Illinois General Assembly - Full Text of HB3287
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Full Text of HB3287  99th General Assembly

HB3287 99TH GENERAL ASSEMBLY

  
  

 


 
99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB3287

 

Introduced , by Rep. Mary E. Flowers

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 5/11-13.4 new
755 ILCS 5/25-1  from Ch. 110 1/2, par. 25-1

    Amends the Probate Act of 1975. Provides that the terms of a guardianship account established on behalf of a minor at a financial institution must provide for compliance with court orders regarding the establishment and management of the account, and imposes certain other duties upon financial institutions. Provides that an entity may not act under the direction of a small estate affidavit unless the affiant, or his or her agent, has first presented the affidavit before a judge and obtained a court order granting access. Provides that if there is a surviving spouse, but the surviving spouse is not the affiant, the affiant must state the reason that the affiant, rather than the surviving spouse, has prepared the small estate affidavit. Provides that an affidavit not prepared by a surviving spouse must include a notarized statement, signed by the surviving spouse and witnessed by 2 persons unrelated to the affiant, stating that the surviving spouse declines to prepare the affidavit. Provides that if the reason for the surviving spouse's inability to prepare the affidavit is medically related, a letter from the surviving spouse's physician should be attached attesting to the medical condition that makes the surviving spouse unable to complete the affidavit. Provides that if there is no surviving spouse and there is one or more minor child, the affiant must be a court-appointed guardian for one or more of the children. Provides that if the surviving spouse is the affiant, he or she shall affirm that he or she was not separated from the decedent. Makes other changes.


LRB099 07473 HEP 31305 b

 

 

A BILL FOR

 

HB3287LRB099 07473 HEP 31305 b

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 25-1 and adding Section 11-13.4 as follows:
 
6    (755 ILCS 5/11-13.4 new)
7    Sec. 11-13.4. Financial institution; guardianship accounts
8established on behalf of minors.
9    (a) If an account at a financial institution is a
10guardianship account established on behalf of a minor, the
11terms of the account must provide for compliance with orders of
12the court, if any, regarding the establishment and management
13of that account. A financial institution has a duty to inquire
14as to the existence of any court orders when opening a
15guardianship account on behalf of a minor. If the financial
16institution holds an account that is subject to a court order,
17the financial institution must obtain a court order granting
18the authority to release funds from the account. An order
19authorizing the disbursement of funds in the account may be
20granted only upon a showing of good cause.
21    (b) A guardian of a minor that establishes an account with
22a financial institution on behalf of the minor pursuant to a
23court order has a duty to present the court order to the

 

 

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1financial institution at the time the account is opened.
2    (c) As used in this Section, "financial institution"
3includes, but is not limited to, a bank, credit union,
4investment company, savings bank, savings and loan
5association, securities dealer, and trust company.
 
6    (755 ILCS 5/25-1)  (from Ch. 110 1/2, par. 25-1)
7    Sec. 25-1. Payment or delivery of small estate of decedent
8upon affidavit.
9    (a) When any person, corporation, or financial institution
10(1) indebted to or holding personal estate of a decedent, (2)
11controlling the right of access to decedent's safe deposit box
12or (3) acting as registrar or transfer agent of any evidence of
13interest, indebtedness, property or right is furnished with a
14small estate affidavit in substantially the form hereinafter
15set forth, that person, corporation, or financial institution,
16upon examining and approving the documents presented by the
17affiant which are attached to the small estate affidavit, shall
18pay the indebtedness, grant access to the safe deposit box,
19deliver the personal estate or transfer or issue the evidence
20of interest, indebtedness, property or right to persons and in
21the manner specified in the affidavit or to an agent appointed
22as hereinafter set forth.
23    (a-5) A person, corporation, or financial institution may
24not pay the indebtedness, grant access to the safe deposit box,
25deliver the personal estate, or transfer or issue the evidence

 

 

