(755 ILCS 5/Art. I heading) ARTICLE I.
GENERAL PROVISIONS
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(755 ILCS 5/1-1) (from Ch. 110 1/2, par. 1-1)
Sec. 1-1.
Title.) This Act may be cited as the Probate Act of 1975.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2) (from Ch. 110 1/2, par. 1-2)
Sec. 1-2.
Definitions.
As used in this Act, unless the context requires
otherwise, the terms defined and the words construed in the following Sections
have the meanings ascribed to them in those Sections.
(Source: P.A. 88-202; 88-529.)
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(755 ILCS 5/1-2.01) (from Ch. 110 1/2, par. 1-2.01)
Sec. 1-2.01.
"Administrator" includes administrator de bonis non and
administrator with the will annexed.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2.02) (from Ch. 110 1/2, par. 1-2.02)
Sec. 1-2.02.
"Administrator with the will annexed" includes administrator
de bonis non with the will annexed.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2.03) (from Ch. 110 1/2, par. 1-2.03)
Sec. 1-2.03.
"Authenticated copy" means (1) a certified copy if the office
in which the record of the original is kept is in this State or (2) a copy
exemplified in
pursuance of the law of Congress in relation to records in foreign states if the office
in which the record of the original is kept is not in this State.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2.04) (from Ch. 110 1/2, par. 1-2.04)
Sec. 1-2.04.
"Bequeath" means to dispose of real or personal property
by will and includes devise.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2.05) (from Ch. 110 1/2, par. 1-2.05)
Sec. 1-2.05.
"Claim" includes any cause of action.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2.06) (from Ch. 110 1/2, par. 1-2.06)
Sec. 1-2.06.
"Dependent" means a person who is unable to maintain himself
and is likely to become a public charge.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2.07) (from Ch. 110 1/2, par. 1-2.07)
Sec. 1-2.07.
"Encumbrance" includes mortgage, real estate tax or special
assessment, deed of trust, vendor's lien, security agreement and other lien.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-2.08) (from Ch. 110 1/2, par. 1-2.08)
Sec. 1-2.08.
"Guardian" includes a representative of a minor and a representative
of a person under legal disability.
(Source: P.A. 83-706.)
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(755 ILCS 5/1-2.09) (from Ch. 110 1/2, par. 1-2.09)
Sec. 1-2.09.
"Independent administration" means administration of a decedent's
estate pursuant to Article XXVIII.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.10) (from Ch. 110 1/2, par. 1-2.10)
Sec. 1-2.10.
"Independent representative" means an executor or administrator
acting pursuant to Article XXVIII.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.11) (from Ch. 110 1/2, par. 1-2.11)
Sec. 1-2.11.
"Interested person" in relation to any particular action,
power or proceeding under this Act means one who has or represents a financial
interest, property right or fiduciary status at the time of reference which
may be affected by the action, power or proceeding involved, including without
limitation an heir, legatee, creditor, person entitled to a spouse's or child's
award and the representative. Whenever any provision of this Act requires
notice or accounting to or action by an interested person, including
without limitation Sections 24-2 and 28-11 of this Act, and a trustee
of a trust is an interested person, no notice or accounting to or action
by a beneficiary of the trust in his capacity as beneficiary shall be required.
When a ward would be an interested person but a personal fiduciary is then
acting for him pursuant to Section 28-3, the personal fiduciary is the
interested person instead of the ward, but any notice required to be given
to the ward under this Act shall be given to both the personal fiduciary
and the ward. This definition also applies to the following terms:
"interested party", "person (or party) interested" and "person (or party)
in interest".
(Source: P.A. 85-994.)
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(755 ILCS 5/1-2.12) (from Ch. 110 1/2, par. 1-2.12)
Sec. 1-2.12.
"Legacy" means a testamentary disposition of real or personal
property and includes devise and bequest. "Legatee" includes devisee.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.13) (from Ch. 110 1/2, par. 1-2.13)
Sec. 1-2.13.
"Mortgage" includes trust deed in the nature of a mortgage.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.14) (from Ch. 110 1/2, par. 1-2.14)
Sec. 1-2.14.
"Personal fiduciary" means one acting on behalf of a ward
pursuant to Section 28-3 during independent administration.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.15) (from Ch. 110 1/2, par. 1-2.15)
Sec. 1-2.15.
"Representative" includes executor, administrator,
administrator to collect, standby guardian, guardian and temporary guardian.
(Source: P.A. 88-529.)
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(755 ILCS 5/1-2.16) (from Ch. 110 1/2, par. 1-2.16)
Sec. 1-2.16.
"Supervised administration" means administration of a decedent's
estate pursuant to the provisions of this Act other than Article XXVIII.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.17) (from Ch. 110 1/2, par. 1-2.17)
Sec. 1-2.17. "Ward" includes a minor or a person with a disability.(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/1-2.18) (from Ch. 110 1/2, par. 1-2.18)
Sec. 1-2.18. "Will" includes electronic will, certified paper copy of an electronic will, testament and codicil.(Source: P.A. 102-167, eff. 7-26-21.)
