] personally known to me to be the same person or | 19 | | persons whose name or names are subscribed to the foregoing | 20 | | instrument, appeared before me this day in person and swore on |
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| 1 | | oath to the above foregoing affidavit.
Signed and sworn to | 2 | | before me this ............ day of ..............., A.D. 20....
| 3 | | My commission expires on .............
| 4 | | (SEAL)
| 5 | | ....................................... | 6 | | Notary Public
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