Public Act 98-0821 (IL)

Transfer on Death Instrument, Amendment

Effective Date: January 1, 2015

Statutes Amended – 755 ILCS 27/5, 27/35, 27/40, 27/50, 27/65, 27/75, 27/90 and 755 ILCS 27/100 repealed


Public Act 98-0821 amends Sections 5, 35, 40, 50, 65, 75, and 90 of the Illinois Residential Real Property Transfer on Death Instrument Act in several ways.


Section 5 amends the definition of "residential real estate" to clarify that "a residential condominium unit" includes, but is not limited to, the common elements allocated to its exclusive use and any parking unit specified by the declaration to be allocated to a specific condominium unit. Moreover, "[i]f a declaration of condominium ownership provides for individually owned and transferable parking units, 'residential real estate' does not include the parking unit unless the parking unit is included in the legal description of the property being transferred by a transfer on death instrument.


Sections 35 rids the ability of an agent under a power of attorney to create or revoke a transfer on death instrument on behalf of the owner. However, the agent still possesses the ability to sell, transfer, or encumber residential real estate under the terms of the agency.


Sections 40 adds language to minimize the requirements for a transfer on death instrument, so that it is effective if executed, witnessed, and acknowledge in "substantial" compliance with Section 45 of the Act.


Section 50 adds the word "acceptance" to the list of what is not required to make a transfer on death instrument effective. In sum, a transfer on death instrument is effective without notice, delivery, acceptance, or consideration.


Section 65 now states that interest in residential real estate is transferred to the beneficiary, subject to the beneficiary's right to disclaim the transfer. The amendment removes language that says the transfer is subject to the beneficiary's "right to refuse to accept" the transfer.


Section 75 revises the "Notice of Death Affidavit" requirements. The Act provides that any beneficiary who takes under a transfer on death instrument may file a notice of death affidavit in the county where the residential real estate is located, to confirm title following the death of the owner. However, the filing of the notice of death affidavit is not a condition to the transfer. The Act lists what must be in the notice, which is similar to the requirements before the amendment but also adds: the date of the transfer on death instrument, if known, and its recording number; place of deceased owner's death; the name and address where future tax bills should be mailed; and the notice must be notarized. The amendment removes the requirement that each beneficiary must sign the notice. The amendment also removes references to acceptance by the beneficiary, the right of the personal representative of the deceased owner's estate to take possession of the property if the notice is not filed within 30 days after death of the owner, and the provision that a transfer on death instrument is deemed void if no notice is filed within two years of the date of death.


Section 90 adds language allowing a purchaser or mortgagee for value and without notice to take the property “free and clear” so long as the purchase or mortgage is before the recording of a lis pendens seeking to set aside or contest the transfer on death instrument.


Finally, the section concerning the statutory form for the notice of death affidavit and acceptance is repealed.


Bill Number: 
SB 2656
Public Act or Public Law Number: 
By: ATG Underwriting Department | Posted on: Thu, 11/20/2014 - 3:36pm