SB0090 EnrolledLRB099 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 and either (1) a plenary guardian has
15been appointed for the testator under subsection (c) of Section
1611a-12 of this Act or (2) a limited guardian has been appointed
17for the testator under subsection (b) of Section 11a-12 of this
18Act and the court has found that the testator lacks
19testamentary capacity. The rebuttable presumption is overcome
20by clear and convincing evidence that the testator had the
21capacity to execute the will or codicil at the time the will or
22codicil was executed. The rebuttable presumption does not apply
23if the will or codicil was completed in compliance with



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1subsection (d-5) of Section lla-18 of this Act. This subsection
2(b) applies only to wills or codicils executed or modified
3after the effective date of this amendatory Act of the 99th
4General Assembly.
5(Source: P.A. 80-808.)
6    (755 ILCS 5/11a-18)  (from Ch. 110 1/2, par. 11a-18)
7    Sec. 11a-18. Duties of the estate guardian.
8    (a) To the extent specified in the order establishing the
9guardianship, the guardian of the estate shall have the care,
10management and investment of the estate, shall manage the
11estate frugally and shall apply the income and principal of the
12estate so far as necessary for the comfort and suitable support
13and education of the ward, his minor and adult dependent
14children, and persons related by blood or marriage who are
15dependent upon or entitled to support from him, or for any
16other purpose which the court deems to be for the best
17interests of the ward, and the court may approve the making on
18behalf of the ward of such agreements as the court determines
19to be for the ward's best interests. The guardian may make
20disbursement of his ward's funds and estate directly to the
21ward or other distributee or in such other manner and in such
22amounts as the court directs. If the estate of a ward is
23derived in whole or in part from payments of compensation,
24adjusted compensation, pension, insurance or other similar
25benefits made directly to the estate by the Veterans



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1Administration, notice of the application for leave to invest
2or expend the ward's funds or estate, together with a copy of
3the petition and proposed order, shall be given to the
4Veterans' Administration Regional Office in this State at least
57 days before the hearing on the application.
6    (a-5) The probate court, upon petition of a guardian, other
7than the guardian of a minor, and after notice to all other
8persons interested as the court directs, may authorize the
9guardian to exercise any or all powers over the estate and
10business affairs of the ward that the ward could exercise if
11present and not under disability. The court may authorize the
12taking of an action or the application of funds not required
13for the ward's current and future maintenance and support in
14any manner approved by the court as being in keeping with the
15ward's wishes so far as they can be ascertained. The court must
16consider the permanence of the ward's disabling condition and
17the natural objects of the ward's bounty. In ascertaining and
18carrying out the ward's wishes the court may consider, but
19shall not be limited to, minimization of State or federal
20income, estate, or inheritance taxes; and providing gifts to
21charities, relatives, and friends that would be likely
22recipients of donations from the ward. The ward's wishes as
23best they can be ascertained shall be carried out, whether or
24not tax savings are involved. Actions or applications of funds
25may include, but shall not be limited to, the following:
26        (1) making gifts of income or principal, or both, of



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1    the estate, either outright or in trust;
2        (2) conveying, releasing, or disclaiming his or her
3    contingent and expectant interests in property, including
4    marital property rights and any right of survivorship
5    incident to joint tenancy or tenancy by the entirety;
6        (3) releasing or disclaiming his or her powers as
7    trustee, personal representative, custodian for minors, or
8    guardian;
9        (4) exercising, releasing, or disclaiming his or her
10    powers as donee of a power of appointment;
11        (5) entering into contracts;
12        (6) creating for the benefit of the ward or others,
13    revocable or irrevocable trusts of his or her property that
14    may extend beyond his or her disability or life;
15        (7) exercising options of the ward to purchase or
16    exchange securities or other property;
17        (8) exercising the rights of the ward to elect benefit
18    or payment options, to terminate, to change beneficiaries
19    or ownership, to assign rights, to borrow, or to receive
20    cash value in return for a surrender of rights under any
21    one or more of the following:
22            (i) life insurance policies, plans, or benefits,
23            (ii) annuity policies, plans, or benefits,
24            (iii) mutual fund and other dividend investment
25        plans,
26            (iv) retirement, profit sharing, and employee



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



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



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



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