HB4702 EnrolledLRB100 13197 HEP 30845 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4
Article 1. General provisions.

 
5    Section 101. Short title. This Act may be cited as the
6Uniform Powers of Appointment Act.
 
7    Section 102. Definitions. In this Act:
8    (1) "Appointee" means a person to which a powerholder makes
9an appointment of appointive property.
10    (2) "Appointive property" means the property or property
11interest subject to a power of appointment.
12    (3) "Blanket-exercise clause" means a clause in an
13instrument which exercises a power of appointment and is not a
14specific-exercise clause. The term includes a clause that:
15        (A) expressly uses the words "any power" in exercising
16    any power of appointment the powerholder has;
17        (B) expressly uses the words "any property" in
18    appointing any property over which the powerholder has a
19    power of appointment; or
20        (C) disposes of all property subject to disposition by
21    the powerholder.
22    (4) "Donor" means a person that creates a power of

 

 

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1appointment.
2    (5) "Exclusionary power of appointment" means a power of
3appointment exercisable in favor of any one or more of the
4permissible appointees to the exclusion of the other
5permissible appointees.
6    (6) "General power of appointment" means a power of
7appointment exercisable in favor of a powerholder, the
8powerholder's estate, a creditor of the powerholder, or a
9creditor of the powerholder's estate.
10    (7) "Gift-in-default clause" means a clause identifying a
11taker in default of appointment.
12    (8) "Impermissible appointee" means a person that is not a
13permissible appointee.
14    (9) "Instrument" means a writing.
15    (10) "Nongeneral power of appointment" means a power of
16appointment that is not a general power of appointment.
17    (11) "Permissible appointee" means a person in whose favor
18a powerholder may exercise a power of appointment.
19    (12) "Person" means an individual, estate, business or
20nonprofit entity, public corporation, government or
21governmental subdivision, agency, or instrumentality, or other
22legal entity.
23    (13) "Power of appointment" means a power that enables a
24powerholder acting in a nonfiduciary capacity to designate a
25recipient of an ownership interest in or another power of
26appointment over the appointive property. The term does not

 

 

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1include a power of attorney.
2    (14) "Powerholder" means a person in which a donor creates
3a power of appointment.
4    (15) "Presently exercisable power of appointment" means a
5power of appointment exercisable by the powerholder at the
6relevant time. The term:
7        (A) includes a power of appointment exercisable only
8    after the occurrence of a specified event, the satisfaction
9    of an ascertainable standard, or the passage of a specified
10    time only after:
11            (i) the occurrence of the specified event;
12            (ii) the satisfaction of the ascertainable
13        standard; or
14            (iii) the passage of the specified time; and
15        (B) does not include a power exercisable only at the
16    powerholder's death.
17    (16) "Record" means information that is inscribed on a
18tangible medium or that is stored in an electronic or other
19medium and is retrievable in perceivable form.
20    (17) "Specific-exercise clause" means a clause in an
21instrument which specifically refers to and exercises a
22particular power of appointment.
23    (18) "Taker in default of appointment" means a person that
24takes part or all of the appointive property to the extent the
25powerholder does not effectively exercise the power of
26appointment.

 

 

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1    (19) "Terms of the instrument" means the manifestation of
2the intent of the maker of the instrument regarding the
3instrument's provisions as expressed in the instrument or as
4may be established by other evidence that would be admissible
5in a legal proceeding.
 
6    Section 103. Governing law. Unless the terms of the
7instrument creating a power of appointment manifest a contrary
8intent:
9    (1) the creation, revocation, or amendment of the power is
10governed by the law of the donor's domicile at the relevant
11time; and
12    (2) the exercise, release, or disclaimer of the power, or
13the revocation or amendment of the exercise, release, or
14disclaimer of the power, is governed by the law of the
15powerholder's domicile at the relevant time.
 
16    Section 104. Common law and principles of equity. The
17common law and principles of equity supplement this Act, except
18to the extent modified by this Act or law of this State other
19than this Act.
 
