Full Text of SB2656 98th General Assembly
SB2656eng 98TH 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 5. The Illinois Residential Real Property Transfer | 5 | | on Death Instrument Act is amended by changing Sections 5, 35, | 6 | | 40, 50, 65, 75, and 90 as follows: | 7 | | (755 ILCS 27/5)
| 8 | | Sec. 5. Definitions. In this Act: | 9 | | "Beneficiary" means a person that receives residential | 10 | | real estate under a transfer on death instrument. | 11 | | "Designated beneficiary" means a person designated to | 12 | | receive residential real estate in a transfer on death | 13 | | instrument. | 14 | | "Joint owner" means an individual who owns residential real | 15 | | estate concurrently with one or more other individuals with a | 16 | | right of survivorship. The term includes a joint tenant or a | 17 | | tenant by the entirety. The term does not include a tenant in | 18 | | common. | 19 | | "Owner" means an individual who makes a transfer on death | 20 | | instrument. | 21 | | "Person" means an individual, corporation, business trust, | 22 | | land trust, estate, inter-vivos revocable or irrevocable | 23 | | trust, testamentary trust, partnership, limited liability |
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| 1 | | company, association, joint venture, public corporation, | 2 | | government or governmental subdivision, agency, or | 3 | | instrumentality, or any other legal or commercial entity. | 4 | | "Residential real estate" means real property improved | 5 | | with not less than one nor more than 4 residential dwelling | 6 | | units ; a residential condominium unit , units in residential | 7 | | cooperatives; or, condominium units, including but not limited | 8 | | to the limited common elements allocated to the exclusive use | 9 | | thereof that form an integral part of the condominium unit and | 10 | | any parking unit or units specified by the declaration to be | 11 | | allocated to a specific residential condominium unit ; or a | 12 | | single tract of agriculture real estate consisting of 40 acres | 13 | | or less which is improved with a single family residence. If a | 14 | | declaration of condominium ownership provides for individually | 15 | | owned and transferable parking units, "residential real | 16 | | estate" does not include the parking unit of a specific | 17 | | residential condominium unit unless the parking unit is | 18 | | included in the legal description of the property being | 19 | | transferred by a transfer on death instrument. | 20 | | "Transfer on death instrument" means an instrument | 21 | | authorized under this Act.
| 22 | | (Source: P.A. 97-555, eff. 1-1-12.) | 23 | | (755 ILCS 27/35)
| 24 | | Sec. 35. Capacity of owner and agent's authority. The | 25 | | capacity required to make or revoke a transfer on death |
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| 1 | | instrument is the same as the capacity required to make a will. | 2 | | An agent Unless expressly authorized by the owner under a | 3 | | durable power of attorney or other similar instrument creating | 4 | | an agency , an agent for an owner does not have the authority to | 5 | | create or revoke a transfer on death instrument on behalf of | 6 | | the owner. This Section shall not be construed to prohibit the | 7 | | agent from selling, transferring, or encumbering the | 8 | | residential real estate under the terms of the agency .
| 9 | | (Source: P.A. 97-555, eff. 1-1-12.) | 10 | | (755 ILCS 27/40)
| 11 | | Sec. 40. Requirements. | 12 | | (a) A transfer on death instrument: | 13 | | (1) must contain the essential elements and | 14 | | formalities of a properly recordable inter vivos deed; and | 15 | | must be executed, witnessed, and acknowledged in | 16 | | substantial compliance with Section 45; | 17 | | (2) must state that the transfer to the designated | 18 | | beneficiary is to occur at the owner's death; and | 19 | | (3) must be recorded before the owner's death in the | 20 | | public records in the office of the recorder of the county | 21 | | or counties in which any part of the residential real | 22 | | estate is located.
| 23 | | (b) The failure to comply with any of the requirements of | 24 | | subsection (a) will render the transfer on death instrument | 25 | | void and ineffective to transfer title to the residential real |
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| 1 | | estate at the owner's death.
| 2 | | (Source: P.A. 97-555, eff. 1-1-12.) | 3 | | (755 ILCS 27/50)
| 4 | | Sec. 50. Notice, delivery, acceptance, or consideration | 5 | | not required. A transfer on death instrument is effective | 6 | | without: | 7 | | (1) notice or delivery to or acceptance by the | 8 | | designated beneficiary during the owner's life; or | 9 | | (2) consideration.
| 10 | | (Source: P.A. 97-555, eff. 1-1-12.) | 11 | | (755 ILCS 27/65)
| 12 | | Sec. 65. Effect of transfer on death instrument at owner's | 13 | | death.
