Illinois General Assembly - Full Text of SB1048
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Full Text of SB1048  98th General Assembly




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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 11a-2 and by adding Article IVa as follows:
6    (755 ILCS 5/Art. IVa heading new)

9    (755 ILCS 5/4a-5 new)
10    Sec. 4a-5. Definitions. As used in this Article:
11    (1) "Caregiver" means a person who voluntarily, or in
12exchange for compensation, has assumed responsibility for all
13or a portion of the care of another person who needs assistance
14with activities of daily living. "Caregiver" includes a
15caregiver's spouse, cohabitant, child, or employee.
16"Caregiver" does not include a family member of the person
17receiving assistance.
18    (2) "Family member" means a spouse, child, grandchild,
19sibling, aunt, uncle, niece, nephew, first cousin, or parent of
20the person receiving assistance.
21    (3) "Transfer instrument" means the legal document
22intended to effectuate a transfer effective on or after the



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1transferor's death and includes, without limitation, a will,
2trust, deed, form designated as payable on death, contract, or
3other beneficiary designation form.
4    (4) "Transferee" means a legatee, a beneficiary of a trust,
5a grantee of a deed, or any other person designated in a
6transfer instrument to receive a nonprobate transfer.
7    (5) "Transferor" means a testator, settlor, grantor of a
8deed, or a decedent whose interest is transferred pursuant to a
9nonprobate transfer.
10    (755 ILCS 5/4a-10 new)
11    Sec. 4a-10. Presumption of void transfer.
12    (a) In any civil action in which a transfer instrument is
13being challenged, there is a rebuttable presumption, except as
14provided in Section 4a-15, that the transfer instrument is void
15if the transferee is a caregiver and the fair market value of
16the transferred property exceeds $20,000.
17    (b) Unless a shorter limitations period is required by
18Section 8-1 or 18-12 of this Act, any action under this Section
19shall be filed within 2 years of the date of death of the
21    (c) If the holder of any property subject to the provisions
22of this Section is a financial institution, trust company,
23trustee, or similar entity or person, the holder is not liable
24for any distribution or release of the property, benefit, or
25other interest to the caregiver unless the holder knowingly



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1distributes or releases the property, benefit, or other
2interest to the caregiver after first having received actual
3written notice of a legal action challenging the testamentary
4instrument with sufficient time to act upon the notice.
5    (755 ILCS 5/4a-15 new)
6    Sec. 4a-15. Exceptions. The rebuttable presumption
7established by Section 4a-10 can be overcome if the transferee
8proves to the court either:
9        (1) by a preponderance of evidence that the
10    transferee's share under the transfer instrument is not
11    greater than the share the transferee was entitled to under
12    the transferor's transfer instrument in effect prior to the
13    transferee becoming a caregiver; or
14        (2) by clear and convincing evidence that the transfer
15    was not the product of fraud, duress, or undue influence,
16    provided that the determination of the court pursuant to
17    this paragraph must not be based solely upon the testimony
18    of the caregiver.
19    (755 ILCS 5/4a-20 new)
20    Sec. 4a-20. Common law. The provisions of this Article do
21not abrogate or limit any principle or rule of the common law,
22unless the common law principle or rule is inconsistent with
23the provisions of this Article. Notwithstanding the limited
24definition of "caregiver" in Section 4a-5 of this Article,



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1nothing in this Article precludes any action against any
2individual under the common law, or any other applicable law,
3regardless of the individual's familial relationship with the
4person receiving assistance.
5    (755 ILCS 5/4a-25 new)
6    Sec. 4a-25. Attorney's fees and costs. If the caregiver
7attempts and fails to overcome the presumption under Section
84a-15, the caregiver shall bear the costs of the proceedings,
9including, without limitation, reasonable attorney's fees.
10    (755 ILCS 5/4a-30 new)
11    Sec. 4a-30. No independent duty. The rebuttable
12presumption set forth in Section 4a-10 of this Article applies
13only in a civil action in which a transfer instrument is being
14challenged. Nothing in this Article creates or imposes, or
15shall be construed to create or impose, an independent duty on
16any financial institution, trust company, trustee, or similar
17entity or person related to any transfer instrument.
18    (755 ILCS 5/4a-35 new)
19    Sec. 4a-35. Applicability. This Article applies only to
20transfer instruments executed after the effective date of this
21amendatory Act of the 98th General Assembly.