20
Article 2. Creation, revocation, and amendment of power of
21
appointment.

 
22    Section 201. Creation of power of appointment.

 

 

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1    (a) A power of appointment is created only if:
2        (1) the instrument creating the power:
3            (A) is valid under applicable law; and
4            (B) except as otherwise provided in subsection
5        (b), transfers the appointive property; and
6        (2) the terms of the instrument creating the power
7    manifest the donor's intent to create, in a powerholder, a
8    power of appointment over the appointive property
9    exercisable in favor of a permissible appointee.
10    (b) Subdivision (a)(1)(B) of this Section does not apply to
11the creation of a power of appointment by the exercise of a
12power of appointment.
13    (c) A power of appointment may not be created in a deceased
14individual.
15    (d) Subject to an applicable rule against perpetuities, a
16power of appointment may be created in an unborn or
17unascertained powerholder.
 
18    Section 202. Nontransferability. A powerholder may not
19transfer a power of appointment. If the powerholder dies
20without exercising or releasing the power, the power lapses.
 
21    Section 203. Presumption of unlimited authority. Subject
22to Section 205, and unless the terms of the instrument creating
23a power of appointment manifest a contrary intent, the power
24is:

 

 

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1        (1) presently exercisable;
2        (2) exclusionary; and
3        (3) except as otherwise provided in Section 204,
4    general.
 
5    Section 204. Exception to presumption of unlimited
6authority. Unless the terms of the instrument creating a power
7of appointment manifest a contrary intent, the power is
8nongeneral if:
9        (1) the power is exercisable only at the powerholder's
10    death; and
11        (2) the permissible appointees of the power are a
12    defined and limited class that does not include the
13    powerholder's estate, the powerholder's creditors, or the
14    creditors of the powerholder's estate.
 
15    Section 205. Rules of classification.
16    (a) In this Section, "adverse party" means a person with a
17substantial beneficial interest in property which would be
18affected adversely by a powerholder's exercise or nonexercise
19of a power of appointment in favor of the powerholder, the
20powerholder's estate, a creditor of the powerholder, or a
21creditor of the powerholder's estate.
22    (b) If a powerholder may exercise a power of appointment
23only with the consent or joinder of an adverse party, the power
24is nongeneral.

 

 

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1    (c) If the permissible appointees of a power of appointment
2are not defined and limited, the power is exclusionary.
 
3    Section 206. Power to revoke or amend. A donor may revoke
4or amend a power of appointment only to the extent that:
5        (1) the instrument creating the power is revocable by
6    the donor; or
7        (2) the donor reserves a power of revocation or
8    amendment in the instrument creating the power of
9    appointment.
 
10
Article 3. Exercise of power of appointment.

 
11    Section 301. Requisites for exercise of power of
12appointment. A power of appointment is exercised only:
13        (1) if the instrument exercising the power is valid
14    under applicable law;
15        (2) if the terms of the instrument exercising the
16    power:
17            (A) manifest the powerholder's intent to exercise
18        the power; and
19            (B) subject to Section 304, satisfy the
20        requirements of exercise, if any, imposed by the donor;
21        and
22        (3) to the extent the appointment is a permissible
23    exercise of the power.
 

 

 

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1    Section 302. Intent to exercise: determining intent from
2residuary clause.
3    (a) In this Section:
4        (1) "Residuary clause" does not include a residuary
5    clause containing a blanket-exercise clause or a
6    specific-exercise clause.
7        (2) "Will" includes a codicil and a testamentary
8    instrument that revises another will.
9    (b) A residuary clause in a powerholder's will, or a
10comparable clause in the powerholder's revocable trust,
11manifests the powerholder's intent to exercise a power of
12appointment only if:
13        (1) the terms of the instrument containing the
14    residuary clause do not manifest a contrary intent;
15        (2) the power is a general power exercisable in favor
16    of the powerholder's estate;
17        (3) there is no gift-in-default clause or it is
18    ineffective; and
19        (4) the powerholder did not release the power.
 
20    Section 303. Intent to exercise: after-acquired power.
21Unless the terms of the instrument exercising a power of
22appointment manifest a contrary intent:
23        (1) except as otherwise provided in paragraph (2), a
24    blanket-exercise clause extends to a power acquired by the

 

 

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1    powerholder after executing the instrument containing the
2    clause; and
3        (2) if the powerholder is also the donor of the power,
4    the clause does not extend to the power unless there is no
5    gift-in-default clause or it is ineffective.
 
