Full Text of SB0090 99th General Assembly
SB0090sam001 99TH GENERAL ASSEMBLY | Sen. Ira I. Silverstein Filed: 3/20/2015
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| 1 | | AMENDMENT TO SENATE BILL 90
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 90 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Probate Act of 1975 is amended by changing | 5 | | Sections 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 | 9 | | is of sound
mind and memory has power to bequeath by will the | 10 | | real and personal estate which he
has at the time of his death.
| 11 | | (b) Except as stated herein, there is a rebuttable | 12 | | presumption that a will or codicil is void if it was executed | 13 | | or modified after the testator is adjudicated disabled under | 14 | | Article XIa of this Act. The rebuttable presumption is overcome | 15 | | by clear and convincing evidence that the testator had the | 16 | | capacity to execute the will or codicil at the time the will or |
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| 1 | | codicil was
executed. The rebuttable presumption does not apply | 2 | | if the will or codicil was completed in
compliance with | 3 | | subsection (d-5) of Section lla-18 of this Act. This subsection | 4 | | (b) applies only to wills or codicils executed or modified | 5 | | after the effective date of this amendatory Act of the 99th | 6 | | General
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 | 11 | | guardianship, the guardian of
the estate shall have the care, | 12 | | management and
investment of the estate, shall manage the | 13 | | estate frugally and shall
apply the income and principal of the | 14 | | estate so far as necessary for the
comfort and suitable support | 15 | | and education of the ward, his minor and adult
dependent | 16 | | children, and persons related by blood or marriage
who are | 17 | | dependent upon or entitled to support from him, or for any | 18 | | other
purpose which the court deems to be for the best | 19 | | interests of the ward,
and the court may approve the making on | 20 | | behalf of the ward of such
agreements as the court determines | 21 | | to be for the ward's best interests.
The guardian may make | 22 | | disbursement of his ward's
funds and estate directly to the | 23 | | ward or other distributee or in such
other manner and in such | 24 | | amounts as the court directs. If the estate of
a ward is | 25 | | derived in whole or in part from payments of compensation,
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| 1 | | adjusted compensation, pension, insurance or other similar | 2 | | benefits made
directly to the estate by the Veterans | 3 | | Administration, notice of the
application for leave to invest | 4 | | or expend the ward's funds or estate,
together with a copy of | 5 | | the petition and proposed order, shall be given
to the | 6 | | Veterans' Administration Regional Office in this State at least | 7 | | 7
days before the hearing on the application.
| 8 | | (a-5) The probate court, upon petition of a guardian, other | 9 | | than the
guardian of a minor, and after notice to all other | 10 | | persons interested as the
court directs, may authorize the | 11 | | guardian to exercise any or all powers over
the estate and | 12 | | business affairs of the ward that the ward could exercise if
| 13 | | present and not under disability. The court may authorize the | 14 | | taking of an
action or the application of funds not required | 15 | | for the ward's current and
future maintenance
and support in | 16 | | any manner approved by the court as being in keeping with the
| 17 | | ward's wishes so far as they can be ascertained. The court must | 18 | | consider the
permanence of the ward's disabling condition and | 19 | | the natural objects of the
ward's bounty. In ascertaining and | 20 | | carrying
out the ward's wishes the court may consider, but | 21 | | shall not be limited to,
minimization of State or federal | 22 | | income, estate, or inheritance taxes; and
providing gifts to | 23 | | charities, relatives, and friends that would be likely
| 24 | | recipients of donations from the ward. The ward's wishes as | 25 | | best they can be
ascertained shall be carried out, whether or | 26 | | not tax savings are involved.
Actions or applications of funds |
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| 1 | | may 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 | 14 | | the action or
application of funds for which he or she seeks | 15 | | approval, the results expected
to be accomplished thereby, and | 16 | | the tax savings, if any, expected to accrue.
The proposed | 17 | | action or application of funds may include gifts of the ward's
| 18 | | personal property or real estate, but transfers of real estate | 19 | | shall be subject
to the requirements of Section 20 of this Act. | 20 | | Gifts may be for
the benefit of prospective legatees, devisees, | 21 | | or heirs apparent of the ward
or may be made to individuals or | 22 | | charities in which the ward is believed to
have an interest. | 23 | | The guardian shall also indicate in the petition that any
| 24 | | planned disposition is consistent with the intentions of the | 25 | | ward insofar as
they can be ascertained, and if the ward's | 26 | | intentions cannot be ascertained,
the ward will be presumed to |
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| 1 | | favor reduction in the incidents of various forms
of taxation | 2 | | and the partial distribution of his or her estate as provided | 3 | | in
this subsection. The guardian shall not, however, be | 4 | | required to include as
a beneficiary or fiduciary any person | 5 | | who he has reason to believe would be
excluded by the ward. A | 6 | | guardian shall be required to investigate and pursue
a ward's | 7 | | eligibility for governmental benefits.
