Full Text of HB5235 096th General Assembly
HB5235 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB5235
Introduced 2/3/2010, by Rep. Patricia R. Bellock SYNOPSIS AS INTRODUCED: |
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Creates the Transfer on Death Deeds Act. Contains provisions that concern: definitions; the effect of a transfer on death deed; rights of creditors; rights of the State and governmental entities; multiple grantee beneficiaries; successor grantee beneficiaries;
multiple joint tenant grantors; execution by attorney-in-fact; recording requirements and authorization; deed to trustee or other entity; revocation or modification of transfer on death deed; antilapse; deceased beneficiary; words of survivorship; lapse; multiple transfer on death deeds; nonademption; unpaid proceeds of sale, condemnation, or insurance; sale by conservator or guardian; nonexoneration; disclaimer by beneficiary;
effect on other conveyances; notice, consent, and delivery not required; nonrevocation by will; proof of survivorship;
after-acquired property; anticipatory alienation prohibited; form of transfer on death deed; and form of instrument of revocation.
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A BILL FOR
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HB5235 |
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| AN ACT concerning deeds.
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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 1. Short title. This Act may be cited as the | 5 |
| Transfer on Death Deeds Act. | 6 |
| Section 5. Definitions. As used in this Act: | 7 |
| "Beneficiary" or "grantee beneficiary" means a person or | 8 |
| entity named as a grantee beneficiary in a transfer on death | 9 |
| deed, including a successor grantee beneficiary.
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| "Grantor owner" means an owner named as a grantor in a | 11 |
| transfer on death deed upon whose death the conveyance or | 12 |
| transfer of the described real property is conditioned. Grantor | 13 |
| owner does not include a spouse who joins in a transfer on | 14 |
| death deed solely for the purpose of conveying or releasing | 15 |
| statutory or other marital interests in the real property to be | 16 |
| conveyed or transferred by the transfer on death deed.
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| "Owner" means a person having an ownership or other | 18 |
| interest in all or part of the real property to be conveyed or | 19 |
| transferred by a transfer on death deed. Owner does not include | 20 |
| a spouse who joins in a transfer on death deed solely for the | 21 |
| purpose of conveying or releasing statutory or other marital | 22 |
| interests in the real property to be conveyed or transferred by | 23 |
| the transfer on death deed.
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| "Recorded" means recorded in the office of the recorder, as | 2 |
| appropriate, for the real property described in the instrument | 3 |
| to be recorded.
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| "State agency" means the Department of Health and Human | 5 |
| Services or any successor agency.
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| "Transfer on death deed" means a deed authorized under this | 7 |
| Act.
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| Section 10. Effect of transfer on death deed. A deed that | 9 |
| (i) conveys or assigns an interest in real property, including | 10 |
| a mortgage, judgment, or any other lien on real property, to a | 11 |
| grantee beneficiary and (ii) expressly states that the deed is | 12 |
| only effective on the death of one or more of the grantor | 13 |
| owners transfers the interest to the grantee beneficiary upon | 14 |
| the death of the grantor owner upon whose death the conveyance | 15 |
| or transfer is stated to be effective. A transfer on death deed | 16 |
| must comply with all provisions of Illinois law applicable to | 17 |
| deeds of real property. | 18 |
| Section 15. Rights of creditors and rights of State and | 19 |
| governmental entities. The interest transferred to a | 20 |
| beneficiary under a transfer on death deed after the death of a | 21 |
| grantor owner is transferred subject to all effective | 22 |
| conveyances, assignments, contracts, mortgages, deeds of | 23 |
| trust, liens, security pledges, judgments, tax liens, and other | 24 |
| encumbrances made by the grantor owner or to which the property |
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| was subject during the grantor owner's lifetime, including, but | 2 |
| not limited to, any claim by a surviving spouse or any claim or | 3 |
| lien by the State or a governmental entity, if other assets of | 4 |
| the deceased owner's estate are insufficient to pay the amount | 5 |
| of that claim. A beneficiary to whom the interest is | 6 |
| transferred after the death of a grantor owner shall be liable | 7 |
| to account to the State or any governmental entity with a claim | 8 |
| or lien, to the extent necessary to discharge the claim | 9 |
| remaining unpaid after application of the assets of the | 10 |
| deceased grantor owner's estate, but that liability shall be | 11 |
| limited to the value of the interest transferred to the | 12 |
| beneficiary. | 13 |
| Section 20. Multiple grantee beneficiaries. A transfer on | 14 |
| death deed may designate multiple grantee beneficiaries to take | 15 |
| title as joint tenants, as tenants in common, tenants by the | 16 |
| entirety, or in any other form of ownership or tenancy that is | 17 |
| valid under law.
