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spouse of the person receiving assistance.
(2) "Independent attorney" means an attorney, other than an
(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
(755 ILCS 5/4a-10 new)
Presumption of void transfer.
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)
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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
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
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
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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
(755 ILCS 5/4a-20 new)
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)
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)
"Disabled person" defined.)
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
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, or (b) is a person
with mental illness or a
person with a developmental disability and who because
mental illness or developmental disability is not fully able to
his person or estate
or is unable to resist fraud or
, or (c) because of gambling, idleness,
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.)".