6    Section 304. Substantial compliance with donor-imposed
7formal requirement. A powerholder's substantial compliance
8with a formal requirement of an appointment imposed by the
9donor, including a requirement that the instrument exercising
10the power of appointment make reference or specific reference
11to the power, is sufficient if:
12        (1) the powerholder knows of and intends to exercise
13    the power; and
14        (2) the powerholder's manner of attempted exercise of
15    the power does not impair a material purpose of the donor
16    in imposing the requirement.
 
17    Section 305. Permissible appointment.
18    (a) A powerholder of a general power of appointment that
19permits appointment to the powerholder or the powerholder's
20estate may make any appointment, including an appointment in
21trust or creating a new power of appointment, that the
22powerholder could make in disposing of the powerholder's own
23property.
24    (b) A powerholder of a general power of appointment that

 

 

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1permits appointment only to the creditors of the powerholder or
2of the powerholder's estate is restricted to appointing to
3those creditors.
4    (c) Unless the terms of the instrument creating a power of
5appointment manifest a contrary intent, the powerholder of a
6nongeneral power may:
7        (1) make an appointment in any form, with any
8    conditions and limitations, including an appointment in
9    trust to any trustee, in favor of a permissible appointee;
10        (2) create a general or nongeneral power in a
11    permissible appointee that may be exercisable in favor of
12    persons other than permissible appointees of the original
13    nongeneral power; or
14        (3) create a nongeneral power in any person to appoint
15    to one or more of the permissible appointees of the
16    original nongeneral power.
 
17    Section 306. Appointment to deceased appointee. Subject to
18Section 4-11 of the Probate Act of 1975, an appointment to a
19deceased appointee is ineffective.
 
20    Section 307. Impermissible appointment.
21    (a) Except as otherwise provided in Section 306, an
22exercise of a power of appointment in favor of an impermissible
23appointee is ineffective.
24    (b) An exercise of a power of appointment in favor of a

 

 

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1permissible appointee is ineffective to the extent the
2appointment is a fraud on the power.
 
3    Section 308. Selective allocation doctrine. If a
4powerholder exercises a power of appointment in a disposition
5that also disposes of property the powerholder owns, the owned
6property and the appointive property must be allocated in the
7permissible manner that best carries out the powerholder's
8intent.
 
9    Section 309. Capture doctrine: disposition of
10ineffectively appointed property under general power. To the
11extent a powerholder of a general power of appointment, other
12than a power to revoke, amend, or withdraw property from a
13trust, makes an ineffective appointment:
14        (1) the gift-in-default clause controls the
15    disposition of the ineffectively appointed property; or
16        (2) if there is no gift-in-default clause or to the
17    extent the clause is ineffective, the ineffectively
18    appointed property:
19            (A) passes to:
20                (i) the powerholder if the powerholder is a
21            permissible appointee and living; or
22                (ii) if the powerholder is an impermissible
23            appointee or not living, the powerholder's estate
24            if the estate is a permissible appointee; or

 

 

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1            (B) if there is no taker under subparagraph (A),
2        passes under a reversionary interest to the donor or
3        the donor's transferee or successor in interest.
 
4    Section 310. Disposition of unappointed property under
5released or unexercised general power. To the extent a
6powerholder releases or fails to exercise a general power of
7appointment other than a power to revoke, amend, or withdraw
8property from a trust:
9        (1) the gift-in-default clause controls the
10    disposition of the unappointed property; or
11        (2) if there is no gift-in-default clause or to the
12    extent the clause is ineffective:
13            (A) except as otherwise provided in subparagraph
14        (B), the unappointed property passes to:
15                (i) the powerholder if the powerholder is a
16            permissible appointee and living; or
17                (ii) if the powerholder is an impermissible
18            appointee or not living, the powerholder's estate
19            if the estate is a permissible appointee; or
20            (B) to the extent the powerholder released the
21        power, or if there is no taker under subparagraph (A),
22        the unappointed property passes under a reversionary
23        interest to the donor or the donor's transferee or
24        successor in interest.
 