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1of interest, indebtedness, property or right as provided in
2subsection (a) of this Section, unless the affiant, or his or
3her agent, has first obtained a court order as provided in this
4subsection (a-5). A judge shall grant an order under this
5subsection (a-5) if the affiant presents: (i) the small estate
6affidavit; (ii) evidence of notice having been given to the
7heirs or legatees identified in paragraph 10 of the affidavit;
8and (iii) a petition asking the court to find that the
9affidavit does not appear to have been fraudulently executed
10and to grant access to property in the manner specified in
11paragraph 11 of the affidavit. A person, corporation, or
12financial institution has a duty to inquire as to the existence
13of any court orders before taking action under this Section.
14    (b)        Small Estate Affidavit
15    I,        (name of affiant)    , on oath state:
16    1.  (a) My post office address is:                      ;
17        (b) My residence address is:                    ; and
18        (c) I understand that, if I am an out-of-state
19resident, I submit myself to the jurisdiction of Illinois
20courts for all matters related to the preparation and use of
21this affidavit. My agent for service of process in Illinois is:
22
NAME..........................
23
ADDRESS.......................
24
CITY..........................
25
TELEPHONE (IF ANY)............
26I understand that if no person is named above as my agent for

 

 

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1service or, if for any reason, service on the named person
2cannot be effectuated, the clerk of the circuit court of
3......(County) (Judicial Circuit) Illinois is recognized by
4Illinois law as my agent for service of process.
5    2. The decedent's name is            ;
6    3. The date of the decedent's death was            , and I
7have attached a copy of the death certificate hereto.
8    4. The decedent's place of residence immediately before his
9death was            ;
10    5. No letters of office are now outstanding on the
11decedent's estate and no petition for letters is contemplated
12or pending in Illinois or in any other jurisdiction, to my
13knowledge;
14    6. The gross value of the decedent's entire personal
15estate, including the value of all property passing to any
16party either by intestacy or under a will, does not exceed
17$100,000. (Here, list each asset, e.g., cash, stock, and its
18fair market value.);
19    7. (a) All of the decedent's burial and funeral expenses
20and other debts have been paid, or
21    (b) All of the decedent's known unpaid debts are listed and
22classified as follows (include the name, post office address,
23and amount):
24    Class 1: funeral and burial expenses, which include
25    reasonable amounts paid for a burial space, crypt, or
26    niche; a marker on the burial space; and care of the burial

 

 

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1    space, crypt, or niche; expenses of administration; and
2    statutory custodial claims as follows:
3    .........................................................
4    Class 2: the surviving spouse's award or child's award, if
5    applicable, as follows:
6    .........................................................
7    Class 3: debts due the United States, as follows:
8    .........................................................
9    Class 4: money due employees of the decedent of not more
10    than $800 for each claimant for services rendered within 4
11    months prior to the decedent's death and expenses attending
12    the last illness, as follows:
13    .........................................................
14    Class 5: money and property received or held in trust by
15    the decedent which cannot be identified or traced, as
16    follows:
17    .........................................................
18    Class 6: debts due the State of Illinois and any county,
19    township, city, town, village, or school district located
20    within Illinois, as follows:
21    .........................................................
22    Class 7: all other claims, including medical and credit
23    card bills, as follows:
24    ................................
25(Strike either 7(a) or 7(b)).
26    7.5. I understand that all valid claims against the

 

 

 

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1decedent's estate described in paragraph 7 must be paid by me
2from the decedent's estate before any distribution is made to
3any heir or legatee. I further understand that the decedent's
4estate should pay all claims in the order set forth above, and
5if the decedent's estate is insufficient to pay the claims in
6any one class, the claims in that class shall be paid pro rata.
7    8. There is no known unpaid claimant or contested claim
8against the decedent, except as stated in paragraph 7.
9    9. (a) The names and places of residence of any surviving
10spouse, minor children and adult dependent* children of the
11decedent are as follows:
12Name andPlace ofAge of
13RelationshipResidenceminor child
14*(Note: An adult dependent child is one who is unable to
15maintain himself and is likely to become a public charge.)
16    (b) The award allowable to the surviving spouse of a
17decedent who was an Illinois resident is $.......... ($20,000,
18plus $10,000 multiplied by the number of minor children and
19adult dependent children who resided with the surviving spouse
20at the time of the decedent's death. If any such child did not
21reside with the surviving spouse at the time of the decedent's
22death, so indicate).
23    (c) If there is no surviving spouse, the award allowable to
24the minor children and adult dependent children of a decedent
25who was an Illinois resident is $.......... ($20,000, plus

