HB2716 100TH GENERAL ASSEMBLY

LRB100 08470 HEP 18588 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB2716

Introduced , by Rep. Emanuel Chris Welch

SYNOPSIS AS INTRODUCED:

755 ILCS 5/4a-5
755 ILCS 5/4a-10
755 ILCS 5/4a-15
755 ILCS 5/4a-30

Amends the Presumptively Void Transfers Article of the Probate Act of 1975. Replaces references to the term "transfer instrument" with "transfer". Changes the definitions of "family member" and "transfer". Provides that if the court determines the transferor lacked the requisite capacity to convey, the entire transfer instrument shall be deemed void. Provides that if the property in question is an interest in real property, a purchaser or mortgagee for value and without notice, before the recordation of a lis pendens for an action, shall take free and clear of the action. Provides that a holder of property shall not be liable for distributing or releasing the property to the transferee if the distribution or release occurs prior to the holder being made a party to an action challenging the transfer. Effective immediately.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Probate Act of 1975 is amended by changing Sections 4a-5, 4a-10, 4a-15, and 4a-30 as follows:

(755 ILCS 5/4a-5)

Sec. 4a-5. Definitions. 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. "Caregiver" does not include a family member of the person receiving assistance.

(2) "Family member" means a spouse, civil union partner, child, step-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 transfer effectuated by a will, trust, transfer on death instrument deed, form designated as payable on death, contract, or other beneficiary designation form.

(4) "Transferee" means a legatee, a beneficiary of a 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 nonprobate transfer.

(Source: P.A. 98-1093, eff. 1-1-15.)

(755 ILCS 5/4a-10)

Sec. 4a-10. 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. If the court determines the transferor lacked the requisite capacity to convey, the entire transfer instrument shall be deemed void.

(b) Unless a shorter limitations period is required by Section 8-1 or 18-12 of this Act, any action under this Section shall be filed within 2 years of the date of death of the transferor.

(c) If the property in question is an interest in real property, a purchaser or mortgagee for value and without notice, before the recordation of a lis pendens for an action under this Section, shall take free and clear of the action.

(d) The holder of any property subject to this Article shall not be liable for distributing or releasing the property to the transferee if the distribution or release occurs prior to the holder being made a party to an action challenging the transfer.

(Source: P.A. 98-1093, eff. 1-1-15.)

(755 ILCS 5/4a-15)

Sec. 4a-15. Exceptions. 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.

(Source: P.A. 98-1093, eff. 1-1-15.)

(755 ILCS 5/4a-30)

Sec. 4a-30. No independent duty. The rebuttable presumption set forth in Section 4a-10 of this Article applies only in a civil action in which a transfer instrument is being challenged, and does not create or impose an independent duty on any financial institution, trust company, trustee, or similar entity or person related to any transfer instrument.

(Source: P.A. 98-1093, eff. 1-1-15.)

Section 99. Effective date. This Act takes effect upon becoming law.