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| Section 25. Successor grantee beneficiaries. A transfer on | 19 |
| death deed may designate one or more successor grantee | 20 |
| beneficiaries or a class of successor grantee beneficiaries, or | 21 |
| both. If the transfer on death deed designates successor | 22 |
| grantee beneficiaries or a class of successor grantee | 23 |
| beneficiaries, the deed shall state the condition under which | 24 |
| the interest of the successor grantee beneficiaries would vest.
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| Section 30. Multiple joint tenant grantors. If an interest | 2 |
| in real property is owned as joint tenants, a transfer on death | 3 |
| deed executed by all of the owners that conveys an interest in | 4 |
| real property to one or more grantee beneficiaries transfers | 5 |
| the interest to the grantee beneficiary or beneficiaries | 6 |
| effective only after the death of the last surviving grantor | 7 |
| owner. If the last surviving joint tenant owner did not execute | 8 |
| the transfer on death deed, the deed is ineffective to transfer | 9 |
| any interest, and the deed is void. A joint tenancy is not | 10 |
| severed or affected by the subsequent execution of a transfer | 11 |
| on death deed, and the right of a surviving joint tenant who | 12 |
| did not execute the transfer on death deed shall prevail over a | 13 |
| grantee beneficiary named in a transfer on death deed unless | 14 |
| the deed specifically states that it severs the joint tenancy | 15 |
| ownership. | 16 |
| Section 35. Execution by attorney-in-fact. A transfer on | 17 |
| death deed may be executed by a duly appointed attorney-in-fact | 18 |
| pursuant to a power of attorney that grants the | 19 |
| attorney-in-fact the authority to execute deeds. | 20 |
| Section 40. Recording requirements and authorization. A | 21 |
| transfer on death deed is valid if the deed is recorded in a | 22 |
| county in which at least a part of the real property described | 23 |
| in the deed is located and is recorded before the death of the |
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| grantor owner upon whose death the conveyance or transfer is | 2 |
| effective. A transfer on death deed is not effective until the | 3 |
| deed is recorded in the county in which the real property is | 4 |
| located. A transfer on death deed that otherwise satisfies all | 5 |
| statutory requirements for recording may be recorded and shall | 6 |
| be accepted for recording in the county in which the property | 7 |
| described in the deed is located. | 8 |
| Section 45. Deed to trustee or other entity. A transfer on | 9 |
| death deed may transfer an interest in real property to the | 10 |
| trustee of an inter vivos trust, even if the trust is | 11 |
| revocable, to the trustee of a testamentary trust, or to any | 12 |
| other entity legally qualified to hold title to real property | 13 |
| under law. | 14 |
| Section 50. Revocation or modification of transfer on death | 15 |
| deed.
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| (a) A transfer on death deed may be revoked at any time by | 17 |
| the grantor owner or, if there is more than one grantor owner, | 18 |
| by a grantor owner. To be effective, the revocation must be | 19 |
| recorded in the county in which at least a part of the real | 20 |
| property is located before the death of the grantor owner or | 21 |
| owners who execute the revocation. The revocation is not | 22 |
| effective until the revocation is recorded in the county in | 23 |
| which the real property is located. Subject to Section 30, if | 24 |
| the real property is owned by joint tenants and if the |
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| revocation is not executed by all of the grantor owners, the | 2 |
| revocation is not effective unless executed by the last | 3 |
| surviving grantor owner.