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(755 ILCS 5/1-2.19) (from Ch. 110 1/2, par. 1-2.19)
Sec. 1-2.19.
Words importing the masculine, feminine or neuter gender include
each of the other genders where applicable.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.20) (from Ch. 110 1/2, par. 1-2.20)
Sec. 1-2.20.
Words importing the singular number include the plural and
words importing the plural number include the singular.
(Source: P.A. 81-213.)
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(755 ILCS 5/1-2.21) (from Ch. 110 1/2, par. 1-2.21)
Sec. 1-2.21.
Words referring to the property or estate of a person under
the age of 18 years exclude "custodial property" as defined in the Illinois
Uniform Transfers to Minors Act.
(Source: P.A. 84-915.)
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(755 ILCS 5/1-2.22) (from Ch. 110 1/2, par. 1-2.22)
Sec. 1-2.22.
In any proceeding under this Act the words "executor", "administrator",
"guardian" and "testator" may be used without regard to the sex of the person.
(Source: P.A. 81-795.)
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(755 ILCS 5/1-2.23)
Sec. 1-2.23. "Standby guardian" means: (i) a guardian of the person or
estate, or both, of a minor, as appointed by the court under Section 11-5.3, to
become effective at a later date under Section 11-13.1 or (ii) a guardian of
the person or estate, or both, of a person with a disability, as appointed by the court
under Section 11a-3.1, to become effective at a later date under Section
11a-18.2.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/1-2.24)
Sec. 1-2.24.
"Short-term guardian" means a guardian of the person of a minor
as appointed by a parent of the minor under Section 11-5.4 or a guardian of
the person of a person with a disability as appointed by the guardian of the person with a disability under Section 11a-3.2.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/1-2.25) Sec. 1-2.25.
Where this Act requires information to be "written" or "in writing", or provides for certain consequences if it is not, an electronic record under the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act satisfies the provisions of this Act.(Source: P.A. 102-167, eff. 7-26-21; 103-301, eff. 1-1-24.) |
(755 ILCS 5/1-2.26) Sec. 1-2.26. "In the presence of" and any variation thereof includes: (1) being in the same physical location as another | ||
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(2) being in a different physical location from | ||
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(Source: P.A. 102-167, eff. 7-26-21.) |
(755 ILCS 5/1-3) (from Ch. 110 1/2, par. 1-3)
Sec. 1-3.
Corporation as representative.) Any corporation qualified to
accept and execute trusts in this State is qualified to act as representative of the
estate of a decedent or ward.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-4) (from Ch. 110 1/2, par. 1-4)
Sec. 1-4.
Pleadings.) On the court's own motion or on motion of any interested
person, before or during any hearing, any person who desires to oppose the
entry of an order
or judgment shall file, as directed by the court, a pleading disclosing
the grounds of opposition.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-5) (from Ch. 110 1/2, par. 1-5)
Sec. 1-5. Petition under oath.) Every petition under this Act, except a
petition under Section 8-1 or Section 8-2, shall be under oath or
affirmation. If a statement is known to petitioner only upon information
and belief, or is unknown to him, the petition shall so state. Whenever any
instrument is required to be verified or under oath, a statement that is
made under the penalties of perjury has the same effect as if the
instrument were verified or made under oath. A fraudulent statement so
made is perjury, as defined in Section 32-2 of the Criminal Code
of 2012.
(Source: P.A. 97-1150, eff. 1-25-13.)
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(755 ILCS 5/1-6) (from Ch. 110 1/2, par. 1-6)
Sec. 1-6.
Civil Practice Law applies.) The Civil Practice Law and
all existing and future amendments and modifications thereof and the
Supreme Court Rules now or hereafter adopted in relation to that
Law shall apply to all proceedings
under this Act, except as otherwise provided in this Act. Paragraph (g) of
Section 2-1301 of the Code of Civil Procedure, and all existing and future
amendments and modifications of paragraph (g) do not apply to proceedings
under Sections 20-3, 20-4 and 22-4 of this Act for the sale or mortgage
of real estate or an interest therein.
(Source: P.A. 82-783.)
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(755 ILCS 5/1-7) (from Ch. 110 1/2, par. 1-7)
Sec. 1-7.
Mispleading - representative not liable beyond assets.) No representative
or his surety is chargeable beyond the assets of the estate administered
by reason of any
omission or mistake in pleading or any false pleading of the representative.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-8) (from Ch. 110 1/2, par. 1-8)
Sec. 1-8.
Penalty for false affidavit.) A person who makes a false affidavit under
this Act is guilty of perjury and upon conviction shall be punished as provided by the
statutes of this State in relation to the crime of perjury.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-9) (from Ch. 110 1/2, par. 1-9)
Sec. 1-9.
Act to be liberally construed.) This Act and the rules now
or hereafter applicable
thereto shall be liberally construed to the end that controversies and the rights of the
parties may be speedily and finally determined and the rule that statutes in derogation
of the common law shall be strictly construed does not apply.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-10) (from Ch. 110 1/2, par. 1-10)
Sec. 1-10.
Partial invalidity.) The invalidity of any provision of this
Act does not affect the remainder of this Act.
(Source: P.A. 79-328.)
