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Public Act 097-0555
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| HB1153 Enrolled | LRB097 00025 AJO 47182 b |
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AN ACT concerning civil law.
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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 |
Illinois Residential Real Property Transfer on Death |
Instrument Act.
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Section 5. Definitions. In this Act: |
"Beneficiary" means a person that receives residential |
real estate under a transfer on death instrument. |
"Designated beneficiary" means a person designated to |
receive residential real estate in a transfer on death |
instrument. |
"Joint owner" means an individual who owns residential real |
estate concurrently with one or more other individuals with a |
right of survivorship. The term includes a joint tenant or a |
tenant by the entirety. The term does not include a tenant in |
common. |
"Owner" means an individual who makes a transfer on death |
instrument. |
"Person" means an individual, corporation, business trust, |
land trust, estate, inter-vivos revocable or irrevocable |
trust, testamentary trust, partnership, limited liability |
company, association, joint venture, public corporation, |
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government or governmental subdivision, agency, or |
instrumentality, or any other legal or commercial entity. |
"Residential real estate" means real property improved |
with not less than one nor more than 4 residential dwelling |
units, units in residential cooperatives; or, condominium |
units, including the limited common elements allocated to the |
exclusive use thereof that form an integral part of the |
condominium unit; or a single tract of agriculture real estate |
consisting of 40 acres or less which is improved with a single |
family residence. |
"Transfer on death instrument" means an instrument |
authorized under this Act.
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Section 10. Applicability. This Act applies to only a |
transfer of residential real estate as defined in this Act by |
means of a transfer on death instrument made before, on, or |
after the effective date of this Act, by an owner dying on or |
after the effective date of this Act.
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Section 15. Non-exclusivity. This Act does not affect any |
method of transferring residential real estate otherwise |
permitted under the law of this State.
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Section 20. Transfer on death instrument authorized. An |
owner may transfer residential real estate by a transfer on |
death instrument to one or more beneficiaries as owners, |
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concurrently or successively, and upon any contingency, |
effective at the owner's death.
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Section 25. Transfer on death instrument revocable. A |
transfer on death instrument is revocable even if the |
instrument or another instrument contains a contrary |
provision.
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Section 30. Transfer on death instrument nontestamentary. |
A transfer on death instrument is a nontestamentary instrument |
and is subject to all other laws governing or affecting |
nontestamentary instruments.
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Section 35. Capacity of owner and agent's authority. The |
capacity required to make or revoke a transfer on death |
instrument is the same as the capacity required to make a will. |
Unless expressly authorized by the owner under a power of |
attorney or similar instrument creating an agency, an agent for |
an owner does not have the authority to create or revoke a |
transfer on death instrument.
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Section 40. Requirements. |
(a) A transfer on death instrument: |
(1) must contain the essential elements and |
formalities of a properly recordable inter vivos deed; and |
must be executed, witnessed, and acknowledged in |
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compliance with Section 45; |
(2) must state that the transfer to the designated |
beneficiary is to occur at the owner's death; and |
(3) must be recorded before the owner's death in the |
public records in the office of the recorder of the county |
or counties in which any part of the residential real |
estate is located.
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(b) The failure to comply with any of the requirements of |
subsection (a) will render the transfer on death instrument |
void and ineffective to transfer title to the residential real |
estate at the owner's death.
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Section 45. Signing, attestation, and acknowledgement. |
Every transfer on death instrument shall be signed by the owner |
or by some person in his or her presence and by his or her |
direction, and shall be attested in writing by 2 or more |
credible witnesses, whose signatures along with the owner's |
signature shall be acknowledged by a notary public. The |
witnesses shall attest in writing that on the date thereof the |
owner executed the transfer on death instrument in their |
presence as his or her own free and voluntary act, and that at |
the time of the execution the witnesses believed the owner to |
be of sound mind and memory.
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Section 50. Notice, delivery, or consideration not |
required. A transfer on death instrument is effective without: |
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(1) notice or delivery to the designated beneficiary |
during the owner's life; or |
(2) consideration.
