755 ILCS 27. Illinois Residential Real Property Transfer on Death Instrument Act.

    (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 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, 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.)

    (755 ILCS 27/10)
    Sec. 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.
(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 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 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.
(Source: P.A. 97-555, eff. 1-1-12.)

    (755 ILCS 27/25)
    Sec. 25. Transfer on death instrument revocable. A transfer on death instrument is revocable even if the instrument or another instrument contains a contrary provision.
(Source: P.A. 97-555, eff. 1-1-12.)

    (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 nontestamentary instruments.
(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 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; 98-821, eff. 1-1-15.)

    (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; 98-821, eff. 1-1-15.)

    (755 ILCS 27/45)
    Sec. 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.
(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; 98-821, eff. 1-1-15.)

    (755 ILCS 27/55)
    Sec. 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 provision in a will.
(Source: P.A. 97-555, eff. 1-1-12; 97-813, eff. 7-13-12.)

    (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 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;

            (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.
(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

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; 98-821, eff. 1-1-15.)

    (755 ILCS 27/70)
    Sec. 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.
(Source: P.A. 97-555, eff. 1-1-12.)

    (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 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.
(Source: P.A. 97-555, eff. 1-1-12; 98-821, eff. 1-1-15.)

    (755 ILCS 27/80)
    Sec. 80. Disclaimer. A beneficiary may disclaim all or part of the beneficiary's interest as provided by the Disclaimer Under Nontestamentary Instrument Act.
(Source: P.A. 97-555, eff. 1-1-12.)

    (755 ILCS 27/85)
    Sec. 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.
(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; 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 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.
(Source: P.A. 97-555, eff. 1-1-12.)

    (755 ILCS 27/100)
    Sec. 100. (Repealed).
(Source: P.A. 97-555, eff. 1-1-12. Repealed by P.A. 98-821, eff. 1-1-15.)