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


Sen. Don Harmon

Filed: 5/6/2014





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2    AMENDMENT NO. ______. Amend Senate Bill 1048 by replacing
3everything after the enacting clause with the following:
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.



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1"Caregiver" does not include a family member of the person
2receiving assistance.
3    (2) "Family member" means a spouse, child, grandchild,
4sibling, aunt, uncle, niece, nephew, first cousin, or parent of
5the person receiving assistance.
6    (3) "Transfer instrument" means the legal document
7intended to effectuate a transfer effective on or after the
8transferor's death and includes, without limitation, a will,
9trust, deed, form designated as payable on death, contract, or
10other beneficiary designation form.
11    (4) "Transferee" means a legatee, a beneficiary of trust, a
12grantee of a deed, or any other person designated in a transfer
13instrument to receive a nonprobate transfer.
14    (5) "Transferor" means a testator, settlor, grantor of a
15deed, or a decedent whose interest is transferred pursuant to a
16nonprobate 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
20being challenged, there is a rebuttable presumption, except as
21provided in Section 4a-15, that the transfer instrument is void
22if the transferee is a caregiver and the fair market value of
23the transferred property exceeds $20,000.
24    (b) Unless a shorter limitations period is required by
25Section 8-1 or 18-12 of this Act, any action under this Section



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1shall be filed within 2 years of the date of death of the
3    (c) If the holder of any property subject to the provisions
4of this Section is a financial institution, trust company,
5trustee, or similar entity or person, the holder is not liable
6for any distribution or release of the property, benefit, or
7other interest to the caregiver unless the holder knowingly
8distributes or releases the property, benefit, or other
9interest to the caregiver after first having received actual
10written notice of a legal action challenging the testamentary
11instrument with sufficient time to act upon the notice.
12    (755 ILCS 5/4a-15 new)
13    Sec. 4a-15. Exceptions. The rebuttable presumption
14established by Section 4a-10 can be overcome if the transferee
15proves 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
3not abrogate or limit any principle or rule of the common law,
4unless the common law principle or rule is inconsistent with
5the provisions of this Article. Notwithstanding the limited
6definition of "caregiver" in Section 4a-5 of this Article,
7nothing in this Article precludes any action against any
8individual under the common law, or any other applicable law,
9regardless of the individual's familial relationship with the
10person receiving assistance.
11    (755 ILCS 5/4a-25 new)
12    Sec. 4a-25. Attorney's fees and costs. If the caregiver
13attempts and fails to overcome the presumption under Section
144a-15, the caregiver shall bear the costs of the proceedings,
15including, without limitation, reasonable attorney's fees.
16    (755 ILCS 5/4a-30 new)
17    Sec. 4a-30. No independent duty. The rebuttable
18presumption set forth in Section 4a-10 of this Article applies
19only in a civil action in which a transfer instrument is being
20challenged. Nothing in this Article creates or imposes, or
21shall be construed to create or impose, an independent duty on
22any financial institution, trust company, trustee, or similar
23entity 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
3transfer instruments executed after the effective date of this
4amendatory Act of the 98th General Assembly.".