Full Text of SB1048 98th General Assembly
SB1048sam002 98TH GENERAL ASSEMBLY | Sen. Don Harmon Filed: 5/6/2014
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| 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 voluntarily, or in | 12 | | exchange for compensation, has assumed responsibility for all | 13 | | or a portion of the care of another person who needs assistance | 14 | | with activities of daily living. "Caregiver" includes a | 15 | | caregiver's spouse, cohabitant, child, or employee. |
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| 1 | | "Caregiver" does not include a family member of the person | 2 | | receiving assistance. | 3 | | (2) "Family member" means a spouse, child, grandchild, | 4 | | sibling, aunt, uncle, niece, nephew, first cousin, or parent of | 5 | | the person receiving assistance. | 6 | | (3) "Transfer instrument" means the legal document | 7 | | intended to effectuate a transfer effective on or after the | 8 | | transferor's death and includes, without limitation, a will, | 9 | | trust, deed, form designated as payable on death, contract, or | 10 | | other beneficiary designation form. | 11 | | (4) "Transferee" means a legatee, a beneficiary of trust, a | 12 | | grantee of a deed, or any other person designated in a transfer | 13 | | instrument to receive a nonprobate transfer. | 14 | | (5) "Transferor" means a testator, settlor, grantor of a | 15 | | deed, or a decedent whose interest is transferred pursuant to a | 16 | | nonprobate transfer. | 17 | | (755 ILCS 5/4a-10 new) | 18 | | Sec. 4a-10. Presumption of void transfer. | 19 | | (a) In any civil action in which a transfer instrument is | 20 | | being challenged, there is a rebuttable presumption, except as | 21 | | provided in Section 4a-15, that the transfer instrument is void | 22 | | if the transferee is a caregiver and the fair market value of | 23 | | the transferred property exceeds $20,000. | 24 | | (b) Unless a shorter limitations period is required by | 25 | | Section 8-1 or 18-12 of this Act, any action under this Section |
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| 1 | | shall be filed within 2 years of the date of death of the | 2 | | transferor. | 3 | | (c) If the holder of any property subject to the provisions | 4 | | of this Section is a financial institution, trust company, | 5 | | trustee, or similar entity or person, the holder is not liable | 6 | | for any distribution or release of the property, benefit, or | 7 | | other interest to the caregiver unless the holder knowingly | 8 | | distributes or releases the property, benefit, or other | 9 | | interest to the caregiver after first having received actual | 10 | | written notice of a legal action challenging the testamentary | 11 | | instrument with sufficient time to act upon the notice. | 12 | | (755 ILCS 5/4a-15 new) | 13 | | Sec. 4a-15. Exceptions. The rebuttable presumption | 14 | | established by Section 4a-10 can be overcome if the transferee | 15 | | proves to the court either: | 16 | | (1) by a preponderance of evidence that the | 17 | | transferee's share under the transfer instrument is not | 18 | | greater than the share the transferee was entitled to under | 19 | | the transferor's transfer instrument in effect prior to the | 20 | | transferee becoming a caregiver; or | 21 | | (2) by clear and convincing evidence that the transfer | 22 | | was not the product of fraud, duress, or undue influence, | 23 | | provided that the determination of the court pursuant to | 24 | | this paragraph must not be based solely upon the testimony | 25 | | of the caregiver. |
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| 1 | | (755 ILCS 5/4a-20 new) | 2 | | Sec. 4a-20. Common law. The provisions of this Article do | 3 | | not abrogate or limit any principle or rule of the common law, | 4 | | unless the common law principle or rule is inconsistent with | 5 | | the provisions of this Article. Notwithstanding the limited | 6 | | definition of "caregiver" in Section 4a-5 of this Article, | 7 | | nothing in this Article precludes any action against any | 8 | | individual under the common law, or any other applicable law, | 9 | | regardless of the individual's familial relationship with the | 10 | | person receiving assistance. | 11 | | (755 ILCS 5/4a-25 new) | 12 | | Sec. 4a-25. Attorney's fees and costs. If the caregiver | 13 | | attempts and fails to overcome the presumption under Section | 14 | | 4a-15, the caregiver shall bear the costs of the proceedings, | 15 | | including, without limitation, reasonable attorney's fees. | 16 | | (755 ILCS 5/4a-30 new) | 17 | | Sec. 4a-30. No independent duty. The rebuttable | 18 | | presumption set forth in Section 4a-10 of this Article applies | 19 | | only in a civil action in which a transfer instrument is being | 20 | | challenged. Nothing in this Article creates or imposes, or | 21 | | shall be construed to create or impose, an independent duty on | 22 | | any financial institution, trust company, trustee, or similar | 23 | | entity or person related to any transfer instrument. |
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| 1 | | (755 ILCS 5/4a-35 new) | 2 | | Sec. 4a-35. Applicability. This Article applies only to | 3 | | transfer instruments executed after the effective date of this | 4 | | amendatory Act of the 98th General Assembly. ".
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