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Full Text of SB2075  97th General Assembly

SB2075 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB2075

 

Introduced 2/10/2011, by Sen. Kirk W. Dillard

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 5/2-4  from Ch. 110 1/2, par. 2-4

    Amends the Probate Act of 1975. In provisions concerning inheritance from or through a natural parent and for determining the property rights of any person under any instrument, provides that an adopted child is not a child of a natural parent whose parental rights were terminated by the adoption (rather than that an adopted child is not a child of a natural parent), nor is the child a descendant of a natural parent or of any lineal or collateral kindred of a natural parent, unless specified conditions apply.


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A BILL FOR

 

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1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Probate Act of 1975 is amended by changing
5Section 2-4 as follows:
 
6    (755 ILCS 5/2-4)  (from Ch. 110 1/2, par. 2-4)
7    Sec. 2-4. Adopted child.
8    (a) An adopted child is a descendant of the adopting parent
9for purposes of inheritance from the adopting parent and from
10the lineal and collateral kindred of the adopting parent and
11for the purpose of determining the property rights of any
12person under any instrument, unless the adopted child is
13adopted after attaining the age of 18 years and the child never
14resided with the adopting parent before attaining the age of 18
15years, in which case the adopted child is a child of the
16adopting parent but is not a descendant of the adopting parent
17for the purposes of inheriting from the lineal or collateral
18kindred of the adopting parent. An adopted child and the
19descendants of the child who is related to a decedent through
20more than one line of relationship shall be entitled only to
21the share based on the relationship which entitles the child or
22descendant to the largest share. The share to which the child
23or descendant is not entitled shall be distributed in the same

 

 

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1manner as if the child or descendant never existed. For
2purposes of inheritance, the changes made by this amendatory
3Act of 1997 apply to all decedents who die on or after January
41, 1998. For the purpose of determining the property rights of
5any person under any instrument, the changes made by this
6amendatory Act of 1997 apply to all instruments executed on or
7after January 1, 1998.
8    (b) An adopting parent and the lineal and collateral
9kindred of the adopting parent shall inherit property from an
10adopted child to the exclusion of the natural parent and the
11lineal and collateral kindred of the natural parent in the same
12manner as though the adopted child were a natural child of the
13adopting parent, except that the natural parent and the lineal
14or collateral kindred of the natural parent shall take from the
15child and the child's kindred the property that the child has
16taken from or through the natural parent or the lineal or
17collateral kindred of the natural parent by gift, by will or
18under intestate laws.
19    (c) For purposes of inheritance from the child and his or
20her kindred (1) the person who at the time of the adoption is
21the spouse of an adopting parent is an adopting parent and (2)
22a child is adopted when the child has been or is declared by
23any court to have been adopted or has been or is declared or
24assumed to be the adopted child of the testator or grantor in
25any instrument bequeathing or giving property to the child.
26    (d) For purposes of inheritance from or through a natural

 

 

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1parent and for determining the property rights of any person
2under any instrument, an adopted child is not a child of a
3natural parent whose parental rights were terminated by the
4adoption, nor is the child a descendant of a natural parent or
5of any lineal or collateral kindred of a natural parent, unless
6one or more of the following conditions apply:
7        (1) The child is adopted by a descendant or a spouse of
8    a descendant of a great-grandparent of the child, in which
9    case the adopted child is a child of both natural parents.
10        (2) A natural parent of the adopted child died before
11    the child was adopted, in which case the adopted child is a
12    child of that deceased parent and an heir of the lineal and
13    collateral kindred of that deceased parent.
14        (3) The contrary intent is demonstrated by the terms of
15    the instrument by clear and convincing evidence.
16    An heir of an adopted child who, by reason of this
17subsection (d), is not a child of a natural parent is also not
18an heir of that natural parent or of the lineal or collateral
19kindred of that natural parent. A fiduciary who has actual
20knowledge that a person has been adopted, but who has no actual
21knowledge that any of paragraphs (1), (2), or (3) of this
22subsection apply to the adoption, shall have no liability for
23any action taken or omitted in good faith on the assumption
24that the person is not a descendant or heir of the natural
25parent. The preceding sentence is intended to affect only the
26liability of the fiduciary and shall not affect the property

 

 

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1rights of any person.
2    For purposes of inheritance, the changes made by this
3amendatory Act of 1997 apply to all decedents who die on or
4after January 1, 1998. For the purpose of determining the
5property rights of any person under any instrument, the changes
6made by this amendatory Act of 1997 apply to all instruments
7executed on or after January 1, 1998.
8    (e) For the purpose of determining the property rights of
9any person under any instrument executed on or after September
101, 1955, an adopted child is deemed a child born to the
11adopting parent unless the contrary intent is demonstrated by
12the terms of the instrument by clear and convincing evidence.
13    (f) After September 30, 1989, a child adopted at any time
14before or after that date is deemed a child born to the
15adopting parent for the purpose of determining the property
16rights of any person under any instrument executed before
17September 1, 1955, unless one or more of the following
18conditions applies:
19        (1) The intent to exclude such child is demonstrated by
20    the terms of the instrument by clear and convincing
21    evidence.
22        (2) An adopting parent of an adopted child, in the
23    belief that the adopted child would not take property under
24    an instrument executed before September 1, 1955, acted to
25    substantially benefit such adopted child when compared to
26    the benefits conferred by such parent on the child or

 

 

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1    children born to the adopting parent. For purposes of this
2    paragraph:
3            (i) "Acted" means that the adopting parent made one
4        or more gifts during life requiring the filing of a
5        federal gift tax return or at death (including gifts
6        which take effect at death), or exercised or failed to
7        exercise powers of appointment or other legal rights,
8        or acted or failed to act in any other way.
9            (ii) Any action which substantially benefits the
10        adopted child shall be presumed to have been made in
11        such a belief unless a contrary intent is demonstrated
12        by clear and convincing evidence.
13    (g) No fiduciary or other person shall be liable to any
14other person for any action taken or benefit received prior to
15October 1, 1989, under any instrument executed before September
161, 1955, that was based on a good faith interpretation of
17Illinois law regarding the right of adopted children to take
18property under such an instrument.
19    (h) No fiduciary under any instrument executed before
20September 1, 1955, shall have any obligation to determine
21whether any adopted child has become a taker under such
22instrument due to the application of subsection (f) unless such
23fiduciary has received, on or before the "notice date", as
24defined herein, written evidence that such adopted child has
25become a taker of property. A fiduciary who has received such
26written evidence shall determine in good faith whether or not

 

 

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1any of the conditions specified in subsection (f) exists but
2shall have no obligation to inquire further into whether such
3adopted child is a taker of property pursuant to such
4subsection. Such written evidence shall include a sworn
5statement by the adopted child or his or her parent or guardian
6that such child is adopted and to the best of the knowledge and
7belief of such adopted child or such parent or guardian, none
8of the conditions specified in such subsection exists. The
9"notice date" shall be the later of February 1, 1990, or the
10expiration of 90 days after the date on which the adopted child
11becomes a taker of property pursuant to the terms of any
12instrument executed before September 1, 1955.
13    (i) A fiduciary shall advise all persons known to him or
14her to be subject to these provisions of the existence of the
15right to commence a judicial proceeding to prevent the adopted
16child from being a taker of property under the instrument.
17(Source: P.A. 90-237, eff. 1-1-98.)