Public Act 098-0821
 
SB2656 EnrolledLRB098 14731 HEP 50789 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 5, 35,
40, 50, 65, 75, and 90 as follows:
 
    (755 ILCS 27/5)
    Sec. 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,
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; a residential condominium unit, units in residential
cooperatives; or, condominium units, including but not limited
to the limited 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.)
 
    (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 Unless expressly authorized by the owner under a
durable power of attorney or other similar instrument creating
an agency, an agent for an owner 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
residential real estate under the terms of the agency.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/40)
    Sec. 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
    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 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 residential real
estate at the owner's death.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/50)
    Sec. 50. Notice, delivery, acceptance, or consideration
not required. A transfer on death instrument is effective
without:
        (1) notice or delivery to or acceptance by the
    designated beneficiary during the owner's life; or
        (2) consideration.
(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 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
    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
owner.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/75)
    Sec. 75. Notice of death affidavit, acceptance and
effective date of transfer. 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 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 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.
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 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 Section 65 to be administered and
distributed in accordance with the terms thereof.
(Source: P.A. 97-555, eff. 1-1-12.)
 
    (755 ILCS 27/90)
    Sec. 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. 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.)
 
    (755 ILCS 27/100 rep.)
    Section 10. The Illinois Residential Real Property
Transfer on Death Instrument Act is amended by repealing
Section 100.
INDEX
Statutes amended in order of appearance
    755 ILCS 27/5
    755 ILCS 27/35
    755 ILCS 27/40
    755 ILCS 27/50
    755 ILCS 27/65
    755 ILCS 27/75
    755 ILCS 27/90
    755 ILCS 27/100 rep.