Illinois General Assembly - Full Text of HB5670
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Full Text of HB5670  98th General Assembly

HB5670 98TH GENERAL ASSEMBLY

  
  

 


 
98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5670

 

Introduced , by Rep. Linda Chapa LaVia

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 5/25-1  from Ch. 110 1/2, par. 25-1
755 ILCS 15/1  from Ch. 17, par. 1501

    Amends the Probate Act of 1975. Requires a person executing a small estate affidavit to list and classify the debts of the decedent. Provides that all valid claims against the decedent's estate must be paid before any distribution is made to any heir or legatee. Provides that the decedent's estate should pay all claims in the order set forth in the listed classifications, and if the decedent's estate is insufficient to pay the claims in any one class, the claims in that class shall be paid pro rata. Requires the affiant to describe his or her relationship to the decedent or decedent's estate. Requires the affiant to agree to indemnify and hold harmless persons and entities who incur any loss because of reliance on the affidavit, up to the amount lost because of any act or omission by the affiant. Requires the affiant to state that any person, corporation, or financial institution recovering under the new provisions shall be entitled to reasonable attorney's fees and the expenses of recovery. Provides that the small estate affidavit shall be notarized. Provides that parties that act in good faith reliance on a copy of a document purporting to be a small estate affidavit shall be fully protected and released upon fulfillment of requirements under such a document to the same extent as if the party had been complying with requests of the representative of the estate. Provides that distributions pursuant to an affidavit may be made to the affiant notwithstanding the disclosure of known unpaid debts. Provides that the affiant (instead of other specified persons) may in writing appoint one or more persons, or himself or herself, to access the safe deposit box of a decedent. Adds applicability language. Makes corresponding changes. Amends the Safety Deposit Box Opening Act. Provides that the lessor of a safety deposit box shall not open the box in accordance with the Act if the lessor has received a copy of a small estate affidavit. Provides that the lessor shall authorize a representative of a decedent's estate or a person designated in a small estate affidavit, upon presentation of letters of office, other applicable court order, or small estate affidavit, to open the box and examine and remove the contents.


LRB098 19155 HEP 54307 b

 

 

A BILL FOR

 

HB5670LRB098 19155 HEP 54307 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 as follows:
 
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, or corporation, or financial
10institution (1) indebted to or holding personal estate of a
11decedent, (2) controlling the right of access to decedent's
12safe deposit box or (3) acting as registrar or transfer agent
13of any evidence of interest, indebtedness, property or right is
14furnished with a small estate affidavit in substantially the
15form hereinafter set forth, that person, or corporation, or
16financial institution shall pay the indebtedness, grant access
17to the safe deposit box, deliver the personal estate or
18transfer or issue the evidence of interest, indebtedness,
19property or right to persons and in the manner specified in
20paragraph 11 of the affidavit or to an agent appointed as
21hereinafter set forth.
22    (b)        Small Estate Affidavit
23    I,        (name of affiant)    , on oath state:

 

 

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1    1.  (a) My post office address is:                      ;
2        (b) My residence address is:                    ; and
3        (c) I understand that, if I am an out-of-state
4resident, I submit myself to the jurisdiction of Illinois
5courts for all matters related to the preparation and use of
6this affidavit. My agent for service of process in Illinois is:
7
NAME..........................
8
ADDRESS.......................
9
CITY..........................
10
TELEPHONE (IF ANY)............
11I understand that if no person is named above as my agent for
12service or, if for any reason, service on the named person
13cannot be effectuated, the clerk of the circuit court of
14......(County) (Judicial Circuit) Illinois is recognized by
15Illinois law as my agent for service of process.
16    2. The decedent's name is            ;
17    3. The date of the decedent's death was            , and I
18have attached a copy of the death certificate hereto.
19    4. The decedent's place of residence immediately before his
20death was            ;
21    5. No letters of office are now outstanding on the
22decedent's estate and no petition for letters is contemplated
23or pending in Illinois or in any other jurisdiction, to my
24knowledge;
25    6. The gross value of the decedent's entire personal
26estate, including the value of all property passing to any

 

 