| 14 | | (a) Except as otherwise provided in the transfer on death | 15 | | instrument, in this Section, or in the Probate Act of 1975 or | 16 | | any other Act applicable to nontestamentary instruments, on the | 17 | | death of the owner, the following rules apply to residential | 18 | | real estate that is the subject of a transfer on death | 19 | | instrument and owned by the owner at death: | 20 | | (1) Subject to the beneficiary's right to disclaim or | 21 | | refuse to accept the transfer, the interest in the | 22 | | residential real estate is transferred to the beneficiary | 23 | | in accordance with the instrument. | 24 | | (2) If a designated beneficiary fails to survive the |
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| 1 | | owner or is not in existence on the date of the owner's | 2 | | death, then except as provided in paragraph (3) the | 3 | | residential real estate shall pass to the owner's estate. | 4 | | (3) Unless the owner provides otherwise, if the | 5 | | designated beneficiary is a descendant of the owner who | 6 | | dies before the owner, the descendants of the deceased | 7 | | designated beneficiary living at the time of the owner's | 8 | | death shall take the residential real estate per stirpes. | 9 | | If the designated beneficiary is one of a class of | 10 | | designated beneficiaries, and any member of the class dies | 11 | | before the owner, the members of the class living when the | 12 | | owner dies shall take the share or shares which the | 13 | | deceased member would have taken if he or she were then | 14 | | living, except that if the deceased member of the class is | 15 | | a descendant of the owner, the descendants of the deceased | 16 | | member then living shall take per stirpes the share or | 17 | | shares which the deceased member would have taken if he or | 18 | | she were then living. | 19 | | (b) Subject to the Probate Act of 1975 and the Conveyances | 20 | | Act, a beneficiary takes the residential real estate subject to | 21 | | all conveyances, encumbrances, assignments, contracts, | 22 | | options, mortgages, liens, and other interests to which the | 23 | | residential real estate is subject at the owner's death. | 24 | | (c) A transfer on death instrument transfers residential | 25 | | real estate without covenant or warranty of title even if the | 26 | | instrument contains a contrary provision. |
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| 1 | | (d) If there is no sufficient evidence of the order of the | 2 | | owner and designated beneficiary's deaths, otherwise than | 3 | | simultaneously, and there is no other provision in the transfer | 4 | | on death instrument, for purposes of this Section, the | 5 | | designated beneficiary shall be deemed to have predeceased the | 6 | | owner.
| 7 | | (Source: P.A. 97-555, eff. 1-1-12.) | 8 | | (755 ILCS 27/75)
| 9 | | Sec. 75. Notice of death affidavit , acceptance and | 10 | | effective date of transfer . Any beneficiary who takes under a | 11 | | transfer on death instrument may file in the office of the | 12 | | recorder in the county or counties where the residential real | 13 | | estate is located a notice of death affidavit to confirm title | 14 | | following the death of the owner. The notice of death affidavit | 15 | | shall contain the name and address, if known, of each | 16 | | beneficiary taking under the transfer on death instrument, the | 17 | | legal description of the property, the street address and | 18 | | parcel identification number of the residential real estate, if | 19 | | known, the date of the transfer on death instrument and its | 20 | | recording document number, the name of the deceased owner, the | 21 | | date and place of death, and the name and address to which all | 22 | | future tax bills should be mailed. The affidavit shall be | 23 | | acknowledged under penalty of perjury before a notary public or | 24 | | person authorized to administer oaths. The filing of the notice | 25 | | of death affidavit is not a condition to the transfer of title. |
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| 1 | | A transfer on death instrument is effective as of the owner's | 2 | | death upon the filing of a notice of death affidavit and | 3 | | acceptance by the beneficiary or beneficiaries in the office of | 4 | | the recorder in the county or counties where the residential | 5 | | real estate is located. The notice of death affidavit and | 6 | | acceptance shall contain the name and address of each | 7 | | beneficiary who shall take under the transfer on death | 8 | | instrument, a legal description of the property, the street | 9 | | address, and parcel identification number of the residential | 10 | | real estate, the name of the deceased owner, and the date of | 11 | | death. The notice of death affidavit and acceptance shall be | 12 | | signed by each beneficiary or by the beneficiary's authorized | 13 | | representative. If a notice of death affidavit and acceptance | 14 | | has not been filed by at least one beneficiary or by a | 15 | | beneficiary's authorized representative in the office of the | 16 | | recorder in the county or counties where the residential real | 17 | | estate is located within 30 days after the owner's death, the | 18 | | personal representative of the owner's estate, if any, may take | 19 | | possession of the residential real estate in accordance with | 20 | | Section 20-1 of the Probate Act of 1975, and shall be entitled | 21 | | to a lien for all reasonable costs and expenses incurred in the | 22 | | management and care thereof provided that a reasonable attempt | 23 | | to notify the beneficiary or beneficiaries has been made. If a | 24 | | notice of death affidavit and acceptance has not been filed by | 25 | | at least one beneficiary or by the beneficiary's authorized | 26 | | representative in the office of the recorder in the county or |
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| 1 | | counties where the residential real estate is located within 2 | 2 | | years after the owner's death, the transfer on death instrument | 3 | | shall be void and ineffective and the residential real estate | 4 | | shall pass to the owner's estate as provided in paragraph (2) | 5 | | of subsection (a) of Section 65 to be administered and | 6 | | distributed in accordance with the terms thereof.
| 7 | | (Source: P.A. 97-555, eff. 1-1-12.) | 8 | | (755 ILCS 27/90)
| 9 | | Sec. 90. Limitations. An action to set aside or contest the | 10 | | validity of a transfer on death instrument shall be commenced | 11 | | within the earlier of 2 years after the date of the owner's | 12 | | death or 6 months from the date that letters of office are | 13 | | issued. However, a purchaser or mortgagee for value and without | 14 | | notice before the recordation of a lis pendens for an action to | 15 | | set aside or contest the transfer on death instrument for any | 16 | | reason shall take free and clear of any such action or contest.
| 17 | | (Source: P.A. 97-555, eff. 1-1-12.)
| 18 | | (755 ILCS 27/100 rep.) | 19 | | Section 10. The Illinois Residential Real Property | 20 | | Transfer on Death Instrument Act is amended by repealing | 21 | | Section 100.
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INDEX
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Statutes amended in order of appearance
| | 3 | | 755 ILCS 27/5 | | | 4 | | 755 ILCS 27/35 | | | 5 | | 755 ILCS 27/40 | | | 6 | | 755 ILCS 27/50 | | | 7 | | 755 ILCS 27/65 | | | 8 | | 755 ILCS 27/75 | | | 9 | | 755 ILCS 27/90 | | | 10 | | 755 ILCS 27/100 rep. | |
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