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| (b) If a grantor owner conveys to a third party, after the | 5 |
| recording of the transfer on death deed, by means other than a | 6 |
| transfer on death deed, all or a part of the grantor owner's | 7 |
| interest in the property described in the transfer on death | 8 |
| deed, no transfer of the conveyed interest shall occur on the | 9 |
| grantor owner's death, and the transfer on death deed shall be | 10 |
| ineffective as to the conveyed or transferred interests, but | 11 |
| the transfer on death deed remains effective with respect to | 12 |
| the conveyance or transfer on death of any other interests | 13 |
| described in the transfer on death deed owned by the grantor | 14 |
| owner at the time of the grantor owner's death.
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| (c) A transfer on death deed, except as may otherwise be | 16 |
| specifically provided for in the transfer on death deed, is | 17 |
| subject to the same provisions as to revocation, revival, and | 18 |
| nonrevocation.
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| Section 55. Antilapse; deceased beneficiary; words of | 20 |
| survivorship.
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| (a) If a grantee beneficiary who is a grandparent or lineal | 22 |
| descendant of a grandparent of the grantor owner fails to | 23 |
| survive the grantor owner, the issue of the deceased grantee | 24 |
| beneficiary who survive the grantor owner take in place of the | 25 |
| deceased grantee beneficiary. If they are all of the same |
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| degree of kinship to the deceased grantee beneficiary, they | 2 |
| take equally. If they are of unequal degree, those of more | 3 |
| remote degree take by right of representation.
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| (b) For the purposes of this Section, words of survivorship | 5 |
| such as, in a conveyance to an individual, "if he or she | 6 |
| survives me," or, in a class gift, to "my surviving children," | 7 |
| are a sufficient indication of intent to condition the | 8 |
| conveyance or transfer upon the beneficiary surviving the | 9 |
| grantor owner.
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| Section 60. Lapse. If all beneficiaries and all successor | 11 |
| beneficiaries, if any, designated in a transfer on death deed | 12 |
| and all successor beneficiaries who would take under the | 13 |
| antilapse provisions of Section 55 fail to survive the grantor | 14 |
| owner or the last survivor of the grantor owners if there are | 15 |
| multiple grantor owners, or if the beneficiary is a trust which | 16 |
| has been revoked prior to the grantor owner's death, or if the | 17 |
| beneficiary is an entity no longer in existence at the grantor | 18 |
| owner's death, then no transfer shall occur, and the transfer | 19 |
| on death deed is void. | 20 |
| Section 65. Multiple transfer on death deeds. If a grantor | 21 |
| owner executes and records more than one transfer on death deed | 22 |
| conveying the same interest in real property or a greater | 23 |
| interest in the real property, the transfer on death deed that | 24 |
| has the latest acknowledgment date and that is recorded before |
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| the death of the grantor owner upon whose death the conveyance | 2 |
| or transfer is conditioned is the effective transfer on death | 3 |
| deed, and all other transfer on death deeds, if any, executed | 4 |
| by the grantor owner or the grantor owners are ineffective to | 5 |
| transfer any interest and are void.
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| Section 70. Nonademption; unpaid proceeds of sale, | 7 |
| condemnation, or insurance; sale by conservator or guardian. If | 8 |
| at the time of the death of the grantor owner upon whose death | 9 |
| the conveyance or transfer is stated to be effective, the | 10 |
| grantor owner did not own a part or all of the real property | 11 |
| described in the transfer on death deed, no conveyance or | 12 |
| transfer to the beneficiary of the non-owned part of the real | 13 |
| property shall occur upon the death of the grantor owner, and | 14 |
| the transfer on death deed is void as to the non-owned part of | 15 |
| the real property, but the beneficiary shall have the same | 16 |
| rights to unpaid proceeds of sale, condemnation, or insurance, | 17 |
| and, if sold by a conservator or guardian of the grantor owner | 18 |
| during the grantor owner's lifetime, the same rights to a | 19 |
| general pecuniary devise as that of a specific devisee. | 20 |
| Section 75. Nonexoneration. Except as otherwise provided | 21 |
| in Section 15, a conveyance or transfer under a transfer on | 22 |
| death deed passes the described property subject to any | 23 |
| mortgage or security interest existing at the date of death of | 24 |
| the grantor owner, without right of exoneration, regardless of |
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| any statutory obligations to pay the grantor owner's debts upon | 2 |
| death and regardless of a general directive in the grantor | 3 |
| owner's will to pay debts.
