Full Text of SB1048 98th General Assembly
SB1048sam001 98TH GENERAL ASSEMBLY | Sen. Don Harmon Filed: 4/4/2014
| | 09800SB1048sam001 | | LRB098 05314 HEP 58261 a |
|
| 1 | | AMENDMENT TO SENATE BILL 1048
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1048 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Probate Act of 1975 is amended by changing | 5 | | Section 11a-2 and by adding Article IVa as follows: | 6 | | (755 ILCS 5/Art. IVa heading new) | 7 | | ARTICLE IVa | 8 | | PRESUMPTIVELY VOID TRANSFERS | 9 | | (755 ILCS 5/4a-5 new) | 10 | | Sec. 4a-5. Definitions. As used in this Article: | 11 | | (1) "Caregiver" means a person who, either as a result of a | 12 | | family relationship, voluntarily, or in exchange for | 13 | | compensation, has assumed responsibility for all or a portion | 14 | | of the care of another person who needs assistance with | 15 | | activities of daily living. "Caregiver" does not include the |
| | | 09800SB1048sam001 | - 2 - | LRB098 05314 HEP 58261 a |
|
| 1 | | spouse of the person receiving assistance. | 2 | | (2) "Independent attorney" means an attorney, other than an | 3 | | attorney who: | 4 | | (A) is described in subsection (b) of Section 4a-10; or | 5 | | (B) has served as an attorney for a person who is | 6 | | described in subsection (b) of Section 4a-10. | 7 | | (3) "Transfer instrument" means the legal document | 8 | | intended to effectuate a transfer effective on or after the | 9 | | transferor's death and includes, without limitation, a will, | 10 | | trust, deed, form designated as payable on death, contract, or | 11 | | other beneficiary designation form. | 12 | | (4) "Transferee" means a legatee, a beneficiary of trust, a | 13 | | grantee of a deed, or any other person designated in a transfer | 14 | | instrument to receive a nonprobate transfer. | 15 | | (5) "Transferor" means a testator, settlor, grantor of a | 16 | | deed, or a decedent whose interest is transferred pursuant to a | 17 | | nonprobate transfer. | 18 | | (755 ILCS 5/4a-10 new) | 19 | | Sec. 4a-10. Presumption of void transfer. Except as | 20 | | provided in Section 4a-15, a transfer instrument is presumed to | 21 | | be void if the transferee is a caregiver, or person related to | 22 | | a caregiver, and the fair fair market value of the transferred | 23 | | property exceeds $20,000. | 24 | | (755 ILCS 5/4a-15 new) |
| | | 09800SB1048sam001 | - 3 - | LRB098 05314 HEP 58261 a |
|
| 1 | | Sec. 4a-15. Exceptions. The presumption established by | 2 | | Section 4a-10 does not apply if the transferee either: | 3 | | (1) establishes that the transferee's share under the | 4 | | transfer instrument is not greater than the share the | 5 | | transferee was entitled to under the transferror's | 6 | | testamentary plan in effect prior to the transferee | 7 | | becoming a caregiver; | 8 | | (2) establishes by clear and convincing evidence that | 9 | | the transfer was not the product of fraud, duress, or undue | 10 | | influence, provided that the determination of the court | 11 | | pursuant to this paragraph must not be based solely upon | 12 | | the testimony of the caregiver; or | 13 | | (3) establishes that the transfer instrument was | 14 | | reviewed by an independent attorney who signed and | 15 | | delivered to the transferor an original certificate of that | 16 | | review, in a dated form consisting of substantially the | 17 | | following: | 18 | | CERTIFICATE OF INDEPENDENT REVIEW | 19 | | I, .......... (attorney's name), have reviewed | 20 | | .......... (name of transfer
instrument) prior to its | 21 | | execution, and have counseled my client, .......... | 22 | | (name of client), on the nature
and consequences of the | 23 | | transfer or transfers of property to .......... (name | 24 | | of
transferee) contained in the transfer instrument. I | 25 | | am disassociated from the interest of the transferee to | 26 | | the extent that I am in a position to advise my client |
| | | 09800SB1048sam001 | - 4 - | LRB098 05314 HEP 58261 a |
|
| 1 | | independently, impartially, and confidentially as to | 2 | | the consequences of the transfer. On the basis of this | 3 | | counsel, I conclude that the transfer or transfers of | 4 | | property in the transfer instrument that otherwise | 5 | | might be invalid pursuant to Section 4a-10 of the | 6 | | Probate Act of 1975 are valid because the transfer or | 7 | | transfers are not the product of fraud, duress, or | 8 | | undue influence. | 9 | | (755 ILCS 5/4a-20 new) | 10 | | Sec. 4a-20. Common law. The provisions of this Article do | 11 | | not abrogate or limit any principle or rule of the common law, | 12 | | unless the common law principle or rule is inconsistent with | 13 | | the provisions of this Article. | 14 | | (755 ILCS 5/4s-25 new) | 15 | | Sec. 4s-25. Attorney's fees and costs. If the caregiver | 16 | | attempts and fails to overcome the presumption under Section | 17 | | 4a-15, the caregiver shall bear the costs of the proceedings, | 18 | | including, without limitation, reasonable attorney's fees.
| 19 | | (755 ILCS 5/11a-2) (from Ch. 110 1/2, par. 11a-2)
| 20 | | Sec. 11a-2. "Disabled person" defined.) "Disabled person" | 21 | | means a person
18 years or older who (a) because of mental | 22 | | deterioration or physical
incapacity is not fully able to | 23 | | manage his person or estate or is unable to resist fraud or |
| | | 09800SB1048sam001 | - 5 - | LRB098 05314 HEP 58261 a |
|
| 1 | | undue influence , or (b) is a person
with mental illness or a | 2 | | person with a developmental disability and who because
of his | 3 | | mental illness or developmental disability is not fully able to | 4 | | manage
his person or estate or is unable to resist fraud or | 5 | | undue influence , or (c) because of gambling, idleness, | 6 | | debauchery or
excessive use of intoxicants or drugs, so spends | 7 | | or wastes his estate as to
expose himself or his family to want | 8 | | or suffering, or (d) is diagnosed with fetal alcohol syndrome | 9 | | or fetal alcohol effects.
| 10 | | (Source: P.A. 95-561, eff. 1-1-08.)".
|
|