Illinois Renunciation and Disclaimer of Real Property Interest
Illinois Compiled Statutes
CHAPTER 755 ESTATES
Probate Act of 1975
ARTICLE II DESCENT AND DISTRIBUTION
Disclaimer.
(a) Right to Disclaim Interest in Property. A person
to whom any property or interest therein passes, by whatever means, may
disclaim the property or interest in whole or in part by delivering or
filing a written disclaimer as hereinafter provided. A disclaimer may be
of a fractional share or undivided interest, a specifically identifiable
asset, portion or amount, any limited interest or estate or any property
or interest derived through right of survivorship. A power (as defined
in "An Act Concerning Termination of Powers", approved May 25, 1943, as
amended)with respect to property shall be deemed to be an interest
in such property. The representative of a decedent or ward may disclaim
on behalf of the decedent or ward with leave of court. The court may approve
the disclaimer by a representative of a decedent if it finds that
the disclaimer benefits the estate as a whole and those interested in the
estate generally even if the disclaimer alters the distribution of the
property, part or interest disclaimed. The court may approve the
disclaimer by a representative of a ward if it finds that it benefits those
interested in the estate generally and is not materially detrimental
to the interests of the ward. A disclaimer by a representative of a decedent
or ward may be made without leave of court if a will or other instrument
signed by the decedent or ward designating the representative specifically
authorizes the representative to disclaim without court approval.
The right to disclaim granted by this Section exists irrespective of any
limitation on the interest of the disclaimant in the nature of a spendthrift
provision or similar restriction.
(b) Form of Disclaimer. The disclaimer shall (1) describe
the property or part or interest disclaimed, (2) be signed
by the disclaimant or his representative and (3) declare the disclaimer
and the extent thereof.
(c) Delivery of Disclaimer. The disclaimer shall be delivered
to the transferor or donor or his representative, or to the trustee or
other person who has legal title to the property, part or interest
disclaimed, or, if none of the foregoing is readily determinable, shall
be either delivered to a person having possession of the property, part
or interest or who is entitled thereto by reason of the disclaimer, or
filed or recorded as hereinafter provided. In the case of an interest
passing by reason of the death of any person, an executed counterpart of
the disclaimer may be filed with the clerk of the circuit court in the
county in which the estate of the decedent is administered, or, if
administration has not been commenced, in which it could be commenced.
If an interest in real property is disclaimed, an executed counterpart
of the disclaimer may be recorded in the office of the recorder in the
county in which the real estate lies, or, if the title to the real
estate is registered under "An Act concerning land titles", approved May
1, 1897, as amended, may be filed in the office of the registrar of titles
of such county.
(d) Effect of Disclaimer. Unless expressly provided otherwise
in an instrument transferring the property or creating the interest
disclaimed, the property, part or interest disclaimed shall descend or
be distributed (1) if a present interest (a) in the case of a transfer
by reason of the death of any person, as if the disclaimant had predeceased
the decedent; (b) in the case of a transfer by revocable instrument
or contract, as if the disclaimant had predeceased the date the maker no
longer has the power to transfer to himself or another the entire legal
and equitable ownership of the property or interest; or (c)in the case
of any other inter vivos transfer, as if the disclaimant had predeceased
the date of the transfer; and (2) if a future interest, as if the disclaimant
had predeceased the event which determines that the taker of the property
or interest has become finally ascertained and his interest has become
indefeasibly fixed both in quality and quantity; and in each case the disclaimer
shall relate back to such date for all purposes. A disclaimer of
property or an interest in property shall not preclude any disclaimant
from receiving the same property in another capacity or from receiving
other interests in the property to which the disclaimer relates. Unless
expressly provided otherwise in an instrument transferring the property
or creating the interest disclaimed, a future interest limited to take
effect at or after the termination of the estate or interest disclaimed
shall accelerate and take effect in possession and enjoyment to the same
extent as if the disclaimant had died before the date to which the disclaimer
relates back. A disclaimer made pursuant to this Section shall be irrevocable
and shall be binding upon the disclaimant and all persons claiming by,
through or under the disclaimant.