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| Section 80. Disclaimer by beneficiary. A grantee | 5 |
| beneficiary's interest under a transfer on death deed may be | 6 |
| disclaimed as provided by law. | 7 |
| Section 85. Effect on other conveyances. This Section does | 8 |
| not prohibit other methods of conveying property that are | 9 |
| permitted by law and that have the effect of postponing | 10 |
| ownership or enjoyment of an interest in real property until | 11 |
| the death of the owner. This Section does not invalidate any | 12 |
| deed that is not a transfer on death deed and that is otherwise | 13 |
| effective to convey title to the interests and estates | 14 |
| described in the deed that is not recorded until after the | 15 |
| death of the owner. | 16 |
| Section 90. Notice, consent, and delivery not required. The | 17 |
| signature, consent, or agreement of, or notice to, a grantee | 18 |
| beneficiary under a transfer on death deed, or delivery of the | 19 |
| transfer on death deed to the grantee beneficiary, is not | 20 |
| required for any purpose during the lifetime of the grantor | 21 |
| owner.
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| Section 95. Nonrevocation by will. A transfer on death deed |
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| that is executed, acknowledged, and recorded in accordance with | 2 |
| this Act is not revoked by the provisions of a will. | 3 |
| Section 100. After-acquired property. Except as provided | 4 |
| in this Section, a transfer on death deed is not effective to | 5 |
| transfer any interest in real property acquired by a grantor | 6 |
| owner subsequent to the date of signing of a transfer on death | 7 |
| deed. A grantor owner may provide by specific language in a | 8 |
| transfer on death deed that the transfer on death deed will | 9 |
| apply to any interest in the described property acquired by the | 10 |
| grantor owner after the signing or recording of the deed. | 11 |
| Section 105. Anticipatory alienation prohibited. The | 12 |
| interest of a grantee beneficiary under a transfer on death | 13 |
| deed which has not yet become effective is not subject to | 14 |
| alienation; assignment; encumbrance; appointment or | 15 |
| anticipation by the beneficiary; garnishment; attachment; | 16 |
| execution or bankruptcy proceedings; claims for support or | 17 |
| maintenance; payment of other obligations by any person against | 18 |
| the beneficiary; or any other transfer, voluntary or | 19 |
| involuntary, by or from any beneficiary. | 20 |
| Section 110. Form of transfer on death deed. A transfer on | 21 |
| death deed may be substantially in the following form:
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| Transfer on Death Deed
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| I (we) ....................(grantor owner or owners and | 2 |
| spouses, if any, with marital status designated), grantor(s), | 3 |
| hereby convey(s) and quitclaim(s) to .................... | 4 |
| (grantee beneficiary, whether one or more) effective (check | 5 |
| only one of the following)
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| ..... on the death of the grantor owner, if only one grantor is | 7 |
| named above, or on the death of the last of the grantor owners | 8 |
| to die, if more than one grantor owner is named above, or | 9 |
| ..... on the death of (name of grantor owner)
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| .................... (must be one of the grantor owners named | 11 |
| above), the following described real property:
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| (Legal description)
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| If checked, the following optional statement applies: | 14 |
| ..... When effective, this instrument conveys any and all | 15 |
| interests in the described real property acquired by the | 16 |
| grantor owner(s) before, on, or after the date of this | 17 |
| instrument.
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| (Signature of grantor(s))
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| (acknowledgment)
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| Section 115. Form of instrument of revocation. An | 2 |
| instrument of revocation may be substantially in the following | 3 |
| form:
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| Revocation of Transfer on Death Deed
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| The undersigned hereby revokes the transfer on death deed | 6 |
| recorded on .........., ....., as Document No. .......... (or | 7 |
| in Book .......... of.........., Page .....) in the office of | 8 |
| the Recorder of .......... County, Illinois, affecting real | 9 |
| property legally described as follows:
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| (legal description)
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| Dated:
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| Signature
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| (acknowledgment)
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