 

 

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1    Section 311. Disposition of unappointed property under
2released or unexercised nongeneral power. To the extent a
3powerholder releases, ineffectively exercises, or fails to
4exercise a nongeneral power of appointment:
5    (1) the gift-in-default clause controls the disposition of
6the unappointed property; or
7    (2) if there is no gift-in-default clause or to the extent
8the clause is ineffective, the unappointed property:
9        (A) passes to the permissible appointees if:
10            (i) the permissible appointees are defined and
11        limited; and
12            (ii) the terms of the instrument creating the power
13        do not manifest a contrary intent; or
14        (B) if there is no taker under subparagraph (A), passes
15    under a reversionary interest to the donor or the donor's
16    transferee or successor in interest.
 
17    Section 312. Disposition of unappointed property if
18partial appointment to taker in default. Unless the terms of
19the instrument creating or exercising a power of appointment
20manifest a contrary intent, if the powerholder makes a valid
21partial appointment to a taker in default of appointment, the
22taker in default of appointment may share fully in unappointed
23property.
 
24    Section 313. Appointment to taker in default. If a

 

 

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1powerholder of a general power makes an appointment to a taker
2in default of appointment and the appointee would have taken
3the property under a gift-in-default clause had the property
4not been appointed, the power of appointment is deemed not to
5have been exercised, and the appointee takes under the
6gift-in-default clause.
 
7    Section 314. Powerholder's authority to revoke or amend
8exercise. A powerholder may revoke or amend an exercise of a
9power of appointment only to the extent that:
10        (1) the powerholder reserves a power of revocation or
11    amendment in the instrument exercising the power of
12    appointment and, if the power is nongeneral, the terms of
13    the instrument creating the power of appointment do not
14    prohibit the reservation; or
15        (2) the terms of the instrument creating the power of
16    appointment provide that the exercise is revocable or
17    amendable.
 
18    Section 315. Disposition of trust property subject to
19power. In disposing of trust property subject to a power of
20appointment exercisable by an instrument other than a will, a
21trustee acting in good faith shall have no liability to any
22appointee or taker in default of appointment for relying upon
23an instrument believed to be genuine purporting to exercise a
24power of appointment or for assuming that there is no

 

 

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1instrument exercising the power of appointment in the absence
2of actual knowledge thereof within 3 months of the last date on
3which the power of appointment may be exercised.
 
4
Article 4. Disclaimer or release; contract to appoint or not to
5
appoint.

 
6    Section 401. Disclaimer. As provided by Section 2-7 of the
7Probate Act of 1975:
8        (1) A powerholder may disclaim all or part of a power
9    of appointment.
10        (2) A permissible appointee, appointee, or taker in
11    default of appointment may disclaim all or part of an
12    interest in appointive property.
 
13    Section 402. Authority to release. A powerholder may
14release a power of appointment, in whole or in part, except to
15the extent the terms of the instrument creating the power
16prevent the release.
 
17    Section 403. Method of release. A powerholder of a
18releasable power of appointment may release the power in whole
19or in part:
20        (1) by substantial compliance with a method provided in
21    the terms of the instrument creating the power; or
22        (2) if the terms of the instrument creating the power

 

 

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1    do not provide a method or the method provided in the terms
2    of the instrument is not expressly made exclusive, by an
3    instrument manifesting the powerholder's intent by clear
4    and convincing evidence.
 
5    Section 404. Revocation or amendment of release. A
6powerholder may revoke or amend a release of a power of
7appointment only to the extent that:
8        (1) the instrument of release is revocable by the
9    powerholder; or
10        (2) the powerholder reserves a power of revocation or
11    amendment in the instrument of release.
 
12    Section 405. Power to contract: presently exercisable
13power of appointment. A powerholder of a presently exercisable
14power of appointment may contract:
15        (1) not to exercise the power; or
16        (2) to exercise the power if the contract when made
17    does not confer a benefit on an impermissible appointee.
 
18    Section 406. Power to contract: power of appointment not
19presently exercisable. A powerholder of a power of appointment
20that is not presently exercisable may contract to exercise or
21not to exercise the power only if the powerholder:
22        (1) is also the donor of the power; and
23        (2) has reserved the power in a revocable trust.
 