 

 

 

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1$10,000 multiplied by the number of minor children and adult
2dependent children), to be divided among them in equal shares.
3If there is no surviving spouse and there are minor children,
4the affiant must be a court appointed guardian for one or more
5of the children. If this provision applies, the date of the
6court order making this appointment was .........., and I have
7attached a copy of the court order.
8    10. (a) The decedent left no will. The names, places of
9residence and relationships of the decedent's heirs, and the
10portion of the estate to which each heir is entitled under the
11law, after all just debts and expenses described in paragraph 7
12are fully paid, where decedent died intestate are as follows:
13Name, relationshipAge ofPortion of
14and place of residenceminorEstate
15OR
16    (b) The decedent left a will, which has been filed with the
17clerk of an appropriate court. A certified copy of the will on
18file is attached. To the best of my knowledge and belief the
19will on file is the decedent's last will and was signed by the
20decedent and the attesting witnesses as required by law and
21would be admittable to probate. The names and places of
22residence of the legatees and the portion of the estate, if
23any, to which each legatee is entitled are as follows:
24Name, relationshipAge ofPortion of
25and place of residenceminorEstate

 

 

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1    (Strike either 10(a) or 10(b)).
2    (c) Affiant is unaware of any dispute or potential conflict
3as to the heirship or will of the decedent.
4    10.1. I, ............(the affiant) state that I am the
5surviving spouse and the decedent and I resided together as
6husband and wife and we were not legally separated, or
7otherwise separated, at the time of decedent's death.
8    10.2. I, ........... (the affiant) state that my
9relationship to the decedent is ................. and (check
10all that apply):
11... there is no surviving spouse; or
12... there is a surviving spouse, but the surviving spouse is:
13    ... unable to prepare the small estate affidavit for
14medical reasons as shown by the attached letter of a physician
15for the surviving spouse, based upon the physician's
16examination of the surviving spouse within 90 days prior to the
17date of the affidavit, attesting to and describing this
18disabling medical condition; or
19    ... has declined, refused, or asked affiant to prepare the
20small estate affidavit. The reason that the affiant has
21prepared this small estate affidavit rather than the surviving
22spouse is that (state here the precise time, date, and
23circumstances of the surviving spouse declining, refusing, or
24asking affiant to prepare the small estate affidavit):
25..........................................................
26    Attached is a statement of the surviving spouse in which

 

 

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1the surviving spouse expressly declines or states that he or
2she refuses to prepare the small estate affidavit or expressly
3requests that the affiant prepare the small estate affidavit.
4This statement must be signed by the surviving spouse,
5witnessed by 2 persons unrelated to the affiant, and be
6notarized.
7    10.3. My relationship to the decedent or the decedent's
8estate is as follows:........................................
9    10.5. (The following paragraph should appear in bold type
10and in not less than 14-point font):
11        I understand that the decedent's estate must be
12    distributed first to satisfy claims against the decedent's
13    estate as set forth in paragraph 7.5 of this affidavit
14    before any distribution is made to any heir or legatee. By
15    signing this affidavit, I agree to indemnify and hold
16    harmless all creditors of the decedent's estate, the
17    decedent's heirs and legatees, and other persons,
18    corporations, or financial institutions relying upon this
19    affidavit who incur any loss because of reliance on this
20    affidavit, up to the amount lost because of any act or
21    omission by me. I further understand that any person,
22    corporation, or financial institution recovering under
23    this indemnification provision shall be entitled to
24    reasonable attorney's fees and the expenses of recovery.
25    11. After payment by me from the decedent's estate of all
26debts and expenses listed in paragraph 7, any remaining

 

 

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1property described in paragraph 6 of this affidavit should be
2distributed as follows:
 
3    Name        Specific sum or property to be distributed
 
 
4The foregoing statement is made under the penalties of
5perjury*.
6
.........................
7
Signature of Affiant
     
8Signed and sworn before me on (insert date).
 
