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Public Act 102-0068


 

Public Act 0068 102ND GENERAL ASSEMBLY

  
  
  

 


 
Public Act 102-0068
 
SB0047 EnrolledLRB102 04212 LNS 14229 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Illinois Residential Real Property Transfer
on Death Instrument Act is amended by changing Sections 1, 5,
10, 15, 20, 30, 35, 40, 45, 60, 65, 75, 85, 90, and 95 and by
adding Sections 21 and 66 as follows:
 
    (755 ILCS 27/1)
    Sec. 1. Short title. This Act may be cited as the Illinois
Residential Real Property Transfer on Death Instrument Act.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/5)
    Sec. 5. Definitions. In this Act:
    "Beneficiary" means a person that receives real property
residential real estate under a transfer on death instrument.
    "Designated beneficiary" means a person designated to
receive real property under residential real estate in a
transfer on death instrument.
    "Joint owner" means an individual who owns real property
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 owns an interest in real
property. "Owner" does not include a trustee or an individual
acting in a fiduciary, representative, or agency capacity who
holds an interest in real property who makes a transfer on
death instrument.
    "Person" means: an individual; a corporation; a business
trust; a trustee of a land trust, a revocable or irrevocable
trust, a trust created under a will or under a transfer on
death instrument; a partnership; a limited liability company;
an association; a joint venture; a public corporation; a
government or governmental subdivision; an agency; an
instrumentality; a guardian; a custodian designated or to be
designated under any state's uniform transfers to minors act;
or any other legal entity 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, government or governmental subdivision, agency,
or instrumentality, or any other legal or commercial entity.
    "Real property" means an interest in realty located in
this State capable of being transferred on the death of the
owner.
    "Residential real estate" means real property improved
with not less than one nor more than 4 residential dwelling
units; a residential condominium unit, including but not
limited to the common elements allocated to the exclusive use
thereof that form an integral part of the condominium unit and
any parking unit or units specified by the declaration to be
allocated to a specific residential condominium unit; or a
single tract of agriculture real estate consisting of 40 acres
or less which is improved with a single family residence. If a
declaration of condominium ownership provides for individually
owned and transferable parking units, "residential real
estate" does not include the parking unit of a specific
residential condominium unit unless the parking unit is
included in the legal description of the property being
transferred by a transfer on death instrument.
    "Transfer on death instrument" means an instrument
authorized under this Act.
(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15;
revised 7-16-19.)
 
    (755 ILCS 27/10)
    Sec. 10. Applicability. This Act applies to only to the
following:
        (1) A a transfer of residential real estate as defined
    in this Act by means of a transfer on death instrument made
    before, on, or after January 1, 2012 the effective date of
    this Act, by an owner dying on or after January 1, 2012 the
    effective date of this Act.
        (2) A transfer of real property by means of a transfer
    on death instrument made before, on, or after the
    effective date of this amendatory Act of the 102nd General
    Assembly by an owner dying on or after the effective date
    of this amendatory Act of the 102nd General Assembly.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/15)
    Sec. 15. Non-exclusivity. This Act does not affect any
method of transferring real property residential real estate
otherwise permitted under the law of this State.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/20)
    Sec. 20. Transfer on death instrument authorized. An owner
may transfer real property residential real estate by a
transfer on death instrument to one or more beneficiaries in
any form of ownership valid under State law, concurrent or
successive, absolute or conditional, contingent or vested, as
owners, concurrently or successively, and upon any
contingency, effective at the owner's death.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/21 new)
    Sec. 21. Trust as beneficiary. A transfer of real property
by a transfer on death instrument to a trustee of a trust that
is in existence when the owner executes a transfer on death
instrument and that is identified in the transfer on death
instrument, to a trustee of a trust created under the owner's
will, to a trustee of a trust created under the transfer on
death instrument, or to a trustee of a trust under the will of
another individual if that individual has predeceased the
owner, is permitted even if the trust is subject to amendment,
modification, revocation, or termination. Unless the transfer
on death instrument provides otherwise, the real property
transferred shall be governed by the terms and provisions of
the instrument creating the trust, including any amendments or
modifications in writing made at any time before or after the
execution of the owner's transfer on death instrument and
after the death of the owner. The existence or lack thereof of
a trust corpus is immaterial to the validity of the transfer by
the transfer on death instrument. Unless the transfer on death
instrument provides otherwise, a revocation or termination of
the trust before the owner's death causes the transfer to the
trust to pass to the owner's estate.
 