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(755 ILCS 5/1-11) (from Ch. 110 1/2, par. 1-11)
Sec. 1-11.
Nonresident representative.
If a representative is or
becomes a nonresident of this State, the representative shall file
in the court in which
the estate is pending a designation of a resident agent to accept service
of process, notice or demand required or permitted by law to be served upon
the representative. If the representative fails to do so, the clerk
of the court is
constituted as agent of the representative upon whom the process, notice or
demand may be served. If service is made upon the clerk of the court, the
clerk of the court
shall mail a copy of the process, notice or demand to the representative at
the representative's last known post office address and to the
representative's attorney of record.
(Source: P.A. 90-430, eff. 8-16-97; 90-472, eff. 8-17-97.)
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(755 ILCS 5/Art. II heading) ARTICLE II
DESCENT AND DISTRIBUTION
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(755 ILCS 5/2-1) (from Ch. 110 1/2, par. 2-1)
Sec. 2-1. Rules of descent and distribution. The intestate real and
personal estate of a resident decedent and the intestate real estate in
this State of a nonresident decedent, after all just claims against his
estate are fully paid, descends and shall be distributed as follows:
(a) If there is a surviving spouse and also a descendant of the
decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to
the decedent's descendants per stirpes.
(b) If there is no surviving spouse but a descendant of the
decedent: the entire estate to the decedent's descendants per stirpes.
(c) If there is a surviving spouse but no descendant of the
decedent: the entire estate to the surviving spouse.
(d) If there is no surviving spouse or descendant but a parent,
brother, sister or descendant of a brother or sister of the decedent:
the entire estate to the parents, brothers and sisters of the decedent
in equal parts, allowing to the surviving parent if one is dead a double
portion and to the descendants of a deceased brother or sister per
stirpes the portion which the deceased brother or sister would have
taken if living.
(e) If there is no surviving spouse, descendant, parent, brother,
sister or descendant of a brother or sister of the decedent but a
grandparent or descendant of a grandparent of the decedent: (1) 1/2 of
the entire estate to the decedent's maternal grandparents in equal parts
or to the survivor of them, or if there is none surviving, to their
descendants per stirpes, and (2) 1/2 of the entire estate to the
decedent's paternal grandparents in equal parts or to the survivor of
them, or if there is none surviving, to their descendants per stirpes.
If there is no surviving paternal grandparent or descendant of a
paternal grandparent, but a maternal grandparent or descendant of a
maternal grandparent of the decedent: the entire estate to the
decedent's maternal grandparents in equal parts or to the survivor of
them, or if there is none surviving, to their descendants per stirpes.
If there is no surviving maternal grandparent or descendant of a
maternal grandparent, but a paternal grandparent or descendant of a
paternal grandparent of the decedent: the entire estate to the
decedent's paternal grandparents in equal parts or to the survivor of
them, or if there is none surviving, to their descendants per stirpes.
(f) If there is no surviving spouse, descendant, parent, brother,
sister, descendant of a brother or sister or grandparent or descendant
of a grandparent of the decedent: (1) 1/2 of the entire estate to the
decedent's maternal great-grandparents in equal parts or to the survivor
of them, or if there is none surviving, to their descendants per
stirpes, and (2) 1/2 of the entire estate to the decedent's paternal
great-grandparents in equal parts or to the survivor of them, or if
there is none surviving, to their descendants per stirpes. If there is
no surviving paternal great-grandparent or descendant of a paternal
great-grandparent, but a maternal great-grandparent or descendant of a
maternal great-grandparent of the decedent: the entire estate to the
decedent's maternal great-grandparents in equal parts or to the survivor
of them, or if there is none surviving, to their descendants per
stirpes. If there is no surviving maternal great-grandparent or
descendant of a maternal great-grandparent, but a paternal
great-grandparent or descendant of a paternal great-grandparent of the
decedent: the entire estate to the decedent's paternal
great-grandparents in equal parts or to the survivor of them, or if
there is none surviving, to their descendants per stirpes.
(g) If there is no surviving spouse, descendant, parent, brother,
sister, descendant of a brother or sister, grandparent, descendant of a
grandparent, great-grandparent or descendant of a great-grandparent of
the decedent: the entire estate in equal parts to the nearest kindred of
the decedent in equal degree (computing by the rules of the civil law)
and without representation.
(h) If there is no surviving spouse and no known kindred of the
decedent: the real estate escheats to the county in which it is
located; the personal estate physically located within this State and
the personal estate physically located or held outside this State which
is the subject of ancillary administration of an estate being
administered within this State escheats to the county of which the
decedent was a resident, or, if the decedent was not a resident of this
State, to the county in which it is located; all other personal property
of the decedent of every class and character, wherever situate, or the
proceeds thereof, shall escheat to this State and be delivered to the
State Treasurer
pursuant to the Revised Uniform Unclaimed Property Act.
In no case is there any distinction between the kindred of the whole
and the half blood.
(Source: P.A. 100-22, eff. 1-1-18.)