9
.........................
10
Notary Public
11*(Note: A fraudulent statement made under the penalties of
12perjury is perjury, as defined in Section 32-2 of the Criminal
13Code of 2012.)
14    (c) Appointment of Agent. If safe deposit access is
15involved or if sale of any personal property is desirable to
16facilitate distribution pursuant to the small estate
17affidavit, the affiant under the small estate affidavit may in
18writing appoint one or more persons as the affiant's agent for
19that purpose, provided that the writing contains the signature
20of each person, is witnessed by 2 persons unrelated to the
21affiant and is notarized, and also shows the written consent of
22the surviving spouse and all adult children. The agent shall

 

 

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1have power, with without court approval, to gain access to,
2sell, and distribute the property in the manner specified in
3paragraphs 7.5 and 11 of the affidavit; and the payment,
4delivery, transfer, access or issuance shall be made or granted
5to or on the order of the agent. The affiant may appoint
6himself or herself as the designated representative to exercise
7the powers and perform the duties of an agent described in this
8subsection (c).
9    (d) Reliance and Release. Any person, corporation, or
10financial institution who, upon examination and approval of all
11documents presented by the affiant with this small estate
12affidavit, acts in good faith reliance on a copy of a document
13purporting to be a small estate affidavit that is substantially
14in compliance with subsection (b) of this Section shall be
15fully protected and released upon payment, delivery, transfer,
16access or issuance pursuant to such a document to the same
17extent as if the payment, delivery, transfer, access or
18issuance had been made or granted to the representative of the
19estate. Such person, corporation, or financial institution is
20not required to see to the application or disposition of the
21property; but each person to whom a payment, delivery,
22transfer, access or issuance is made or given is answerable
23therefor to any person having a prior right and is accountable
24to any representative of the estate.
25    (e) Distributions pursuant to an affidavit substantially
26in the form set forth in subsection (b) of this Section may be

 

 

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1made to the affiant, if so specified in paragraph 11,
2notwithstanding the disclosure of known unpaid debts. The
3affiant, acting on behalf of the decedent's estate, is
4obligated to pay all valid claims against the decedent's estate
5before any distribution is made to any heir or legatee. The
6affiant signing the small estate affidavit prepared pursuant to
7subsection (b) of this Section shall indemnify and hold
8harmless all creditors, heirs, and legatees of the decedent and
9other persons, corporations, or financial institutions relying
10upon the affidavit who incur loss because of such reliance.
11That indemnification shall only be up to the amount lost
12because of the act or omission of the affiant. Any person,
13corporation, or financial institution recovering under this
14subsection (e) shall be entitled to reasonable attorney's fees
15and the expenses of recovery.
16    (f) The affiant of a small estate affidavit who is a
17non-resident of Illinois submits himself or herself to the
18jurisdiction of Illinois courts for all matters related to the
19preparation or use of the affidavit. The affidavit shall
20provide the name, address, and phone number of a person whom
21the affiant names as his agent for service of process. If no
22such person is named or if, for any reason, service on the
23named person cannot be effectuated, the clerk of the circuit
24court of the county or judicial circuit of which the decedent
25was a resident at the time of his death shall be the agent for
26service of process.

 

 

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1    (g) Any action properly taken under this Section, as
2amended by Public Act 93-877, on or after August 6, 2004 (the
3effective date of Public Act 93-877) is valid regardless of the
4date of death of the decedent.
5    (h) The changes made by this amendatory Act of the 96th
6General Assembly apply to a decedent whose date of death is on
7or after the effective date of this amendatory Act of the 96th
8General Assembly.
9    (i) The changes made by this amendatory Act of the 98th
10General Assembly apply to a decedent whose date of death is on
11or after the effective date of this amendatory Act of the 98th
12General Assembly.
13(Source: P.A. 97-1150, eff. 1-25-13; 98-836, eff. 1-1-15.)