    (755 ILCS 27/30)
    Sec. 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
transfers by nontestamentary instruments. A transfer on death
instrument may not be admitted to probate as the will of the
owner or as a codicil thereto.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/35)
    Sec. 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.
An agent under a durable power of attorney or other instrument
creating an agency, even if authorized, does not have the
authority to create or revoke a transfer on death instrument
on behalf of the owner. This Section shall not be construed to
prohibit the agent from selling, transferring, or encumbering
the real property residential real estate under the terms of
the agency.
(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
    (755 ILCS 27/40)
    Sec. 40. Requirements.
    (a) A transfer on death instrument:
        (1) must: (i) contain the essential elements and
    formalities of a properly recordable inter vivos deed, but
    does not need to state consideration or the addresses of
    the beneficiaries; and (ii) must be executed, witnessed,
    and acknowledged in substantial 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 real property
    residential real estate is located.
    (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 real property
residential real estate at the owner's death.
(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
    (755 ILCS 27/45)
    Sec. 45. Signing, attestation, and acknowledgment
acknowledgement.
    (a) 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, and the whose signatures of the witnesses
along with the owner's signature shall be acknowledged in
front of by a notary public. The witnesses shall attest in
writing substantially as follows: (i) that on the date thereof
the owner executed the transfer on death instrument in the
their presence of the witnesses; (ii) that the owner's
execution was as his or her own free and voluntary act; , and
(iii) that at the time of the execution, the witnesses
believed the owner to be of sound mind and memory.
    (b) Except as provided in subsection (c), if the transfer
on death instrument is not witnessed by at least 2 credible
witnesses, it is not executed in substantial compliance with
subsection (a) and is void.
    (c) If a beneficiary, or his or her spouse, attests to the
execution of the transfer on death instrument, the interest
transferred to that beneficiary and all persons claiming under
him or her is void as to that beneficiary unless the transfer
on death instrument is otherwise duly attested by a sufficient
number of witnesses as under subsection (a) exclusive of that
person and the notary, and he or she may be compelled to
testify as if the interest had not been given, but the
beneficiary is entitled to receive so much of the interest or
share given to him or her by the transfer on death instrument
not to exceed the value or share that he or she would have
received had no transfer on death instrument been established.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/60)
    Sec. 60. Effect of transfer on death instrument during
owner's life.
    (a) During an owner's life, a transfer on death instrument
does not:
            (1) affect the right or interest of the owner, any
        other owner, or an agent for the owner to sell,
        transfer, or encumber the real property residential
        real estate;
            (2) affect an interest or right of a transferee,
        lienholder, mortgagee, or option holder or grantee
        even if the transferee, lienholder, mortgagee, or
        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;
            (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 real property 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 real
property 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 real property residential real
estate by the contract does not revoke the transfer on death
instrument but the real property residential real estate
passes to the designated beneficiary or beneficiary subject to
the contract.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/65)
    Sec. 65. Effect of transfer on death instrument at owner's
death.
    (a) Except as otherwise provided in the transfer on death
instrument, in this Act Section, or in the Probate Act of 1975,
or in any other Act applicable to nontestamentary instruments,
on the death of the owner, the following rules apply to the
real property 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 the
    transfer, the interest in the real property residential
    real estate is transferred to the beneficiary in
    accordance with the instrument.
        (2) If the owner has identified 2 or more designated
    beneficiaries to receive concurrent interests in the real
    property, the interests are taken in equal and undivided
    shares with no right of survivorship. 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) Except as provided in paragraph (5), if the owner
    has identified a single designated beneficiary and the
    designated beneficiary fails to survive the owner or is
    not in existence on the date of the owner's death, then the
    real property shall pass to the owner's estate. Unless the
    owner provides otherwise, if the designated beneficiary is
    a descendant of the owner who 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.
        (4) Except as provided in paragraph (5), if the owner
    has identified 2 or more designated beneficiaries to
    receive concurrent interests, and one or more, but less
    than all, designated beneficiaries predecease the owner,
    then the interests of those that lapse or fail for any
    reason are transferred to the other remaining designated
    beneficiary or beneficiaries in proportion to the interest
    of each in the remaining part of the real property held
    concurrently.
        (5) If the designated beneficiary who dies before the
    owner is a descendant of the owner, the descendants of the
    deceased designated beneficiary living at the time of the
    owner's death shall take the deceased designated
    beneficiary's share of the real property per stirpes.
    (b) Subject to the Probate Act of 1975 and the Conveyances
Act, a beneficiary takes the real property residential real
estate subject to all conveyances, encumbrances, assignments,
contracts, options, mortgages, liens, and other interests to
which the real property residential real estate is subject at
the owner's death.
    (c) A transfer on death instrument transfers real property
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 owner.
(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
    (755 ILCS 27/66 new)
    Sec. 66. Renunciation by spouse.
    (a) Unless the right to renounce is waived by the owner's
surviving spouse, a transfer on death instrument may be
renounced by the owner's surviving spouse. If renounced, the
surviving spouse is entitled to a one-third interest in the
real property transferred by the transfer on death instrument
if the owner leaves a descendant or a one-half interest in the
real property if the owner leaves no descendant. The surviving
spouse may waive his or her right to renounce by executing a
waiver as part of the transfer on death instrument.
Notwithstanding the foregoing, a surviving spouse does not
have the right to renounce a transfer on death instrument that
transfers the owner's interest in real property to a trustee
of a trust created under the owner's will or otherwise that is
for the sole benefit of the surviving spouse during his or her
lifetime.
    (b) In order to renounce the transfer on death instrument,
the owner's surviving spouse must file, in the recorder of
deeds office where the transfer on death instrument is
recorded, a written instrument signed by the surviving spouse
setting forth a description of the real property and declaring
the renunciation. The instrument shall be filed within 7
months after the date of the owner's death, or within such
additional time as a court having jurisdiction of the real
property may grant pursuant to Section 2-8 of the Probate Act
of 1975. The filing of the instrument renouncing the transfer
on death instrument is a complete bar to any claim of the
surviving spouse under the transfer on death instrument.
    (c) If a transfer on death instrument is renounced under
this Section, any future interest that is to take effect in
possession or enjoyment at or after the termination of an
estate or other interest given by the transfer on death
instrument to the surviving spouse takes effect as though the
surviving spouse had predeceased the owner, unless the
transfer on death instrument expressly provides that in the
case of renunciation the future interest shall not be
accelerated.
    (d) If the surviving spouse of the owner renounces the
transfer on death instrument and the interests transferred to
other persons are thereby diminished or increased, upon
petition by a beneficiary, the court shall abate from or add to
any interest transferred in such a manner as to apportion the
loss or advantage among the beneficiaries in proportion to
their respective interests.
 