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1party either by intestacy or under a will, does not exceed
2$100,000. (Here, list each asset, e.g., cash, stock, and its
3fair market value.);
4    7. (a) All of the decedent's funeral expenses and other
5debts have been paid, or
6    (b) All The amount of the decedent's known unpaid debts are
7listed and classified as follows (include the name, post office
8address, and amount) funeral expenses and the name and post
9office address of each person entitled thereto are as follows:
10    Class 1: funeral and burial expenses, which include
11    reasonable amounts paid for a burial space, crypt, or
12    niche; a marker on the burial space; and care of the burial
13    space, crypt, or niche; expenses of administration; and
14    statutory custodial claims as follows:
15    .............................................................
16    Class 2: the surviving spouse's award or child's award, if
17    applicable, as follows:
18    .............................................................
19    Class 3: debts due the United States, as follows:
20    .............................................................
21    Class 4: money due employees of the decedent of not more
22    than $800 for each claimant for services rendered within 4
23    months prior to the decedent's death and expenses attending
24    the last illness, as follows:
25    .............................................................
26    Class 5: money and property received or held in trust by

 

 

 

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1    the decedent which cannot be identified or traced, as
2    follows:
3    .............................................................
4    Class 6: debts due the State of Illinois and any county,
5    township, city, town, village, or school district located
6    within Illinois, as follows:
7    .............................................................
8    Class 7: all other claims, as follows:
9    .............................................................
10(Strike either 7(a) or 7(b)).
11Name and post office addressAmount
12(Strike either 7(a) or 7(b)).
13    7.5. I understand that all valid claims against the
14decedent's estate described in paragraph 7 must be paid by me
15from the decedent's estate before any distribution is made to
16any heir or legatee. I further understand that the decedent's
17estate should pay all claims in the order set forth above, and
18if the decedent's estate is insufficient to pay the claims in
19any one class, the claims in that class shall be paid pro rata.
20    8. There is no known unpaid claimant or contested claim
21against the decedent, except as stated in paragraph 7.
22    9. (a) The names and places of residence of any surviving
23spouse, minor children and adult dependent* children of the
24decedent are as follows:
25Name andPlace ofAge of
26RelationshipResidenceminor child

 

 

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1*(Note: An adult dependent child is one who is unable to
2maintain himself and is likely to become a public charge.)
3    (b) The award allowable to the surviving spouse of a
4decedent who was an Illinois resident is $.......... ($20,000,
5plus $10,000 multiplied by the number of minor children and
6adult dependent children who resided with the surviving spouse
7at the time of the decedent's death. If any such child did not
8reside with the surviving spouse at the time of the decedent's
9death, so indicate).
10    (c) If there is no surviving spouse, the award allowable to
11the minor children and adult dependent children of a decedent
12who was an Illinois resident is $.......... ($20,000, plus
13$10,000 multiplied by the number of minor children and adult
14dependent children), to be divided among them in equal shares.
15    10. (a) The decedent left no will. The names, places of
16residence and relationships of the decedent's heirs, and the
17portion of the estate to which each heir is entitled under the
18law where decedent died intestate are as follows:
19Name, relationshipAge ofPortion of
20and place of residenceminorEstate
21OR
22    (b) The decedent left a will, which has been filed with the
23clerk of an appropriate court. A certified copy of the will on
24file is attached. To the best of my knowledge and belief the
25will on file is the decedent's last will and was signed by the

 

 

 

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1decedent and the attesting witnesses as required by law and
2would be admittable to probate. The names and places of
3residence of the legatees and the portion of the estate, if
4any, to which each legatee is entitled are as follows:
5Name, relationshipAge ofPortion of
6and place of residenceminorEstate
7    (Strike either 10(a) or 10(b)).
8    (c) Affiant is unaware of any dispute or potential conflict
9as to the heirship or will of the decedent.
10    10.3. My relationship to the decedent or the decedent's
11estate is as follows:........................................
12    10.5. (The following paragraph should appear in bold type
13and in not less than 14-point font):
14        I understand that the decedent's estate must be
15    distributed first to satisfy claims against the decedent's
16    estate as set forth in paragraph 7.5 of this affidavit
17    before any distribution is made to any heir or legatee. By
18    signing this affidavit, I agree to indemnify and hold
19    harmless all creditors of the decedent's estate, the
20    decedent's heirs and legatees, and other persons,
21    corporations, or financial institutions relying upon this
22    affidavit who incur any loss because of reliance on this
23    affidavit, up to the amount lost because of any act or
24    omission by me. I further understand that any person,
25    corporation, or financial institution recovering under

 

 

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1    this indemnification provision shall be entitled to
2    reasonable attorney's fees and the expenses of recovery.
3    11. After payment by me from the decedent's estate of all
4debts and expenses listed in paragraph 7, any remaining The
5property described in paragraph 6 of this affidavit should be
6distributed as follows:
 
7    Name        Specific sum or property to be distributed
 
 
8The foregoing statement is made under the penalties of
9perjury*.
10
.........................
11
Signature of Affiant
     
12Signed and sworn before me on (insert date).
 
