SB0090 EngrossedLRB099 05209 HEP 25243 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    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
17codicil was executed. The rebuttable presumption does not apply
18if the will or codicil was completed in compliance with
19subsection (d-5) of Section lla-18 of this Act. This subsection
20(b) applies only to wills or codicils executed or modified
21after the effective date of this amendatory Act of the 99th
22General Assembly.
23(Source: P.A. 80-808.)



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1    (755 ILCS 5/11a-18)  (from Ch. 110 1/2, par. 11a-18)
2    Sec. 11a-18. Duties of the estate guardian.
3    (a) To the extent specified in the order establishing the
4guardianship, the guardian of the estate shall have the care,
5management and investment of the estate, shall manage the
6estate frugally and shall apply the income and principal of the
7estate so far as necessary for the comfort and suitable support
8and education of the ward, his minor and adult dependent
9children, and persons related by blood or marriage who are
10dependent upon or entitled to support from him, or for any
11other purpose which the court deems to be for the best
12interests of the ward, and the court may approve the making on
13behalf of the ward of such agreements as the court determines
14to be for the ward's best interests. The guardian may make
15disbursement of his ward's funds and estate directly to the
16ward or other distributee or in such other manner and in such
17amounts as the court directs. If the estate of a ward is
18derived in whole or in part from payments of compensation,
19adjusted compensation, pension, insurance or other similar
20benefits made directly to the estate by the Veterans
21Administration, notice of the application for leave to invest
22or expend the ward's funds or estate, together with a copy of
23the petition and proposed order, shall be given to the
24Veterans' Administration Regional Office in this State at least
257 days before the hearing on the application.



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1    (a-5) The probate court, upon petition of a guardian, other
2than the guardian of a minor, and after notice to all other
3persons interested as the court directs, may authorize the
4guardian to exercise any or all powers over the estate and
5business affairs of the ward that the ward could exercise if
6present and not under disability. The court may authorize the
7taking of an action or the application of funds not required
8for the ward's current and future maintenance and support in
9any manner approved by the court as being in keeping with the
10ward's wishes so far as they can be ascertained. The court must
11consider the permanence of the ward's disabling condition and
12the natural objects of the ward's bounty. In ascertaining and
13carrying out the ward's wishes the court may consider, but
14shall not be limited to, minimization of State or federal
15income, estate, or inheritance taxes; and providing gifts to
16charities, relatives, and friends that would be likely
17recipients of donations from the ward. The ward's wishes as
18best they can be ascertained shall be carried out, whether or
19not tax savings are involved. Actions or applications of funds
20may include, but shall not be limited to, the following:
21        (1) making gifts of income or principal, or both, of
22    the estate, either outright or in trust;
23        (2) conveying, releasing, or disclaiming his or her
24    contingent and expectant interests in property, including
25    marital property rights and any right of survivorship
26    incident to joint tenancy or tenancy by the entirety;



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1        (3) releasing or disclaiming his or her powers as
2    trustee, personal representative, custodian for minors, or
3    guardian;
4        (4) exercising, releasing, or disclaiming his or her
5    powers as donee of a power of appointment;
6        (5) entering into contracts;
7        (6) creating for the benefit of the ward or others,
8    revocable or irrevocable trusts of his or her property that
9    may extend beyond his or her disability or life;
10        (7) exercising options of the ward to purchase or
11    exchange securities or other property;
12        (8) exercising the rights of the ward to elect benefit
13    or payment options, to terminate, to change beneficiaries
14    or ownership, to assign rights, to borrow, or to receive
15    cash value in return for a surrender of rights under any
16    one or more of the following:
17            (i) life insurance policies, plans, or benefits,
18            (ii) annuity policies, plans, or benefits,
19            (iii) mutual fund and other dividend investment
20        plans,
21            (iv) retirement, profit sharing, and employee
22        welfare plans and benefits;
23        (9) exercising his or her right to claim or disclaim an
24    elective share in the estate of his or her deceased spouse
25    and to renounce any interest by testate or intestate
26    succession or by inter vivos transfer;



