Sen. Ira I. Silverstein

Filed: 3/20/2015





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2    AMENDMENT NO. ______. Amend Senate Bill 90 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Probate Act of 1975 is amended by changing
5Sections 4-1 and 11a-18 as follows:
6    (755 ILCS 5/4-1)  (from Ch. 110 1/2, par. 4-1)
7    Sec. 4-1. Capacity of testator.)
8    (a) Every person who has attained the age of 18 years and
9is of sound mind and memory has power to bequeath by will the
10real and personal estate which he has at the time of his death.
11    (b) Except as stated herein, there is a rebuttable
12presumption that a will or codicil is void if it was executed
13or modified after the testator is adjudicated disabled under
14Article XIa of this Act. The rebuttable presumption is overcome
15by clear and convincing evidence that the testator had the
16capacity to execute the will or codicil at the time the will or



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1codicil was executed. The rebuttable presumption does not apply
2if the will or codicil was completed in compliance with
3subsection (d-5) of Section lla-18 of this Act. This subsection
4(b) applies only to wills or codicils executed or modified
5after the effective date of this amendatory Act of the 99th
6General Assembly.
7(Source: P.A. 80-808.)
8    (755 ILCS 5/11a-18)  (from Ch. 110 1/2, par. 11a-18)
9    Sec. 11a-18. Duties of the estate guardian.
10    (a) To the extent specified in the order establishing the
11guardianship, the guardian of the estate shall have the care,
12management and investment of the estate, shall manage the
13estate frugally and shall apply the income and principal of the
14estate so far as necessary for the comfort and suitable support
15and education of the ward, his minor and adult dependent
16children, and persons related by blood or marriage who are
17dependent upon or entitled to support from him, or for any
18other purpose which the court deems to be for the best
19interests of the ward, and the court may approve the making on
20behalf of the ward of such agreements as the court determines
21to be for the ward's best interests. The guardian may make
22disbursement of his ward's funds and estate directly to the
23ward or other distributee or in such other manner and in such
24amounts as the court directs. If the estate of a ward is
25derived in whole or in part from payments of compensation,



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1adjusted compensation, pension, insurance or other similar
2benefits made directly to the estate by the Veterans
3Administration, notice of the application for leave to invest
4or expend the ward's funds or estate, together with a copy of
5the petition and proposed order, shall be given to the
6Veterans' Administration Regional Office in this State at least
77 days before the hearing on the application.
8    (a-5) The probate court, upon petition of a guardian, other
9than the guardian of a minor, and after notice to all other
10persons interested as the court directs, may authorize the
11guardian to exercise any or all powers over the estate and
12business affairs of the ward that the ward could exercise if
13present and not under disability. The court may authorize the
14taking of an action or the application of funds not required
15for the ward's current and future maintenance and support in
16any manner approved by the court as being in keeping with the
17ward's wishes so far as they can be ascertained. The court must
18consider the permanence of the ward's disabling condition and
19the natural objects of the ward's bounty. In ascertaining and
20carrying out the ward's wishes the court may consider, but
21shall not be limited to, minimization of State or federal
22income, estate, or inheritance taxes; and providing gifts to
23charities, relatives, and friends that would be likely
24recipients of donations from the ward. The ward's wishes as
25best they can be ascertained shall be carried out, whether or
26not tax savings are involved. Actions or applications of funds



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1may include, but shall not be limited to, the following:
2        (1) making gifts of income or principal, or both, of
3    the estate, either outright or in trust;
4        (2) conveying, releasing, or disclaiming his or her
5    contingent and expectant interests in property, including
6    marital property rights and any right of survivorship
7    incident to joint tenancy or tenancy by the entirety;
8        (3) releasing or disclaiming his or her powers as
9    trustee, personal representative, custodian for minors, or
10    guardian;
11        (4) exercising, releasing, or disclaiming his or her
12    powers as donee of a power of appointment;
13        (5) entering into contracts;
14        (6) creating for the benefit of the ward or others,
15    revocable or irrevocable trusts of his or her property that
16    may extend beyond his or her disability or life;
17        (7) exercising options of the ward to purchase or
18    exchange securities or other property;
19        (8) exercising the rights of the ward to elect benefit
20    or payment options, to terminate, to change beneficiaries
21    or ownership, to assign rights, to borrow, or to receive
22    cash value in return for a surrender of rights under any
23    one or more of the following:
24            (i) life insurance policies, plans, or benefits,
25            (ii) annuity policies, plans, or benefits,
26            (iii) mutual fund and other dividend investment