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(755 ILCS 5/2-2) (from Ch. 110 1/2, par. 2-2)
Sec. 2-2. Children born out of wedlock. The intestate real and personal estate of
a resident decedent who was a child born out of wedlock at the time of death and the
intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his estate are
fully paid, descends and shall be distributed as provided in Section 2-1,
subject to Section 2-6.5 of this Act, if both parents are eligible parents. As
used in this Section, "eligible parent" means a parent of the decedent who,
during the decedent's lifetime, acknowledged the decedent as the parent's
child, established a parental relationship with the decedent, and supported the
decedent as the parent's child. "Eligible parents" who are in arrears of in
excess of one year's child support obligations shall not receive any property
benefit or other interest of the decedent unless and until a court of competent
jurisdiction makes a determination as to the effect on the deceased of the
arrearage and allows a reduced benefit. In no event shall the reduction of
the benefit or other interest be less than the amount of child support owed for
the support of the decedent at the time of death. The court's considerations
shall include but are not limited to the considerations in subsections (1)
through (3) of Section 2-6.5 of this Act.
If neither parent is an eligible parent, the intestate real
and personal estate of a resident decedent who was a child born out of wedlock at the time of
death and the intestate real estate in this State of a nonresident decedent who
was a child born out of wedlock at the time of death, after all just claims against his or her
estate are fully paid, descends and shall be distributed as provided in
Section 2-1, but the parents of the decedent shall be treated as having
predeceased the decedent.
If only one parent is an eligible parent, the intestate real and personal
estate of a resident decedent who was a child born out of wedlock at the time of death and the
intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his or her
estate are fully paid, subject to Section 2-6.5 of this Act, descends and shall
be distributed as follows:
(a) If there is a surviving spouse and also a descendant of the
decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to
the decedent's descendants per stirpes.
(b) If there is no surviving spouse but a descendant of the
decedent: the entire estate to the decedent's descendants per stirpes.
(c) If there is a surviving spouse but no descendant of the
decedent: the entire estate to the surviving spouse.
(d) If there is no surviving spouse or descendant but the eligible parent or
a descendant of the eligible parent of the decedent: the entire estate to the
eligible parent and the eligible parent's descendants, allowing 1/2 to the
eligible parent and 1/2 to the eligible parent's descendants per stirpes.
(e) If there is no surviving spouse, descendant, eligible parent, or
descendant of the eligible parent of the decedent, but a grandparent on the
eligible parent's side of the family or descendant of such grandparent of the
decedent: the entire estate to the decedent's grandparents on the eligible
parent's side of the family in equal parts, or to the survivor of them, or if
there is none surviving, to their descendants per stirpes.
(f) If there is no surviving spouse, descendant, eligible parent, descendant
of the eligible parent, grandparent on the eligible parent's side of the
family, or descendant of such grandparent of the decedent: the entire estate
to the decedent's great-grandparents on the eligible parent's side of the
family in equal parts or to the survivor of them, or if there is none
surviving, to their descendants per stirpes.
(g) If there is no surviving spouse, descendant, eligible parent, descendant
of the eligible parent, grandparent on the
eligible parent's side of the family, descendant of such
grandparent, great-grandparent on the eligible parent's side of
the family, or descendant of such great-grandparent of the decedent: the
entire estate in equal parts to the nearest kindred of the eligible parent of
the decedent in equal degree (computing by the rules of the civil law) and
without representation.
(h) If there is no surviving spouse, descendant, or eligible parent of the
decedent and no known kindred of the eligible parent of the decedent: the real
estate escheats to
the county in which it is located; the personal estate physically
located within this State and the personal estate physically located or
held outside this State which is the subject of ancillary administration
within this State escheats to the county of which the decedent was a
resident or, if the decedent was not a resident of this State, to the
county in which it is located; all other personal property of the
decedent of every class and character, wherever situate, or the proceeds
thereof, shall escheat to this State and be delivered to the State
Treasurer of this State pursuant to the Revised Uniform Unclaimed Property Act.
For purposes of inheritance, the changes made by this amendatory Act of
1998 apply to all decedents who die on or after the effective date of this
amendatory Act of 1998. For the purpose of determining the property rights of
any person under any instrument, the changes made by this amendatory Act of
1998 apply to all instruments executed on or after the effective date of this
amendatory Act of 1998.
A child born out of wedlock is heir of his mother and of any maternal
ancestor and of any person from whom his mother might have inherited, if
living; and the descendants of a person who was a child born out of wedlock shall represent
such person and take by descent any estate which the parent would have
taken, if living. If a decedent has acknowledged paternity of a child born out of wedlock or if during his lifetime or after his death a
decedent has been adjudged to be the father of a child born out of wedlock,
that person is heir of his father and of any paternal ancestor and of
any person from whom his father might have inherited, if living; and
the descendants of a person who was a child born out of wedlock shall represent that person
and take by descent any estate which the parent would have taken, if
living. If during his lifetime the decedent was adjudged to be the
father of a child born out of wedlock by a court of competent jurisdiction,
an authenticated copy of the judgment is sufficient proof of the
paternity; but in all other cases paternity must be proved by clear and
convincing evidence. A person who was a child born out of wedlock whose parents
intermarry and who is acknowledged by the father as the father's child
is a lawful child of the father.
