Public Act 097-0555
Public Act 0555 97TH GENERAL ASSEMBLY
|Public Act 097-0555|
|HB1153 Enrolled||LRB097 00025 AJO 47182 b|
AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
This Act may be cited as the
Illinois Residential Real Property Transfer on Death
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
"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
"Owner" means an individual who makes a transfer on death
"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, 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
"Transfer on death instrument" means an instrument
authorized under this Act.
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.
This Act does not affect any
method of transferring residential real estate otherwise
permitted under the law of this State.
Transfer on death instrument authorized.
owner may transfer residential real estate by a transfer on
death instrument to one or more beneficiaries as owners,
concurrently or successively, and upon any contingency,
effective at the owner's death.
Transfer on death instrument revocable.
transfer on death instrument is revocable even if the
instrument or another instrument contains a contrary
Transfer on death instrument nontestamentary.
A transfer on death instrument is a nontestamentary instrument
and is subject to all other laws governing or affecting
Capacity of owner and agent's authority.
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.
(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
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.
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.
Notice, delivery, or consideration not
A transfer on death instrument is effective without:
(1) notice or delivery to the designated beneficiary
during the owner's life; or
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
(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
provision in a will.
Effect of transfer on death instrument during
(a) During an owner's life, a transfer on death instrument
(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
(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 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
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.
Effect of transfer on death instrument at
(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
(a) One or more joint owners may execute a transfer on
(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.
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
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.
A beneficiary may disclaim all or
part of the beneficiary's interest as provided by the
Disclaimer Under Nontestamentary Instrument Act.
Rights of creditors and statutory claimants.
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.
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
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.
Form of notice of death affidavit and
The following form shall be used to give notice of
the owner's death and to accept the transfer by the
(front of form)
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.
NOTICE OF DEATH AFFIDAVIT AND ACCEPTANCE OF
TRANSFER ON DEATH INSTRUMENT
PREPARED BY AND RETURN TO:
SEND SUBSEQUENT TAX BILL TO:
The undersigned beneficiary or beneficiaries, being duly sworn
on oath, state as follows:
That [name of owner] died on ......... , 20...... , a resident
of [name of county], [name of state], owning residential real
estate legally described below:
[legal description or attach exhibit]
That the street address of the residential real estate is
[address] and the property identification number is [PIN].
That the Transfer on Death Instrument is dated ............ and
recorded as Document No. ........... in the Office of the
Recorder for .............. County, Illinois.
That the undersigned whose names and addresses appear below are
all beneficiaries entitled to receive under the Transfer on
Name Address Share
In witness whereof, the undersigned beneficiaries hereby
accept the transfer of residential real estate under the
transfer on death instrument this ........... day of
[Print Name] [Print Name]
STATE OF ILLINOIS
COUNTY OF ..................
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
oath to the above foregoing affidavit.
Signed and sworn to
before me this ............ day of ..............., A.D. 20....
My commission expires on .............
Effective Date: 1/1/2012