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1        (10) changing the ward's residence or domicile; or
2        (11) modifying by means of codicil or trust amendment
3    the terms of the ward's will or any revocable trust created
4    by the ward, as the court may consider advisable in light
5    of changes in applicable tax laws.
6    The guardian in his or her petition shall briefly outline
7the action or application of funds for which he or she seeks
8approval, the results expected to be accomplished thereby, and
9the tax savings, if any, expected to accrue. The proposed
10action or application of funds may include gifts of the ward's
11personal property or real estate, but transfers of real estate
12shall be subject to the requirements of Section 20 of this Act.
13Gifts may be for the benefit of prospective legatees, devisees,
14or heirs apparent of the ward or may be made to individuals or
15charities in which the ward is believed to have an interest.
16The guardian shall also indicate in the petition that any
17planned disposition is consistent with the intentions of the
18ward insofar as they can be ascertained, and if the ward's
19intentions cannot be ascertained, the ward will be presumed to
20favor reduction in the incidents of various forms of taxation
21and the partial distribution of his or her estate as provided
22in this subsection. The guardian shall not, however, be
23required to include as a beneficiary or fiduciary any person
24who he has reason to believe would be excluded by the ward. A
25guardian shall be required to investigate and pursue a ward's
26eligibility for governmental benefits.



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1    (b) Upon the direction of the court which issued his
2letters, a guardian may perform the contracts of his ward which
3were legally subsisting at the time of the commencement of the
4ward's disability. The court may authorize the guardian to
5execute and deliver any bill of sale, deed or other instrument.
6    (c) The guardian of the estate of a ward shall appear for
7and represent the ward in all legal proceedings unless another
8person is appointed for that purpose as guardian or next
9friend. This does not impair the power of any court to appoint
10a guardian ad litem or next friend to defend the interests of
11the ward in that court, or to appoint or allow any person as
12the next friend of a ward to commence, prosecute or defend any
13proceeding in his behalf. Without impairing the power of the
14court in any respect, if the guardian of the estate of a ward
15and another person as next friend shall appear for and
16represent the ward in a legal proceeding in which the
17compensation of the attorney or attorneys representing the
18guardian and next friend is solely determined under a
19contingent fee arrangement, the guardian of the estate of the
20ward shall not participate in or have any duty to review the
21prosecution of the action, to participate in or review the
22appropriateness of any settlement of the action, or to
23participate in or review any determination of the
24appropriateness of any fees awarded to the attorney or
25attorneys employed in the prosecution of the action.
26    (d) Adjudication of disability shall not revoke or



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1otherwise terminate a trust which is revocable by the ward. A
2guardian of the estate shall have no authority to revoke a
3trust that is revocable by the ward, except that the court may
4authorize a guardian to revoke a Totten trust or similar
5deposit or withdrawable capital account in trust to the extent
6necessary to provide funds for the purposes specified in
7paragraph (a) of this Section. If the trustee of any trust for
8the benefit of the ward has discretionary power to apply income
9or principal for the ward's benefit, the trustee shall not be
10required to distribute any of the income or principal to the
11guardian of the ward's estate, but the guardian may bring an
12action on behalf of the ward to compel the trustee to exercise
13the trustee's discretion or to seek relief from an abuse of
14discretion. This paragraph shall not limit the right of a
15guardian of the estate to receive accountings from the trustee
16on behalf of the ward.
17    (d-5) Upon a verified petition by the plenary or limited
18guardian of the estate or the request of the ward that is
19accompanied by a current physician's report that states the
20ward possesses testamentary capacity, the court may enter an
21order authorizing the ward to execute a will or codicil. In so
22ordering, the court shall authorize the guardian to retain
23independent counsel for the ward with whom the ward may execute
24or modify a will or codicil.
25    (e) Absent court order pursuant to the Illinois Power of
26Attorney Act directing a guardian to exercise powers of the



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1principal under an agency that survives disability, the
2guardian will have no power, duty or liability with respect to
3any property subject to the agency. This subsection (e) applies
4to all agencies, whenever and wherever executed.
5    (f) Upon petition by any interested person (including the
6standby or short-term guardian), with such notice to interested
7persons as the court directs and a finding by the court that it
8is in the best interest of the disabled person, the court may
9terminate or limit the authority of a standby or short-term
10guardian or may enter such other orders as the court deems
11necessary to provide for the best interest of the disabled
12person. The petition for termination or limitation of the
13authority of a standby or short-term guardian may, but need
14not, be combined with a petition to have another guardian
15appointed for the disabled person.
16(Source: P.A. 95-331, eff. 8-21-07.)