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1        plans,
2            (iv) retirement, profit sharing, and employee
3        welfare plans and benefits;
4        (9) exercising his or her right to claim or disclaim an
5    elective share in the estate of his or her deceased spouse
6    and to renounce any interest by testate or intestate
7    succession or by inter vivos transfer;
8        (10) changing the ward's residence or domicile; or
9        (11) modifying by means of codicil or trust amendment
10    the terms of the ward's will or any revocable trust created
11    by the ward, as the court may consider advisable in light
12    of changes in applicable tax laws.
13    The guardian in his or her petition shall briefly outline
14the action or application of funds for which he or she seeks
15approval, the results expected to be accomplished thereby, and
16the tax savings, if any, expected to accrue. The proposed
17action or application of funds may include gifts of the ward's
18personal property or real estate, but transfers of real estate
19shall be subject to the requirements of Section 20 of this Act.
20Gifts may be for the benefit of prospective legatees, devisees,
21or heirs apparent of the ward or may be made to individuals or
22charities in which the ward is believed to have an interest.
23The guardian shall also indicate in the petition that any
24planned disposition is consistent with the intentions of the
25ward insofar as they can be ascertained, and if the ward's
26intentions cannot be ascertained, the ward will be presumed to



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1favor reduction in the incidents of various forms of taxation
2and the partial distribution of his or her estate as provided
3in this subsection. The guardian shall not, however, be
4required to include as a beneficiary or fiduciary any person
5who he has reason to believe would be excluded by the ward. A
6guardian shall be required to investigate and pursue a ward's
7eligibility for governmental benefits.
8    (b) Upon the direction of the court which issued his
9letters, a guardian may perform the contracts of his ward which
10were legally subsisting at the time of the commencement of the
11ward's disability. The court may authorize the guardian to
12execute and deliver any bill of sale, deed or other instrument.
13    (c) The guardian of the estate of a ward shall appear for
14and represent the ward in all legal proceedings unless another
15person is appointed for that purpose as guardian or next
16friend. This does not impair the power of any court to appoint
17a guardian ad litem or next friend to defend the interests of
18the ward in that court, or to appoint or allow any person as
19the next friend of a ward to commence, prosecute or defend any
20proceeding in his behalf. Without impairing the power of the
21court in any respect, if the guardian of the estate of a ward
22and another person as next friend shall appear for and
23represent the ward in a legal proceeding in which the
24compensation of the attorney or attorneys representing the
25guardian and next friend is solely determined under a
26contingent fee arrangement, the guardian of the estate of the



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1ward shall not participate in or have any duty to review the
2prosecution of the action, to participate in or review the
3appropriateness of any settlement of the action, or to
4participate in or review any determination of the
5appropriateness of any fees awarded to the attorney or
6attorneys employed in the prosecution of the action.
7    (d) Adjudication of disability shall not revoke or
8otherwise terminate a trust which is revocable by the ward. A
9guardian of the estate shall have no authority to revoke a
10trust that is revocable by the ward, except that the court may
11authorize a guardian to revoke a Totten trust or similar
12deposit or withdrawable capital account in trust to the extent
13necessary to provide funds for the purposes specified in
14paragraph (a) of this Section. If the trustee of any trust for
15the benefit of the ward has discretionary power to apply income
16or principal for the ward's benefit, the trustee shall not be
17required to distribute any of the income or principal to the
18guardian of the ward's estate, but the guardian may bring an
19action on behalf of the ward to compel the trustee to exercise
20the trustee's discretion or to seek relief from an abuse of
21discretion. This paragraph shall not limit the right of a
22guardian of the estate to receive accountings from the trustee
23on behalf of the ward.
24    (d-5) Upon a verified petition by the plenary or limited
25guardian of the estate or the request of the ward that is
26accompanied by a current physician's report that states the



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1ward possesses testamentary capacity, the court may enter an
2order authorizing the ward to execute a will or codicil. In so
3ordering, the court shall authorize the guardian to retain
4independent counsel for the ward with whom the ward may execute
5or modify a will or codicil.
6    (e) Absent court order pursuant to the Illinois Power of
7Attorney Act directing a guardian to exercise powers of the
8principal under an agency that survives disability, the
9guardian will have no power, duty or liability with respect to
10any property subject to the agency. This subsection (e) applies
11to all agencies, whenever and wherever executed.
12    (f) Upon petition by any interested person (including the
13standby or short-term guardian), with such notice to interested
14persons as the court directs and a finding by the court that it
15is in the best interest of the disabled person, the court may
16terminate or limit the authority of a standby or short-term
17guardian or may enter such other orders as the court deems
18necessary to provide for the best interest of the disabled
19person. The petition for termination or limitation of the
20authority of a standby or short-term guardian may, but need
21not, be combined with a petition to have another guardian
22appointed for the disabled person.
23(Source: P.A. 95-331, eff. 8-21-07.)".