(e) Waiver and Bar.The right to disclaim property or a part thereof
or an interest therein shall be barred by (1) a judicial sale of the property,
part or interest before the disclaimer is effected; (2) an assignment,
conveyance, encumbrance, pledge, sale or other transfer of the property,
part or interest, or a contract therefor, by the disclaimant or his representative;
(3) a written waiver of the right to disclaim; or (4) an acceptance of
the property, part or interest by the disclaimant or his representative.
Any person may presume, in the absence of actual knowledge to the contrary,
that a disclaimer delivered or filed as provided in this Section is a valid
disclaimer which is not barred by the preceding provisions of this paragraph.
A written waiver of the right to disclaim may be made by any person or
his representative and an executed counterpart of a waiver of the right
to disclaim may be recorded or filed, all in the same manner as provided
in this Section with respect to a disclaimer. In every case, acceptance
must be affirmatively proved in order to constitute a bar to a disclaimer.
An acceptance of property or an interest in property shall include the
taking of possession, the acceptance of delivery or the receipt of
benefits of the property or interest; except that (1) in the case of an
interest in joint tenancy with right of survivorship such acceptance
shall extend only to the fractional share of such property or interest
determined by dividing the number one by the number of joint tenants, and
(2) in the case of a ward, such acceptance shall extend only to property
actually received by or on behalf of the ward or his representative during
his minority or incapacity. The mere lapse of time or creation of an interest,
in joint tenancy with right of survivorship or otherwise, with or
without knowledge of the interest on the part of the disclaimant,
shall not constitute acceptance for purposes of this Section.
This Section does not abridge the right of any person to assign,convey,
release, renounce or disclaim any property or interest therein arising
under any other statute or which arose under prior law. Any interest in
real or personal property which exists on or after the effective date of
this Section may be disclaimed after that date in the manner provided herein,
but no interest which has arisen prior to that date in any person other
than the disclaimant shall be destroyed or diminished by any action of
the disclaimant taken pursuant to this Section.
Chap. 755, Art. II, Sec. 2-7.
(Source: P.A. 83-1362.)
Renunciation of will by spouse.
(a) If a will is renounced by the testator's surviving
spouse, whether or not the will contains any provision for
the benefit of the surviving spouse, the surviving spouse is entitled to
the following share of the testator's estate after payment of all just
claims: 1/3 of the entire estate if the testator leaves a descendant or
1/2 of the entire estate if the testator leaves no descendant.
(b) In order to renounce a will, the testator's surviving spouse
must file in the court in which the will was admitted to probate a written
instrument signed by the surviving spouse and declaring the renunciation.
The time of filing the instrument is: (1) within 7 months after the admission
of the will to probate or (2) within such further time as may be
allowed by the court if, within 7 months after the admission of the will
to probate or before the expiration of any extended period, the surviving
spouse files a petition therefor setting forth that litigation is pending
that affects the share of the surviving spouse in the estate. The filing
of the instrument is a complete bar to any claim of the surviving spouse
under the will.
(c) If a will is renounced in the manner provided by this Section,
any future interest which is to take effect in possession or enjoyment
at or after the termination of an estate or other interest given by the
will to the surviving spouse takes effect as though the surviving spouse
had predeceased the testator, unless the will expressly provides that in
case of renunciation the future interest shall not be accelerated.
(d) If a surviving spouse of the testator renounces the will and
the legacies to other persons are thereby diminished or increased in value,
the court, upon settlement of the estate, shall abate from or add to the
legacies in such a manner as to apportion the loss or advantage among the
legatees in proportion to the amount and value of their legacies.
Chap. 755, Art. II, Sec. 2-8.
(Source: P.A. 79-328.)
