Real Estate Law

(Crowe, D-Maryville) provides that an electronic will shall be executed by the testator or by some person in the testator's presence and at the testator's direction, and attested to in the testator's presence by two or more credible witnesses. Provides for the revocation of an electronic will. Provides that an electronic will is a digital asset and any person or business in possession of an electronic will is a custodian.

Provides that a person may witness any document, other than a will, using audio-video communication between the individual's signing the document and the witness. Provides for remote attestation for a will and methods for determining a signer's or testator's identity.

Provides for the verification of an electronic will when a petition to have an electronic will admitted to probate is filed. Provides for: admission of a paper copy of an electronic will; admission of a will attested to by a witness who is physically present; admission of a will attested to by a remote witness; and admission of a will signed under the Electronic Commerce Security Act.

Provides that nothing prohibits any party from introducing evidence of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate the will when being admitted. Provides for: formal proof of a will with a remote witness; formal proof of an electronic will; and formal proof of a will witnessed under the Electronic Commerce Security Act.

Senate Bill 72 has just been introduced. 

(Barickman, R-Bloomington ) amends the Real Property Transfer on Death Instrument Act to make numerous changes since its enactment in 2012 to reflect practitioners' experience with the original Act. It has just been introduced. The changes are as follows: 

(1) The definition of owner is revised to reflect that only individuals acting in their own personal capacity can execute a TODI.

(2) The term “residential real estate” is replaced throughout the text with the term “real property.” Illinois is the only state to date that limits the availability of a TODI to residential real estate. 

(3) Clarifies that a TODI can transfer the real property to the beneficiary in any form of ownership recognized and valid under state law. 

(4) Clarifies that a TODI can designate the trustee of a trust that may be amended, modified, revoked or terminated after the date the TODI is executed, and a trustee under a will of another individual who has predeceased the owner.

(5) Clarifies that a TODI may not be admitted to probate as the will of the owner or as a codicil to the owner’s will.

(6) Clarifies that a TODI witnessed by only one witness, even if notarized, is not a valid TODI. It also clarifies that the attestation clause language and formalities to be followed in executing the TODI require only “substantial compliance.”

(7) Clarifies that the owner may transfer the real property at any time without regard to the fact a TODI is filed. A transfer of the real property effectively revokes the TODI, not by means of a revocation, but by the doctrine of extinction by ademption.

(8) Regarding the default rules that govern when two or more beneficiaries are designated, Illinois law presumes when property is deeded or transferred to two or more parties, the parties take equal shares as tenants in common and not as joint tenants unless otherwise indicated. Stating the default rule, though perhaps not legally necessary, will avoid a possible ambiguity and clarify the default rule governing lapses and concurrent ownership.

(9) Clarifies that unless waived by the surviving spouse, a TODI is subject to renunciation by the surviving spouse and provides the procedure by which the rights are to be exercised.

(10) Clarifies the currently vague language on the rights of creditors with more specific language borrowed from the Uniform Law Commission but consistent with long-standing Illinois law.

(Barickman, R-Bloomington) amends the Conveyances Act to create a statutory form for special warranty deeds. Provides that every deed in substance in the specified form shall be deemed and held a conveyance in fee simple, to the grantee, his or her heirs and assigns, with specified covenants on the part of the grantor. It has just been introduced.