 

 

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1    Section 407. Remedy for breach of contract to appoint or
2not to appoint. The remedy for a powerholder's breach of a
3contract to appoint or not to appoint is limited to damages
4payable out of the appointive property or, if appropriate,
5specific performance of the contract.
 
6
Article 5. Rights of powerholder's creditors in appointive
7
property.

 
8    Section 501. Creditor claim: general power created by
9powerholder.
10    (a) In this Section, "power of appointment created by the
11powerholder" includes a power of appointment created in a
12transfer by another person to the extent the powerholder
13contributed value to the transfer.
14    (b) Appointive property subject to a general power of
15appointment created by the powerholder is subject to a claim of
16a creditor of the powerholder or of the powerholder's estate to
17the extent provided in the Uniform Fraudulent Transfer Act.
18    (c) Subject to subsection (b), appointive property subject
19to a general power of appointment created by the powerholder is
20not subject to a claim of a creditor of the powerholder or the
21powerholder's estate to the extent the powerholder irrevocably
22appointed the property in favor of a person other than the
23powerholder or the powerholder's estate.

 

 

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1    (d) Subject to subsections (b) and (c), and notwithstanding
2the presence of a spendthrift provision or whether the claim
3arose before or after the creation of the power of appointment,
4appointive property subject to a general power of appointment
5created by the powerholder is subject to a claim of a creditor
6of:
7        (1) the powerholder, to the same extent as if the
8    powerholder owned the appointive property, if the power is
9    presently exercisable; and
10        (2) the powerholder's estate, to the extent the estate
11    is insufficient to satisfy the claim and subject to the
12    right of a decedent to direct the source from which
13    liabilities are paid, if the power is exercisable at the
14    powerholder's death.
 
15    Section 502. Creditor claim: general power not created by
16powerholder.
17    (a) Except as otherwise provided in subsection (b),
18appointive property subject to a general power of appointment
19created by a person other than the powerholder is subject to a
20claim of a creditor of:
21        (1) the powerholder, to the extent the powerholder's
22    property is insufficient, if the power is presently
23    exercisable; and
24        (2) the powerholder's estate if the power is exercised
25    at the powerholder's death, to the extent the estate is

 

 

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1    insufficient, subject to the right of the deceased
2    powerholder to direct the source from which liabilities are
3    paid.
4    (b) Subject to subsection (c) of Section 504, a power of
5appointment created by a person other than the powerholder
6which is subject to an ascertainable standard relating to an
7individual's health, education, support, or maintenance within
8the meaning of 26 U.S.C. 2041(b)(1)(A) or 26 U.S.C. 2514(c)(1),
9as amended, is treated for purposes of this Article as a
10nongeneral power.
 
11    Section 503. Power to withdraw.
12    (a) For purposes of this Article, and except as otherwise
13provided in subsection (b), a power to withdraw property from a
14trust is treated, during the time the power may be exercised,
15as a presently exercisable general power of appointment to the
16extent of the property subject to the power to withdraw.
17    (b) A power to withdraw property from a trust ceases to be
18treated as a presently exercisable general power of appointment
19upon its lapse, release, or waiver.
 
20    Section 504. Creditor claim: nongeneral power.
21    (a) Except as otherwise provided in subsections (b) and
22(c), appointive property subject to a nongeneral power of
23appointment is exempt from a claim of a creditor of the
24powerholder or the powerholder's estate.

 

 

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1    (b) Appointive property subject to a nongeneral power of
2appointment is subject to a claim of a creditor of the
3powerholder or the powerholder's estate to the extent that the
4powerholder owned the property and, reserving the nongeneral
5power, transferred the property in violation of the Uniform
6Fraudulent Transfer Act.
7    (c) If the initial gift in default of appointment is to the
8powerholder or the powerholder's estate, a nongeneral power of
9appointment is treated for purposes of this Section as a
10general power.
 
11
Article 6. Miscellaneous provisions.

 
12    Section 601. Uniformity of application and construction.
13In applying and construing this uniform Act, consideration must
14be given to the need to promote uniformity of the law with
15respect to its subject matter among states that enact it.
 
