SB3583 103RD GENERAL ASSEMBLY

LRB103 37527 JRC 67650 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3583

Introduced 2/9/2024, by Sen. Laura Fine

SYNOPSIS AS INTRODUCED:

760 ILCS 3/103

Amends the Illinois Trust Code. Amends the definition of "charitable trust" to exclude: (i) a testamentary trust that provides for ancillary charitable gifts or distributions in addition to posthumous distributions to persons, not charitable organizations, that has become irrevocable through the death of the testator and is capable of being settled and terminated within 18 months of such death, during such period of settlement and termination; or (ii) a testamentary estate that provides for ancillary charitable gifts or bequests in addition to bequests to persons not charitable organizations.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Trust Code is amended by changing Section 103 as follows:

(760 ILCS 3/103)

Sec. 103. Definitions. In this Code:

(1) "Action", with respect to an act of a trustee, includes a failure to act.

(1.5) "Appointive property" means the property or property interest subject to a power of appointment.

(2) "Ascertainable standard" means a standard relating to an individual's health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code and any applicable regulations.

(3) "Beneficiary" means a person that:

(A) has a present or future beneficial interest in a trust, vested or contingent, assuming nonexercise of powers of appointment, excluding the right of a settlor to be reimbursed for tax obligations as provided in paragraph (3) of subsection (a) of Section 505;

(B) in a capacity other than that of trustee, holds a power of appointment over trust property; or

(C) is an identified charitable organization that will or may receive distributions under the terms of the trust. "Beneficiary" does not include a permissible appointee of power of appointment, other than the holder of a presently exercisable general power of appointment, until the power is exercised in favor of such appointee.

(4) "Charitable interest" means an interest in a trust that:

(A) is held by an identified charitable organization and makes the organization a qualified beneficiary;

(B) benefits only charitable organizations and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary; or

(C) is held solely for charitable purposes and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary.

(5) "Charitable organization" means:

(A) a person, other than an individual, organized and operated exclusively for charitable purposes; or

(B) a government or governmental subdivision, agency, or instrumentality, to the extent it holds funds exclusively for a charitable purpose.

(6) "Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, municipal or other governmental purpose, or another purpose the achievement of which is beneficial to the community.

(7) "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose but excludes:

(A) a testamentary trust that provides for ancillary charitable gifts or distributions in addition to posthumous distributions to persons, not charitable organizations, that has become irrevocable through the death of the testator and is capable of being settled and terminated within 18 months of such death, during such period of settlement and termination; or

(B) a testamentary estate that provides for ancillary charitable gifts or bequests in addition to bequests to persons not charitable organizations.

(8) "Community property" means all personal property, wherever situated, that was acquired as or became, and remained, community property under the laws of another jurisdiction, and all real property situated in another jurisdiction that is community property under the laws of that jurisdiction.

(9) "Current beneficiary" means a beneficiary that on the date the beneficiary's qualification is determined is a distributee or permissible distributee of trust income or principal. The term "current beneficiary" includes the holder of a presently exercisable general power of appointment but does not include a person who is a beneficiary only because the person holds any other power of appointment. In a revocable trust, "current beneficiary" does not include a person who may receive trust assets only through the exercise of a power to make a gift on behalf of the settlor.

(10) "Directing party" means any investment trust advisor, distribution trust advisor, or trust protector.

(11) "Donor", with reference to a power of appointment, means a person that creates a power of appointment.

(12) "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment.

(13) "General power of appointment" means a power of appointment exercisable in favor of a powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.

(14) "Guardian of the estate" means a person appointed by a court to administer the estate of a minor or adult individual.

(15) "Guardian of the person" means a person appointed by a court to make decisions regarding the support, care, education, health, and welfare of a minor or adult individual.

(16) "Incapacitated" or "incapacity" means the inability of an individual to manage property or business affairs because the individual is a minor, adjudicated incompetent, has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or is at a location that is unknown and not reasonably ascertainable. Without limiting the ways in which incapacity may be established, an individual is incapacitated if:

(i) a plenary guardian has been appointed for the individual under subsection (c) of Section 11a-12 of the Probate Act of 1975;

(ii) a limited guardian has been appointed for the individual under subsection (b) of Section 11a-12 of the Probate Act of 1975 and the court has found that the individual lacks testamentary capacity; or

(iii) the individual was examined by a licensed physician who determined that the individual was incapacitated and the physician made a signed written record of the physician's determination within 90 days after the examination and no licensed physician subsequently made a signed written record of the physician's determination that the individual was not incapacitated within 90 days after examining the individual.