After a child born out of wedlock is adopted, that person's relationship to his or
her adopting and natural parents shall be governed by Section 2-4 of this
Act. For purposes of inheritance, the changes made by this amendatory Act of
1997 apply to all decedents who die on or after January 1, 1998. For the
purpose of determining the property rights of any person under any instrument,
the changes made by this amendatory Act of 1997 apply to all instruments
executed on or after January 1, 1998.
(Source: P.A. 100-22, eff. 1-1-18.)
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(755 ILCS 5/2-3) (from Ch. 110 1/2, par. 2-3)
Sec. 2-3. Posthumous child. (a) For purposes of the descent and distribution of property passing by intestate succession under this Act, a posthumous child of a decedent shall
receive the same share of an estate as if the child had been born in wedlock during the
decedent's lifetime, but only if: (1) the posthumous child is in utero at the decedent's death; or (2) in the case of a posthumous child not in utero at the decedent's death, the conditions of subsection (b) are met.
(b) A posthumous child of a decedent not in utero at the decedent's death meets the requirements of this subsection (b) only if all of the following conditions apply: (1) The child is born of the decedent's gametes, | ||
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(2) The child is born within 36 months of the death | ||
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(3) The decedent had provided consent in writing to | ||
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(4) The administrator of the estate receives a signed | ||
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(i) the decedent's gametes exist; (ii) the person has the intent to use the gametes | ||
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(iii) the person has the intent to raise any such | ||
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The requirements of this subsection impose no duty on the administrator of an estate to provide notice of death to any person and apply without regard to when any person receives notice of the decedent's death. (c) For the purpose of determining the property rights of any person under any instrument, a posthumous child of a decedent who is in utero at the decedent's death shall be treated as a child of the decedent unless the intent to exclude the child is demonstrated by the express terms of the instrument by clear and convincing evidence. (d) For the purpose of determining the property rights of any person under any instrument, a posthumous child of a decedent not in utero at the decedent's death shall not be treated as a child of the decedent unless one of the following conditions applies: (1) the intent to include the child is demonstrated | ||
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(2) the fiduciary or other holder of the property | ||
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(e) For purposes of subsection (d), the use in the instrument of terms such as "child", "children", "grandchild", "grandchildren", "descendants", and "issue", whether or not modified by phrases such as "biological", "genetic", "born to", or "of the body" shall not alone constitute clear and convincing evidence of an intent to include posthumous children not in utero at the decedent's death. An intent to exclude posthumous children not in utero at the decedent's death shall be presumed with respect to any instrument that does not address specifically how and when the class of posthumous children are to be determined with respect to each division or distribution provided for under the instrument as well as whose posthumous children are to be included and when a posthumous child has to be born to be considered a beneficiary with respect to a particular division or distribution. (f) No fiduciary or other person shall be liable to any other person for any action taken or benefit received prior to the effective date of this amendatory Act of the 100th General Assembly that was based on a good faith interpretation of Illinois law regarding the right of posthumous children to take property by intestate succession or under an instrument. If after the effective date of this amendatory Act of the 100th General Assembly the administrator of an estate does not receive the written notice required by subsection (b), the administrator of the estate shall not be liable to any posthumous child not in utero at the decedent's death or any person claiming for or through the child. (g) The changes made to subsection (a) of this Section by this amendatory Act of the 100th General Assembly apply to the estates of all decedents who die on or after January 1, 2018. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of the 100th General Assembly apply to all instruments executed before, on, or after the effective date of this amendatory Act of the 100th General Assembly.(Source: P.A. 99-85, eff. 1-1-16; 100-85, eff. 1-1-18.)
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(755 ILCS 5/2-4) (from Ch. 110 1/2, par. 2-4)
Sec. 2-4.
Adopted child.
(a) An adopted child is a descendant of the adopting parent for purposes
of inheritance from
the adopting parent and from the lineal and collateral kindred of the
adopting parent and for the purpose of determining the property rights of any
person under any instrument, unless the adopted child is adopted after
attaining the age
of 18 years and
the child never resided with the adopting parent before attaining the age of 18
years, in which case the adopted child is a child of the adopting parent but is
not a descendant of the adopting parent for the purposes of inheriting from the
lineal or collateral kindred of the adopting parent. An adopted child and the
descendants of the child who is related to a decedent through more than one
line of relationship shall be entitled only to the share based on the
relationship which entitles the child or descendant to the largest share. The
share to which the child or descendant is not entitled shall be distributed in
the same manner as if the child or descendant never existed.
For purposes of inheritance, the changes made by this amendatory Act of 1997
apply to all decedents who die on or after January 1, 1998. For the purpose of
determining the property rights of any person under any instrument, the changes
made by this amendatory Act of 1997 apply to all instruments executed on or
after January 1, 1998.
(b) An adopting parent and the lineal and collateral kindred of the adopting
parent shall
inherit property from an adopted child to the exclusion of the natural parent
and the
lineal and collateral kindred of the natural parent in the same manner as
though the adopted
child were a natural child of the adopting parent, except that the natural
parent and the
lineal or collateral kindred of the natural parent shall take from the child
and the child's
kindred the property that the child has taken from or through the natural
parent or the lineal
or collateral kindred of the natural parent by gift, by will or under intestate
laws.