| 8 | | (b) Upon the direction of the court which issued his | 9 | | letters,
a guardian may perform the contracts of his ward which | 10 | | were
legally subsisting at the time of the commencement of the | 11 | | ward's
disability. The court may authorize the guardian to | 12 | | execute and deliver
any bill of sale, deed or other instrument.
| 13 | | (c) The guardian of the estate of a ward shall
appear for | 14 | | and represent the ward in all legal proceedings unless another
| 15 | | person is appointed for that purpose as guardian or next | 16 | | friend. This does not
impair the power of any court to appoint | 17 | | a guardian ad litem or next friend
to defend the interests of | 18 | | the ward in that court, or to appoint or allow any
person as | 19 | | the next friend of a ward to commence, prosecute or defend any
| 20 | | proceeding in his behalf. Without impairing the power of the | 21 | | court in any
respect, if the guardian of the estate of a ward | 22 | | and another person as next
friend shall appear for and | 23 | | represent the ward in a legal proceeding in which
the | 24 | | compensation of the attorney or attorneys representing the | 25 | | guardian and
next friend is solely determined under a | 26 | | contingent fee arrangement, the
guardian of the estate of the |
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| 1 | | ward shall not participate in or have any duty
to review the | 2 | | prosecution of the action, to participate in or review the
| 3 | | appropriateness of any settlement of the action, or to | 4 | | participate in or review
any determination of the | 5 | | appropriateness of any fees awarded to the attorney or
| 6 | | attorneys employed in the prosecution of the action.
| 7 | | (d) Adjudication of disability shall not revoke or
| 8 | | otherwise terminate a trust which is revocable by the ward. A | 9 | | guardian of the
estate shall have no authority to revoke a | 10 | | trust that is revocable by the
ward, except that the court may | 11 | | authorize a guardian to revoke a Totten trust
or similar | 12 | | deposit or withdrawable capital account in trust to the extent
| 13 | | necessary to provide funds for the purposes specified in | 14 | | paragraph (a) of
this Section. If the trustee of any trust for | 15 | | the benefit of the ward has
discretionary power to apply income | 16 | | or principal for the ward's benefit,
the trustee shall not be | 17 | | required to distribute any of the income or principal
to the | 18 | | guardian of the ward's estate, but the guardian may
bring an | 19 | | action on behalf of the ward to compel
the trustee to exercise | 20 | | the trustee's discretion or to seek relief from
an abuse of | 21 | | discretion. This paragraph shall not limit the right of a
| 22 | | guardian of the estate to receive accountings from the trustee
| 23 | | on behalf of the ward.
| 24 | | (d-5) Upon a verified petition by the plenary or limited | 25 | | guardian of the estate or the request of the ward that is | 26 | | accompanied by a current physician's report that states the |
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| 1 | | ward possesses testamentary capacity, the court may enter an | 2 | | order authorizing the ward to execute a will or codicil. In so | 3 | | ordering, the court shall authorize the guardian to retain | 4 | | independent counsel for the ward with whom the ward may execute | 5 | | or modify a will or codicil. | 6 | | (e) Absent court order pursuant to the Illinois Power of | 7 | | Attorney
Act directing a guardian to exercise
powers of the | 8 | | principal under an agency that survives disability, the
| 9 | | guardian will have no power, duty or liability with respect to | 10 | | any property
subject to the agency. This subsection (e) applies | 11 | | to all agencies,
whenever and wherever executed.
| 12 | | (f) Upon petition by any interested person (including the | 13 | | standby or
short-term guardian), with such notice to interested | 14 | | persons as the court
directs and a finding by the court that it | 15 | | is in the best interest of the
disabled person, the court may | 16 | | terminate or limit the authority of a standby or
short-term | 17 | | guardian or may enter such other orders as the court deems | 18 | | necessary
to provide for the best interest of the disabled | 19 | | person. The petition for
termination or limitation of the | 20 | | authority of a standby or short-term guardian
may, but need | 21 | | not, be combined with a petition to have another guardian
| 22 | | appointed for the disabled person.
| 23 | | (Source: P.A. 95-331, eff. 8-21-07.)".
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