16    Section 602. (Blank).
 
17    Section 603. Application to existing relationships.
18    (a) Except as otherwise provided in this Act, on and after
19the effective date of this Act:
20        (1) this Act applies to a power of appointment created
21    before, on, or after its effective date;
22        (2) this Act applies to a judicial proceeding

 

 

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1    concerning a power of appointment commenced on or after its
2    effective date;
3        (3) this Act applies to a judicial proceeding
4    concerning a power of appointment commenced before its
5    effective date unless the court finds that application of a
6    particular provision of this Act would substantially
7    interfere with the effective conduct of the judicial
8    proceeding or prejudice a right of a party, in which case
9    the particular provision of this Act does not apply and the
10    superseded law applies;
11        (4) a rule of construction or presumption provided in
12    this Act applies to an instrument executed before the
13    effective date of the Act unless there is a clear
14    indication of a contrary intent in the terms of the
15    instrument; and
16        (5) an act done before the effective date of this Act
17    is not affected by this Act.
18    (b) If a right is acquired, extinguished, or barred on the
19expiration of a prescribed period that commenced under law of
20this State other than this Act before the effective date of
21this Act, the law continues to apply to the right.
22    (c) No trustee is liable to any person in whose favor a
23power of appointment may have been exercised for any
24distribution of property made to persons entitled to take in
25default of the effective exercise of the power of appointment
26to the extent that the distribution shall have been completed

 

 

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1prior to the effective date of this Act.
 
2    Section 604. The Probate Act of 1975 is amended by changing
3Section 2-7 as follows:
 
4    (755 ILCS 5/2-7)  (from Ch. 110 1/2, par. 2-7)
5    Sec. 2-7. Disclaimer. (a) Right to Disclaim Interest in
6Property. A person to whom any property or interest therein
7passes, by whatever means, may disclaim the property or
8interest in whole or in part by delivering or filing a written
9disclaimer as hereinafter provided. A disclaimer may be of a
10fractional share or undivided interest, a specifically
11identifiable asset, portion or amount, any limited interest or
12estate or any property or interest derived through right of
13survivorship. A powerholder, as that term is defined in Section
14102 of the Uniform Powers of Appointment Act, power (as defined
15in "An Act Concerning Termination of Powers", approved May 25,
161943, as amended) with respect to property shall be deemed to
17be a holder of an interest in such property.
18    The representative of a decedent or ward may disclaim on
19behalf of the decedent or ward with leave of court. The court
20may approve the disclaimer by a representative of a decedent if
21it finds that the disclaimer benefits the estate as a whole and
22those interested in the estate generally even if the disclaimer
23alters the distribution of the property, part or interest
24disclaimed. The court may approve the disclaimer by a

 

 

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1representative of a ward if it finds that it benefits those
2interested in the estate generally and is not materially
3detrimental to the interests of the ward. A disclaimer by a
4representative of a decedent or ward may be made without leave
5of court if a will or other instrument signed by the decedent
6or ward designating the representative specifically authorizes
7the representative to disclaim without court approval.
8    The right to disclaim granted by this Section exists
9irrespective of any limitation on the interest of the
10disclaimant in the nature of a spendthrift provision or similar
11restriction.
12    (b) Form of Disclaimer. The disclaimer shall (1) describe
13the property or part or interest disclaimed, (2) be signed by
14the disclaimant or his representative and (3) declare the
15disclaimer and the extent thereof.
16    (c) Delivery of Disclaimer. The disclaimer shall be
17delivered to the transferor or donor or his representative, or
18to the trustee or other person who has legal title to the
19property, part or interest disclaimed, or, if none of the
20foregoing is readily determinable, shall be either delivered to
21a person having possession of the property, part or interest or
22who is entitled thereto by reason of the disclaimer, or filed
23or recorded as hereinafter provided. In the case of an interest
24passing by reason of the death of any person, an executed
25counterpart of the disclaimer may be filed with the clerk of
26the circuit court in the county in which the estate of the

 

 