(c) For purposes of inheritance from the child and his or her kindred
(1) the person who at
the time of the adoption is the spouse of an adopting parent is an adopting
parent
and (2) a child is adopted when the child has been or is declared by any court
to have been adopted or has been or is declared or assumed to be the adopted
child of the testator or grantor in any instrument bequeathing or giving
property to the child.
(d) For purposes of inheritance from or through a natural parent and for
determining the property rights of any person under any instrument, an adopted
child
is not a child of a natural parent, nor is the child a descendant of a natural
parent or of any lineal or collateral kindred of a natural parent, unless one
or more of the following conditions apply:
(1) The child is adopted by a descendant or a spouse | ||
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(2) A natural parent of the adopted child died before | ||
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(3) The contrary intent is demonstrated by the terms | ||
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An heir of an adopted child who, by reason of this subsection (d), is not a
child
of a natural parent is also not an heir of that natural parent or of the lineal
or collateral kindred of that natural parent. A fiduciary who has actual
knowledge that a person has been adopted, but who has no actual knowledge that
any of paragraphs (1), (2), or (3) of this subsection apply to the adoption,
shall have no liability for any action taken or omitted in good faith on the
assumption that the person is not a descendant or heir of the natural parent.
The preceding
sentence is intended to affect only the liability of the fiduciary and shall
not affect the property rights of any person.
For purposes of inheritance, the changes made by this amendatory Act of 1997
apply to all decedents who die on or after January 1, 1998. For the purpose of
determining the property rights of any person under any instrument, the changes
made by this amendatory Act of 1997 apply to all instruments executed on or
after January 1, 1998.
(e) For the purpose of determining the property rights of any person under
any instrument executed on or after September 1, 1955, an adopted child is
deemed
a child born to the adopting parent unless the contrary
intent is demonstrated by the terms
of the instrument by clear and convincing evidence.
(f) After September 30, 1989, a child adopted at any time before or
after that date is deemed a child born to the adopting parent for the
purpose of determining the property rights of any person under any
instrument executed before September 1, 1955, unless one or more of the
following conditions applies:
(1) The intent to exclude such child is demonstrated | ||
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(2) An adopting parent of an adopted child, in the | ||
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(i) "Acted" means that the adopting parent made | ||
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(ii) Any action which substantially benefits the | ||
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(g) No fiduciary or other person shall be liable to any other person for
any action taken or benefit received prior to October 1, 1989, under any
instrument executed before September 1, 1955,
that was based on a good faith interpretation of
Illinois law regarding the right of adopted children to take property under
such an instrument.
(h) No fiduciary under any instrument executed before September 1, 1955,
shall have any obligation to determine whether any adopted child has become
a taker under such instrument due to the application of subsection (f)
unless such fiduciary has received, on or before the "notice date", as
defined herein, written evidence that such adopted child has become a
taker of property. A fiduciary who has received such written evidence
shall determine in good faith whether or not any of the conditions
specified in subsection (f) exists but shall have no obligation to inquire
further into whether such adopted child is a taker of property pursuant to
such subsection. Such written evidence shall include a sworn statement by
the adopted child or his or her parent or guardian that such child is
adopted and to the best of the knowledge and
belief of such adopted child or such parent or guardian, none of the
conditions specified in such subsection exists. The "notice date" shall be
the later of February 1, 1990, or the expiration of 90 days after the
date on which the adopted child becomes a taker of property pursuant to the
terms of any instrument executed before September 1, 1955.
(i) A fiduciary shall advise all persons known to him or her to be
subject to these provisions of the existence of the right to commence a
judicial proceeding to prevent the adopted child from being a taker of
property under the instrument.
(Source: P.A. 90-237, eff. 1-1-98.)
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(755 ILCS 5/2-5) (from Ch. 110 1/2, par. 2-5)
Sec. 2-5.
Advancements.) (a) In the division and distribution of the estate
of an intestate decedent, real or personal estate given by him in his lifetime as an
advancement to a descendant is considered as part of the decedent's estate
to be applied on the share of the person to whom the
advancement was made or, if he died before the decedent, on the share of
the descendants of the
person to whom the advancement was made. A gift is not an advancement unless
so expressed in
writing by the decedent or unless so acknowledged in writing by the person to whom the
gift was made.
(b) If the value of the advancement is expressed in the writing made by
the decedent or, if
not so expressed, in the written acknowledgment by the person to whom the
advancement was made,
it shall be considered as of that value; otherwise it shall be considered
as of the value when given.
The person to whom the advancement was made shall not be required to refund
any part of it, although
it exceeds his share in the entire estate.
(Source: P.A. 79-328.)
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(755 ILCS 5/2-6) (from Ch. 110 1/2, par. 2-6)
Sec. 2-6.
Person causing death.
