Sen. Don Harmon
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AMENDMENT TO SENATE BILL 1048
AMENDMENT NO. ______. Amend Senate Bill 1048 by replacing
everything after the enacting clause with the following:
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)
PRESUMPTIVELY VOID TRANSFERS
(755 ILCS 5/4a-5 new)
As used in this Article:
(1) "Caregiver" means a person who 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" includes a
caregiver's spouse, cohabitant, child, or employee.
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"Caregiver" does not include a family member of the person
(2) "Family member" means a spouse, child, grandchild,
sibling, aunt, uncle, niece, nephew, first cousin, or parent of
the person receiving assistance.
(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.
(a) In any civil action in which a transfer instrument is
being challenged, there is a rebuttable presumption, except as
provided in Section 4a-15, that the transfer instrument is void
if the transferee is a caregiver and the fair market value of
the transferred property exceeds $20,000.
(b) Unless a shorter limitations period is required by
Section 8-1 or 18-12 of this Act, any action under this Section
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shall be filed within 2 years of the date of death of the
(c) If the holder of any property subject to the provisions
of this Section is a financial institution, trust company,
trustee, or similar entity or person, the holder is not liable
for any distribution or release of the property, benefit, or
other interest to the caregiver unless the holder knowingly
distributes or releases the property, benefit, or other
interest to the caregiver after first having received actual
written notice of a legal action challenging the testamentary
instrument with sufficient time to act upon the notice.
(755 ILCS 5/4a-15 new)
The rebuttable presumption
established by Section 4a-10 can be overcome if the transferee
proves to the court either:
(1) by a preponderance of evidence that the
transferee's share under the transfer instrument is not
greater than the share the transferee was entitled to under
the transferor's transfer instrument in effect prior to the
transferee becoming a caregiver; or
(2) 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.
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(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. Notwithstanding the limited
definition of "caregiver" in Section 4a-5 of this Article,
nothing in this Article precludes any action against any
individual under the common law, or any other applicable law,
regardless of the individual's familial relationship with the
person receiving assistance.
(755 ILCS 5/4a-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 5/4a-30 new)
No independent duty.
presumption set forth in Section 4a-10 of this Article applies
only in a civil action in which a transfer instrument is being
challenged. Nothing in this Article creates or imposes, or
shall be construed to create or impose, an independent duty on
any financial institution, trust company, trustee, or similar
entity or person related to any transfer instrument.