    (755 ILCS 27/75)
    Sec. 75. Notice of death affidavit. Any beneficiary who
takes under a transfer on death instrument may file in the
office of the recorder in the county or counties where the real
property residential real estate is located a notice of death
affidavit to confirm title following the death of the owner.
The notice of death affidavit shall contain the name and
address, if known, of each beneficiary taking under the
transfer on death instrument, the legal description of the
property, the street address and parcel identification number
of the real property residential real estate, if known, the
date of the transfer on death instrument and its recording
document number, the name of the deceased owner, the date and
place of death, and the name and address to which all future
tax bills should be mailed. The affidavit shall be
acknowledged under penalty of perjury before a notary public
or person authorized to administer oaths. The filing of the
notice of death affidavit is not a condition to the transfer of
title.
(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
    (755 ILCS 27/85)
    Sec. 85. Rights of creditors and statutory claimants. A
beneficiary of a transfer on death instrument is subject to
creditor, administrative, funeral and burial, and statutory
claims to the same extent and in the same manner as a
beneficiary of a trust that was revocable at the time of the
settlor's death as provided in Section 505 of the Illinois
Trust Code, except that if more than one real property is
transferred by a transfer on death instrument, the liability
will be apportioned among the real properties in proportion to
the net values of the real properties at the time of the
owner's death. 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.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/90)
    Sec. 90. Limitations and bona fide transfers.
    (a) 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 letters of office are issued pursuant to
the Probate Act of 1975.
    (b) A bona fide purchaser or mortgagee for value shall
take the real property free and clear of any action, claim,
liability, or contest if the transfer to the bona fide
purchaser or mortgagee for value occurs prior to the recording
of a lis pendens under Section 2-1901 of the Code of Civil
Procedure or prior to the filing of the a notice of
renunciation pursuant to Section 66 of this Act.
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. However, a purchaser
or mortgagee for value and without notice before the
recordation of a lis pendens for an action to set aside or
contest the transfer on death instrument for any reason shall
take free and clear of any such action or contest.
(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)
 
    (755 ILCS 27/95)
    Sec. 95. Preparation of a transfer on death instrument or
its revocation. A transfer on death instrument or its
revocation shall be prepared only by a 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, or shall render the transfer on
death instrument void for failing to be prepared by a licensed
attorney.
(Source: P.A. 97-555, eff. 1-1-12.)
INDEX
Statutes amended in order of appearance
    755 ILCS 27/1
    755 ILCS 27/5
    755 ILCS 27/10
    755 ILCS 27/15
    755 ILCS 27/20
    755 ILCS 27/21 new
    755 ILCS 27/30
    755 ILCS 27/35
    755 ILCS 27/40
    755 ILCS 27/45
    755 ILCS 27/60
    755 ILCS 27/65
    755 ILCS 27/66 new
    755 ILCS 27/75
    755 ILCS 27/85
    755 ILCS 27/90
    755 ILCS 27/95

Effective Date: 1/1/2022