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




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1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Probate Act of 1975 is amended by by adding
5Article 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.
16"Caregiver" does not include a family member of the person
17receiving assistance.
18    (2) "Family member" means a spouse, child, grandchild,
19sibling, aunt, uncle, niece, nephew, first cousin, or parent of
20the person receiving assistance.
21    (3) "Transfer instrument" means the legal document
22intended to effectuate a transfer effective on or after the



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1transferor's death and includes, without limitation, a will,
2trust, deed, form designated as payable on death, contract, or
3other beneficiary designation form.
4    (4) "Transferee" means a legatee, a beneficiary of a trust,
5a grantee of a deed, or any other person designated in a
6transfer instrument to receive a nonprobate transfer.
7    (5) "Transferor" means a testator, settlor, grantor of a
8deed, or a decedent whose interest is transferred pursuant to a
9nonprobate transfer.
10    (755 ILCS 5/4a-10 new)
11    Sec. 4a-10. Presumption of void transfer.
12    (a) In any civil action in which a transfer instrument is
13being challenged, there is a rebuttable presumption, except as
14provided in Section 4a-15, that the transfer instrument is void
15if the transferee is a caregiver and the fair market value of
16the transferred property exceeds $20,000.
17    (b) Unless a shorter limitations period is required by
18Section 8-1 or 18-12 of this Act, any action under this Section
19shall be filed within 2 years of the date of death of the
21    (755 ILCS 5/4a-15 new)
22    Sec. 4a-15. Exceptions. The rebuttable presumption
23established by Section 4a-10 can be overcome if the transferee
24proves to the court either:



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1        (1) by a preponderance of evidence that the
2    transferee's share under the transfer instrument is not
3    greater than the share the transferee was entitled to under
4    the transferor's transfer instrument in effect prior to the
5    transferee becoming a caregiver; or
6        (2) by clear and convincing evidence that the transfer
7    was not the product of fraud, duress, or undue influence.
8    (755 ILCS 5/4a-20 new)
9    Sec. 4a-20. Common law. The provisions of this Article do
10not abrogate or limit any principle or rule of the common law,
11unless the common law principle or rule is inconsistent with
12the provisions of this Article. Notwithstanding the limited
13definition of "caregiver" in Section 4a-5 of this Article,
14nothing in this Article precludes any action against any
15individual under the common law, or any other applicable law,
16regardless of the individual's familial relationship with the
17person receiving assistance. The provisions of this Article are
18in addition to any other principle or rule of law.
19    (755 ILCS 5/4a-25 new)
20    Sec. 4a-25. Attorney's fees and costs. If the caregiver
21attempts and fails to overcome the presumption under Section
224a-15, the caregiver shall bear the costs of the proceedings,
23including, without limitation, reasonable attorney's fees.



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1    (755 ILCS 5/4a-30 new)
2    Sec. 4a-30. No independent duty. The rebuttable
3presumption set forth in Section 4a-10 of this Article applies
4only in a civil action in which a transfer instrument is being
5challenged, and does not create or impose an independent duty
6on any financial institution, trust company, trustee, or
7similar entity or person related to any transfer instrument.
8    (755 ILCS 5/4a-35 new)
9    Sec. 4a-35. Applicability. This Article applies only to
10transfer instruments executed after the effective date of this
11amendatory Act of the 98th General Assembly.