A person who intentionally and
unjustifiably causes the death of another shall not receive any property,
benefit, or other interest by reason of the death, whether as heir,
legatee, beneficiary, joint tenant, survivor, appointee or in any other
capacity and whether the property, benefit, or other interest passes
pursuant to any form of title registration, testamentary or nontestamentary
instrument, intestacy, renunciation, or any other circumstance. The
property, benefit, or other interest shall pass as if the person causing
the death died before the decedent, provided that with respect to joint
tenancy property the interest possessed prior to the death by the person
causing the death shall not be diminished by the application of this
Section. A determination under this Section may be made by any court of
competent jurisdiction separate and apart from any criminal proceeding
arising from the death, provided that no such civil proceeding shall
proceed to trial nor shall the person be required to submit to discovery in
such civil proceeding until such time as any criminal proceeding
has been finally determined by the trial court or, in the event no criminal
charge has been brought, prior to one year after the date of death.
A person convicted of first degree murder or second degree murder
of the decedent is conclusively presumed to have caused the death
intentionally and unjustifiably for purposes of this Section.
The holder of any property subject to the provisions of this Section
shall not be liable for distributing or releasing said property to the person
causing the death if such distribution or release occurs prior to a
determination made under this Section.
If the holder of any property subject to the provisions of this Section
knows or has reason to know that a potential beneficiary caused the death
of a person within the scope of this Section, the holder shall fully
cooperate with law enforcement authorities and judicial officers in
connection with any investigation of such death.
(Source: P.A. 86-749.)
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(755 ILCS 5/2-6.2)
Sec. 2-6.2. Financial exploitation, abuse, or neglect of an elderly person
or a person with a disability. (a) In this Section:
"Abuse" means any offense described in Section 12-1, 12-2, 12-3, 12-3.05, or 12-21 or subsection (b) of Section 12-4.4a of the Criminal Code of
1961 or the Criminal Code of 2012.
"Elderly person" has the meaning provided in subsection (e) of Section 12-4.4a of the Criminal Code of 2012. "Financial exploitation" means any offense or act described or defined in Section 16-1.3 or 17-56 of the
Criminal Code of 1961 or the Criminal Code of 2012, and, in the context of civil proceedings, the taking, use, or other misappropriation of the assets or resources of an elderly person or a person with a disability contrary to law, including, but not limited to, misappropriation of assets or resources by undue influence, breach of a fiduciary relationship, fraud, deception, extortion, and conversion.
"Neglect" means any offense described in Section 12-19 or subsection (a) of Section 12-4.4a of the Criminal Code
of 1961 or the Criminal Code of 2012.
(b) Persons convicted of financial exploitation,
abuse, or neglect of an elderly person or a person with a disability or persons who have been found by a preponderance of the evidence to be civilly liable for financial exploitation shall not
receive
any property, benefit, or other interest by reason of the
death of that elderly person or person with a disability, whether as heir,
legatee,
beneficiary, survivor, appointee, claimant under Section 18-1.1, or in any other capacity
and whether the property, benefit, or other interest passes
pursuant to any form of title registration, testamentary or
nontestamentary instrument, intestacy, renunciation, or any
other circumstance. Except as provided in subsection (f) of this Section, the property, benefit, or other
interest shall pass as if the person convicted of the
financial exploitation, abuse, or neglect or person found civilly liable for financial exploitation died before the
decedent, provided that with respect to joint tenancy
property the interest possessed prior to the death by the
person convicted of the financial exploitation, abuse, or
neglect shall not be
diminished by the application of this Section. Notwithstanding the
foregoing, a person convicted of financial exploitation, abuse, or neglect of
an elderly person or a person with a disability or a person who has been found by a preponderance of the evidence to be civilly liable for financial exploitation shall be entitled to receive
property, a benefit, or an
interest in any capacity and under any circumstances described in this
subsection (b) if it is demonstrated by clear and convincing evidence that the
victim of that offense knew of the conviction or finding of civil liability and subsequent to the
conviction or finding of civil liability expressed or ratified his or her intent to transfer the property,
benefit, or interest to the person convicted of financial exploitation, abuse,
or
neglect of an elderly person or a person with a disability or the person found by a preponderance of the evidence to be civilly liable for financial exploitation in any manner
contemplated by this subsection
(b).
(c)(1) The holder of any property subject to the
provisions of this Section shall not be liable for
distributing or releasing the property to the person
convicted of financial exploitation, abuse, or neglect of
an elderly person or a person with a disability or the person who has been found by a preponderance of the evidence to be civilly liable for financial exploitation if the distribution or release
occurs
prior to the conviction or finding of civil liability.
(2) If the holder is a financial institution, trust company, trustee, or
similar entity or person, the holder shall not be liable for any distribution
or
release of the property, benefit, or other interest to the person convicted of
a
violation of Section 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a, of the Criminal Code of 1961 or the Criminal Code of 2012 or the person who has been found by a preponderance of the evidence to be civilly liable for financial exploitation
unless the holder knowingly distributes or releases the property, benefit, or
other interest to the person so convicted or found civilly liable after first having received actual
written notice of the conviction in sufficient time to act upon the notice.