13
.........................
14
Notary Public
15*(Note: A fraudulent statement made under the penalties of
16perjury is perjury, as defined in Section 32-2 of the Criminal
17Code of 2012.)
18    (c) Appointment of Agent. If safe deposit access is
19involved or if sale of any personal property is desirable to
20facilitate distribution pursuant to the small estate
21affidavit, the affiant under the small estate affidavit all
22persons named in paragraph 11 of the small estate affidavit

 

 

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

 

 

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

 

 

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1court of the county or judicial circuit of which the decedent
2was a resident at the time of his death shall be the agent for
3service of process.
4    (g) Any action properly taken under this Section, as
5amended by Public Act 93-877, on or after August 6, 2004 (the
6effective date of Public Act 93-877) is valid regardless of the
7date of death of the decedent.
8    (h) The changes made by this amendatory Act of the 96th
9General Assembly apply to a decedent whose date of death is on
10or after the effective date of this amendatory Act of the 96th
11General Assembly.
12    (i) The changes made by this amendatory Act of the 98th
13General Assembly apply to a decedent whose date of death is on
14or after the effective date of this amendatory Act of the 98th
15General Assembly.
16(Source: P.A. 96-968, eff. 7-2-10; 97-1150, eff. 1-25-13.)
 
17    Section 10. The Safety Deposit Box Opening Act is amended
18by changing Section 1 as follows:
 
19    (755 ILCS 15/1)  (from Ch. 17, par. 1501)
20    Sec. 1. Upon being furnished with satisfactory proof of
21death of a sole lessee or the last surviving co-lessee of a
22safe deposit box, the lessor shall open the box and examine the
23contents in the presence of a person who presents himself and
24furnishes an affidavit which states that (a) he is interested

 

 

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1in the filing of the lessee's will or in the arrangements for
2his burial, (b) he believes the box may contain the will or
3burial documents of the lessee and (c) he is an interested
4person within the meaning of this Act. The lessor shall not
5open the box in accordance with this Act if the lessor has
6received a copy of letters of office of the representative of
7the deceased lessee's estate, or other applicable court order,
8or a small estate affidavit in accordance with Article XXV of
9the Probate Act of 1975. The lessor need not open the box if
10(a) the box has previously been opened in accordance with this
11Act, (b) the lessor has received notice of a written or oral
12objection from any person or has reason to believe that there
13would be an objection, or (c) the lessee's key or combination
14is not available. The lessor shall authorize a representative
15of a decedent's estate or a person designated in a small estate
16affidavit pursuant to Article XXV of the Probate Act of 1975,
17upon presentation of letters of office, other applicable court
18order, or small estate affidavit, to open the box and examine
19and remove the contents.
20    For purposes of this Act, the term "interested person"
21means any person who immediately prior to the death of the
22lessee had the right of access to the box as a deputy, any
23person named as executor in a copy furnished by him of a
24purported will of the lessee, or the spouse, an adult
25descendant, parent, brother or sister of the lessee. If the
26affidavit states that none of the persons described above is

 

 

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1available to be present at the opening of the box, the term
2"interested person" also means any other person who the lessor
3in its sole discretion determines may have a legitimate
4interest in the filing of the lessee's will or in the
5arrangements for his burial.
6    The lessor shall remove any document which appears to be a
7will or codicil and deliver it to the clerk of the circuit
8court for the county in which the lessee resided immediately
9prior to his or her death, if known to the lessor, otherwise to
10the clerk of the circuit court for the county in which the safe
11deposit box is located. Delivery of a will or codicil called
12for herein may be made by registered mail sent to the clerk of
13the said court. The lessor may remove any burial documents and
14deliver them to the interested person. No other contents may be
15removed pursuant to this Act.
16    The lessor is not required to look into the truth of any
17statement in the affidavit required to be furnished under
18section one of this Act. The lessor's determination of the fact
19situations to be met under this act shall be conclusive and
20final. The lessor shall be fully protected in relying
21conclusively on it.
22(Source: P.A. 83-642.)