(17) "Internal Revenue Code" means the Internal Revenue Code of 1986 as amended from time to time and includes corresponding provisions of any subsequent federal tax law.

(18) "Interested persons" means: (A) the trustee; and (B) all beneficiaries, or their respective representatives determined after giving effect to the provisions of Article 3, whose consent or joinder would be required in order to achieve a binding settlement were the settlement to be approved by the court. "Interested persons" includes a trust advisor, investment advisor, distribution advisor, trust protector, or other holder, or committee of holders, of fiduciary or nonfiduciary powers, if the person then holds powers material to a particular question or dispute to be resolved or affected by a nonjudicial settlement in accordance with Section 111 or by a judicial proceeding.

(19) "Interests of the beneficiaries" means the beneficial interests provided in the trust instrument.

(20) "Jurisdiction", with respect to a geographic area, includes a State or country.

(21) "Legal capacity" means that the person is not incapacitated.

(22) "Nongeneral power of appointment" means a power of appointment that is not a general power of appointment.

(22.5) "Permissible appointee" means a person in whose favor a powerholder may exercise a power of appointment.

(23) "Person" means an individual, estate, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(24) "Power of appointment" means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. The term "power of appointment" does not include a power of attorney.

(25) "Power of withdrawal" means a presently exercisable general power of appointment other than a power:

(A) exercisable by the powerholder as trustee that is limited by an ascertainable standard; or

(B) exercisable by another person only upon consent of the trustee or a person holding an adverse interest.

(26) "Powerholder" means a person in which a donor creates a power of appointment.

(27) "Presently exercisable power of appointment" means a power of appointment exercisable by the powerholder at the relevant time. The term "presently exercisable power of appointment":

(A) includes a power of appointment exercisable only after the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after:

(i) the occurrence of the specified event;

(ii) the satisfaction of the ascertainable standard; or

(iii) the passage of the specified time; and

(B) does not include a power exercisable only at the powerholder's death.

(28) "Presumptive remainder beneficiary" means a beneficiary of a trust, as of the date of determination and assuming nonexercise of all powers of appointment, who either: (A) would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date; or (B) would be a distributee or permissible distributee of trust income or principal if the interests of all distributees currently eligible to receive income or principal from the trust terminated on that date without causing the trust to terminate.

(29) "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.

(30) "Qualified beneficiary" means each current beneficiary and presumptive remainder beneficiary.

(31) "Revocable", as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest. A revocable trust is deemed revocable during the settlor's lifetime.

(32) "Settlor", except as otherwise provided in Sections 113 and 1225, means a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.

(33) "Sign" means, with present intent to authenticate or adopt a record:

(A) to execute or adopt a tangible symbol; or

(B) to attach to or logically associate with the record an electronic symbol, sound, or process.

(34) "Spendthrift provision" means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest.

(35) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term "state" includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.

(36) "Terms of the trust" means:

(A) except as otherwise provided in paragraph (B), the manifestation of the settlor's intent regarding a trust's provisions as:

(i) expressed in the trust instrument; or

(ii) established by other evidence that would be admissible in a judicial proceeding; or

(B) the trust's provisions as established, determined, or modified by:

(i) a trustee or other person in accordance with applicable law;

(ii) a court order; or

(iii) a nonjudicial settlement agreement under Section 111.

(37) "Trust" means (A) a trust created by will, deed, agreement, declaration, or other written instrument, or (B) an oral trust under Section 407.

(38) "Trust accounting" means one or more written communications from the trustee with respect to the accounting year that describe: (A) the trust property, liabilities, receipts, and disbursements, including the amount of the trustee's compensation; (B) the value of the trust assets on hand at the close of the accounting period, to the extent feasible; and (C) all other material facts related to the trustee's administration of the trust.

(39) "Trust instrument" means the written instrument stating the terms of a trust, including any amendment, any court order or nonjudicial settlement agreement establishing, construing, or modifying the terms of the trust in accordance with Section 111, Sections 410 through 416, or other applicable law, and any additional trust instrument under Article 12.

(40) "Trustee" includes an original, additional, and successor trustee, and a co-trustee.

(41) "Unascertainable beneficiary" means a beneficiary whose identity is uncertain or not reasonably ascertainable.

(Source: P.A. 101-48, eff. 1-1-20; 102-279, eff. 1-1-22.)