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1decedent is administered, or, if administration has not been
2commenced, in which it could be commenced. If an interest in
3real property is disclaimed, an executed counterpart of the
4disclaimer may be recorded in the office of the recorder in the
5county in which the real estate lies, or, if the title to the
6real estate is registered under "An Act concerning land
7titles", approved May 1, 1897, as amended, may be filed in the
8office of the registrar of titles of such county.
9    (d) Effect of Disclaimer. Unless expressly provided
10otherwise in an instrument transferring the property or
11creating the interest disclaimed, the property, part or
12interest disclaimed shall descend or be distributed (1) if a
13present interest (a) in the case of a transfer by reason of the
14death of any person, as if the disclaimant had predeceased the
15decedent; (b) in the case of a transfer by revocable instrument
16or contract, as if the disclaimant had predeceased the date the
17maker no longer has the power to transfer to himself or another
18the entire legal and equitable ownership of the property or
19interest; or (c) in the case of any other inter vivos transfer,
20as if the disclaimant had predeceased the date of the transfer;
21and (2) if a future interest, as if the disclaimant had
22predeceased the event that which determines that the taker of
23the property or interest has become finally ascertained and his
24interest has become indefeasibly fixed both in quality and
25quantity; and in each case the disclaimer shall relate back to
26such date for all purposes.

 

 

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1    A disclaimer of property or an interest in property shall
2not preclude any disclaimant from receiving the same property
3in another capacity or from receiving other interests in the
4property to which the disclaimer relates.
5    Unless expressly provided otherwise in an instrument
6transferring the property or creating the interest disclaimed,
7a future interest limited to take effect at or after the
8termination of the estate or interest disclaimed shall
9accelerate and take effect in possession and enjoyment to the
10same extent as if the disclaimant had died before the date to
11which the disclaimer relates back.
12    A disclaimer made pursuant to this Section shall be
13irrevocable and shall be binding upon the disclaimant and all
14persons claiming by, through or under the disclaimant.
15    (e) Waiver and Bar. The right to disclaim property or a
16part thereof or an interest therein shall be barred by (1) a
17judicial sale of the property, part or interest before the
18disclaimer is effected; (2) an assignment, conveyance,
19encumbrance, pledge, sale or other transfer of the property,
20part or interest, or a contract therefor, by the disclaimant or
21his representative; (3) a written waiver of the right to
22disclaim; or (4) an acceptance of the property, part or
23interest by the disclaimant or his representative. Any person
24may presume, in the absence of actual knowledge to the
25contrary, that a disclaimer delivered or filed as provided in
26this Section is a valid disclaimer that which is not barred by

 

 

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1the preceding provisions of this paragraph.
2    A written waiver of the right to disclaim may be made by
3any person or his representative and an executed counterpart of
4a waiver of the right to disclaim may be recorded or filed, all
5in the same manner as provided in this Section with respect to
6a disclaimer.
7    In every case, acceptance must be affirmatively proved in
8order to constitute a bar to a disclaimer. An acceptance of
9property or an interest in property shall include the taking of
10possession, the acceptance of delivery or the receipt of
11benefits of the property or interest; except that (1) in the
12case of an interest in joint tenancy with right of survivorship
13such acceptance shall extend only to the fractional share of
14such property or interest determined by dividing the number one
15by the number of joint tenants, and (2) in the case of a ward,
16such acceptance shall extend only to property actually received
17by or on behalf of the ward or his representative during his
18minority or incapacity. The mere lapse of time or creation of
19an interest, in joint tenancy with right of survivorship or
20otherwise, with or without knowledge of the interest on the
21part of the disclaimant, shall not constitute acceptance for
22purposes of this Section.
23    This Section does not abridge the right of any person to
24assign, convey, release, renounce or disclaim any property or
25interest therein arising under any other statute or that which
26arose under prior law.

 

 

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1    Any interest in real or personal property that which exists
2on or after the effective date of this Section may be
3disclaimed after that date in the manner provided herein, but
4no interest that which has arisen prior to that date in any
5person other than the disclaimant shall be destroyed or
6diminished by any action of the disclaimant taken pursuant to
7this Section.
8(Source: P.A. 83-1362.)
 
9    (755 ILCS 5/4-2 rep.)
10    Section 604.1. The Probate Act of 1975 is amended by
11repealing Section 4-2.
 
12    (765 ILCS 320/Act rep.)
13    Section 604.2. The Power of Appointment Exercise Act is
14repealed.
 
15    (765 ILCS 325/Act rep.)
16    Section 604.3. The Termination of Powers Act is repealed.