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Section 55. Revocation by recorded instrument authorized; |
revocation by act or unrecorded instrument, not authorized. |
(a) An instrument is effective to revoke a recorded |
transfer on death instrument, or any part of it, only if |
(1) it is: |
(A) another transfer on death instrument that |
revokes the instrument or part of the instrument |
expressly or by inconsistency; or |
(B) an instrument of revocation that expressly |
revokes the instrument or part of the instrument; and |
(2) it is |
(A) executed, witnessed, and acknowledged in the |
same manner as is required by Section 45 on a date that |
is after the date of the acknowledgment of the |
instrument being revoked; and |
(B) recorded before the owner's death in the public |
records in the office of the recorder of the county or |
counties where the prior transfer on death instrument |
is recorded. |
(b) A transfer on death instrument executed and recorded in |
accordance with this Act may not be revoked by a revocatory act |
on the instrument, by an unrecorded instrument, or by a |
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provision in a will.
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Section 60. Effect of transfer on death instrument during |
owner's life.
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(a) During an owner's life, a transfer on death instrument |
does not: |
(1) affect the right of the owner, any other owner, |
or an agent for the owner to sell or encumber the |
residential real estate; |
(2) affect an interest or right of a transferee, |
lienholder, mortgagee, option holder or grantee even |
if the transferee, lienholder, mortgagee, option |
holder or grantee has actual or constructive notice of |
the instrument; |
(3) affect an interest or right of a secured or |
unsecured creditor or future creditor of the owner, |
even if the creditor has actual or constructive notice |
of the instrument;
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(4) affect the owner's or designated beneficiary's |
eligibility for any form of public assistance; |
(5) create a legal or equitable interest in favor |
of the designated beneficiary; or |
(6) subject the residential real estate to claims |
or process of a creditor of the designated beneficiary. |
(b) If after recording a transfer on death instrument, the |
owner makes a contract for the sale or transfer of the |
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residential real estate or some part thereof that is the |
subject of the transfer on death instrument and the whole or |
any part of the contract remains executory at the owner's |
death, the disposition of the residential real estate by the |
contract does not revoke the transfer on death instrument but |
the residential real estate passes to the designated |
beneficiary or beneficiary subject to the contract.
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Section 65. Effect of transfer on death instrument at |
owner's death.
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(a) Except as otherwise provided in the transfer on death |
instrument, in this Section, or in the Probate Act of 1975 or |
any other Act applicable to nontestamentary instruments, on the |
death of the owner, the following rules apply to residential |
real estate that is the subject of a transfer on death |
instrument and owned by the owner at death: |
(1) Subject to the beneficiary's right to disclaim or |
refuse to accept the transfer, the interest in the |
residential real estate is transferred to the beneficiary |
in accordance with the instrument. |
(2) If a designated beneficiary fails to survive the |
owner or is not in existence on the date of the owner's |
death, then except as provided in paragraph (3) the |
residential real estate shall pass to the owner's estate. |
(3) Unless the owner provides otherwise, if the |
designated beneficiary is a descendant of the owner who |
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dies before the owner, the descendants of the deceased |
designated beneficiary living at the time of the owner's |
death shall take the residential real estate per stirpes. |
If the designated beneficiary is one of a class of |
designated beneficiaries, and any member of the class dies |
before the owner, the members of the class living when the |
owner dies shall take the share or shares which the |
deceased member would have taken if he or she were then |
living, except that if the deceased member of the class is |
a descendant of the owner, the descendants of the deceased |
member then living shall take per stirpes the share or |
shares which the deceased member would have taken if he or |
she were then living. |
(b) Subject to the Probate Act of 1975 and the Conveyances |
Act, a beneficiary takes the residential real estate subject to |
all conveyances, encumbrances, assignments, contracts, |
options, mortgages, liens, and other interests to which the |
residential real estate is subject at the owner's death. |
(c) A transfer on death instrument transfers residential |
real estate without covenant or warranty of title even if the |
instrument contains a contrary provision. |
(d) If there is no sufficient evidence of the order of the |
owner and designated beneficiary's deaths, otherwise than |
simultaneously, and there is no other provision in the transfer |
on death instrument, for purposes of this Section, the |
designated beneficiary shall be deemed to have predeceased the |
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owner.
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Section 70. Joint owners. |
(a) One or more joint owners may execute a transfer on |
death instrument. |
(b) If all of the joint owners execute a transfer on death |
instrument, then an instrument of joint owners is revoked only |
if it is revoked by all of the then living joint owners. A |
transfer on death instrument is revocable by the last surviving |
joint owner notwithstanding any contract or agreement between |
the joint owners to the contrary. |
(c) If less than all of the joint owners execute a transfer |
on death instrument, the transfer on death instrument will be |
governed by the designation of the joint owner who is the last |
to die of all the joint owners. If the last to die joint owner |
did not execute a transfer on death instrument, the designation |
of any prior deceased joint owner is ineffective. |
(d) A transfer on death instrument shall not sever a joint |
tenancy or tenancy by the entirety.
