SB1048sam001 98TH GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 4/4/2014

09800SB1048sam001 LRB098 05314 HEP 58261 a

AMENDMENT TO SENATE BILL 1048

AMENDMENT NO. ______. Amend Senate Bill 1048 by replacing everything after the enacting clause with the following:

"Section 5. The Probate Act of 1975 is amended by changing Section 11a-2 and by adding Article IVa as follows:

(755 ILCS 5/Art. IVa heading new)

ARTICLE IVa

PRESUMPTIVELY VOID TRANSFERS

(755 ILCS 5/4a-5 new)

Sec. 4a-5. Definitions. As used in this Article:

(1) "Caregiver" means a person who, either as a result of a family relationship, voluntarily, or in exchange for compensation, has assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living. "Caregiver" does not include the spouse of the person receiving assistance.

(2) "Independent attorney" means an attorney, other than an attorney who:

(A) is described in subsection (b) of Section 4a-10; or

(B) has served as an attorney for a person who is described in subsection (b) of Section 4a-10.

(3) "Transfer instrument" means the legal document intended to effectuate a transfer effective on or after the transferor's death and includes, without limitation, a will, trust, deed, form designated as payable on death, contract, or other beneficiary designation form.

(4) "Transferee" means a legatee, a beneficiary of trust, a grantee of a deed, or any other person designated in a transfer instrument to receive a nonprobate transfer.

(5) "Transferor" means a testator, settlor, grantor of a deed, or a decedent whose interest is transferred pursuant to a nonprobate transfer.

(755 ILCS 5/4a-10 new)

Sec. 4a-10. Presumption of void transfer. Except as provided in Section 4a-15, a transfer instrument is presumed to be void if the transferee is a caregiver, or person related to a caregiver, and the fair fair market value of the transferred property exceeds $20,000.

(755 ILCS 5/4a-15 new)

Sec. 4a-15. Exceptions. The presumption established by Section 4a-10 does not apply if the transferee either:

(1) establishes that the transferee's share under the transfer instrument is not greater than the share the transferee was entitled to under the transferror's testamentary plan in effect prior to the transferee becoming a caregiver;

(2) establishes by clear and convincing evidence that the transfer was not the product of fraud, duress, or undue influence, provided that the determination of the court pursuant to this paragraph must not be based solely upon the testimony of the caregiver; or

(3) establishes that the transfer instrument was reviewed by an independent attorney who signed and delivered to the transferor an original certificate of that review, in a dated form consisting of substantially the following:

CERTIFICATE OF INDEPENDENT REVIEW

I, .......... (attorney's name), have reviewed .......... (name of transfer instrument) prior to its execution, and have counseled my client, .......... (name of client), on the nature and consequences of the transfer or transfers of property to .......... (name of transferee) contained in the transfer instrument. I am disassociated from the interest of the transferee to the extent that I am in a position to advise my client independently, impartially, and confidentially as to the consequences of the transfer. On the basis of this counsel, I conclude that the transfer or transfers of property in the transfer instrument that otherwise might be invalid pursuant to Section 4a-10 of the Probate Act of 1975 are valid because the transfer or transfers are not the product of fraud, duress, or undue influence.

(755 ILCS 5/4a-20 new)

Sec. 4a-20. Common law. The provisions of this Article do not abrogate or limit any principle or rule of the common law, unless the common law principle or rule is inconsistent with the provisions of this Article.

(755 ILCS 5/4s-25 new)

Sec. 4s-25. Attorney's fees and costs. If the caregiver attempts and fails to overcome the presumption under Section 4a-15, the caregiver shall bear the costs of the proceedings, including, without limitation, reasonable attorney's fees.

(755 ILCS 5/11a-2) (from Ch. 110 1/2, par. 11a-2)

Sec. 11a-2. "Disabled person" defined.) "Disabled person" means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate or is unable to resist fraud or undue influence, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate or is unable to resist fraud or undue influence, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects.

(Source: P.A. 95-561, eff. 1-1-08.)".