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Section 75. Notice of death affidavit, acceptance and |
effective date of transfer. A transfer on death instrument is |
effective as of the owner's death upon the filing of a notice |
of death affidavit and acceptance by the beneficiary or |
beneficiaries in the office of the recorder in the county or |
counties where the residential real estate is located. The |
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notice of death affidavit and acceptance shall contain the name |
and address of each beneficiary who shall take under the |
transfer on death instrument, a legal description of the |
property, the street address, and parcel identification number |
of the residential real estate, the name of the deceased owner, |
and the date of death. The notice of death affidavit and |
acceptance shall be signed by each beneficiary or by the |
beneficiary's authorized representative. If a notice of death |
affidavit and acceptance has not been filed by at least one |
beneficiary or by a beneficiary's authorized representative in |
the office of the recorder in the county or counties where the |
residential real estate is located within 30 days after the |
owner's death, the personal representative of the owner's |
estate, if any, may take possession of the residential real |
estate in accordance with Section 20-1 of the Probate Act of |
1975, and shall be entitled to a lien for all reasonable costs |
and expenses incurred in the management and care thereof |
provided that a reasonable attempt to notify the beneficiary or |
beneficiaries has been made. If a notice of death affidavit and |
acceptance has not been filed by at least one beneficiary or by |
the beneficiary's authorized representative in the office of |
the recorder in the county or counties where the residential |
real estate is located within 2 years after the owner's death, |
the transfer on death instrument shall be void and ineffective |
and the residential real estate shall pass to the owner's |
estate as provided in paragraph (2) of subsection (a) of |
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Section 65 to be administered and distributed in accordance |
with the terms thereof.
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Section 80. Disclaimer. A beneficiary may disclaim all or |
part of the beneficiary's interest as provided by the |
Disclaimer Under Nontestamentary Instrument Act.
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Section 85. Rights of creditors and statutory claimants. A |
beneficiary of a transfer on death instrument is subject to the |
claims of creditors and statutory claimants to the same extent |
as a beneficiary of any nontestamentary transfer.
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Section 90. Limitations. An action to set aside or contest |
the validity of a transfer on death instrument shall be |
commenced within the earlier of 2 years after the date of the |
owner's death or 6 months from the date that letters of office |
are issued.
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Section 95. Preparation of a transfer on death instrument |
or its revocation. A transfer on death instrument or its |
revocation shall be prepared only by an Illinois licensed |
attorney. Nothing in this Section, however, shall prohibit an |
owner from preparing his or her own transfer on death |
instrument or revocation.
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Section 100. Form of notice of death affidavit and |
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acceptance. The following form shall be used to give notice of |
the owner's death and to accept the transfer by the |
beneficiary:
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(front of form)
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NOTICE: This Notice of Death Affidavit and Acceptance form or |
equivalent form must be recorded by the beneficiary after the |
death of the owner to make the transfer on death instrument |
effective. You should consult a lawyer before using this form.
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NOTICE OF DEATH AFFIDAVIT AND ACCEPTANCE OF
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TRANSFER ON DEATH INSTRUMENT
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PREPARED BY AND RETURN TO:
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SEND SUBSEQUENT TAX BILL TO:
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The undersigned beneficiary or beneficiaries, being duly sworn |
on oath, state as follows:
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That [name of owner] died on ......... , 20...... , a resident |
of [name of county], [name of state], owning residential real |
estate legally described below:
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[legal description or attach exhibit]
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That the street address of the residential real estate is |
[address] and the property identification number is [PIN].
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That the Transfer on Death Instrument is dated ............ and |
recorded as Document No. ........... in the Office of the |
Recorder for .............. County, Illinois.
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That the undersigned whose names and addresses appear below are |
all beneficiaries entitled to receive under the Transfer on |
Death Instrument:
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Name Address Share
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In witness whereof, the undersigned beneficiaries hereby |
accept the transfer of residential real estate under the |
transfer on death instrument this ........... day of |
............, 20........
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........................(Seal) ....................(Seal) |
[Print Name] [Print Name]
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STATE OF ILLINOIS |
COUNTY OF ..................
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I, the undersigned, a Notary Public in and for the State |
aforesaid, DO HEREBY CERTIFY THAT [NAME OF BENEFICIARY OR |
BENEFICIARIES] personally known to me to be the same person or |
persons whose name or names are subscribed to the foregoing |
instrument, appeared before me this day in person and swore on |