(d) If the holder of any property subject to the
provisions of this Section knows that a potential beneficiary has been
convicted of financial
exploitation, abuse, or neglect of an elderly person or a person with a
disability or has been found by a preponderance of the evidence to be civilly liable for financial exploitation within
the scope of this Section, the holder shall fully cooperate
with law enforcement authorities and judicial officers in
connection with any investigation of the financial
exploitation, abuse, or neglect. If the holder is a person or entity that is
subject to regulation by a regulatory agency pursuant to the laws of this or
any other state or pursuant to the laws of the United States, including but not
limited to the business of a financial institution, corporate fiduciary, or
insurance company, then such person or entity shall not be deemed to be in
violation of this Section to the extent that privacy laws and regulations
applicable to such person or entity prevent it from voluntarily providing law
enforcement authorities or judicial officers with information.
(e) A civil action against a person for financial exploitation may be brought by an interested person, pursuant to this Section, after the death of the victim or during the lifetime of the victim if the victim is adjudicated a person with a disability. A guardian is under no duty to bring a civil action under this subsection during the ward's lifetime, but may do so if the guardian believes it is in the best interests of the ward. (f) The court may, in its discretion, consider such facts and circumstances as it deems appropriate to allow the person found civilly liable for financial exploitation to receive a reduction in interest or benefit rather than no interest or benefit as stated under subsection (b) of this Section. (Source: P.A. 101-182, eff. 1-1-20.) |
(755 ILCS 5/2-6.5)
Sec. 2-6.5.
Parent neglecting child.
A parent who, for a period of one
year
or more immediately before the death of the parent's minor or dependent child,
has willfully neglected or failed to perform any duty of support owed to the
minor or dependent child or who, for a period of one year or more, has
willfully
deserted the minor or dependent child
shall not receive
any property,
benefit, or other interest by reason of the death, whether as heir,
legatee, beneficiary, survivor, appointee, or in any other
capacity (other than joint tenant) and whether the property, benefit, or other
interest passes
pursuant to any form of title registration (other than joint tenancy),
testamentary or nontestamentary instrument, intestacy, renunciation, or any
other circumstance, unless and until a court of competent jurisdiction makes
a determination as to the effect on the deceased minor or dependent child of
the parent's neglect, failure to perform any duty of support owed to the minor
or dependent child, or willful desertion of the minor or dependent child and
allows a
reduced benefit or other interest that the parent was to receive by virtue of
the death of the minor or dependent child, as the interests of justice require.
In no event shall the reduction of the benefit or other interest be less than
the amount of child support owed to the minor or dependent child at the time of
the death of the minor or dependent child. The court's considerations in
determining the amount to be deducted from the parent's award shall include,
but not be limited to:
(1) the deceased minor's or dependent child's loss of | ||
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(2) the effect of the parent's willful neglect, | ||
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(3) the ability of the parent to avoid the willful | ||
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A determination under this Section may be made by any court of
competent jurisdiction separate and apart from any civil or criminal proceeding
arising from the duty of support owed to or desertion of the minor or dependent
child.
A petition for adjudication of an allegation under this Section must be
filed within 6 months after the date of the death of the minor or dependent
child.
The holder of any property subject to the provisions of this Section
shall not be liable for distributing, releasing, or transferring the property
to the person
who neglected, failed to perform any duty of support owed to the minor or
dependent child, or willfully deserted the minor or dependent child if the
distribution or
release occurs before a
determination has been made under this Section or if the holder of the property
has not
received written notification of the determination before the distribution or
release, accompanied by a certified copy of the determination.
If the property in question is an interest in real property, that interest
may be distributed, released, or transferred at any time by a holder of
property, the parent, or any other person or entity before a determination is
made under this Section and a certified copy of that determination is recorded
in the office of the recorder in the county in which the real property is
located. The document to be recorded must include the title of the action or
proceeding, the parties to the action or proceeding, the court in
which the action or proceeding was brought, the date of the determination, and
the legal description, permanent index number, and common address of the real
property. If a certified copy of the determination is not recorded within 6
months of the date of the determination, any subsequent recording of a
certified copy of the determination does not act to prevent the distribution,
release, or transfer of real property to any person or entity, including the
neglectful parent.
(Source: P.A. 88-631, eff. 9-9-94.)
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(755 ILCS 5/2-6.6)
Sec. 2-6.6. Person convicted of or found civilly liable for certain offenses against the elderly or
a person with a disability. (a) A person who is convicted of a violation of Section 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a, of the Criminal Code of 1961 or the Criminal Code of 2012 or a person who has been found by a preponderance of the evidence to be civilly liable for financial exploitation, as defined in subsection (a) of Section 2-6.2 of this Act, may not receive any property, benefit, or
other interest by reason of the death of the victim of that offense, whether as
heir, legatee, beneficiary, joint tenant, tenant by the entirety, survivor,
appointee, or in any other capacity and whether the property, benefit, or other
interest passes pursuant to any form of title registration, testamentary or
nontestamentary instrument, intestacy, renunciation, or any other circumstance. Except as provided in subsection (f) of this Section, the property, benefit, or other interest shall pass as if the person convicted
of a violation of Section 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a, of the Criminal Code of 1961 or the Criminal Code of 2012 or the person found by a preponderance of the evidence to be civilly liable for financial exploitation, as defined in subsection (a) of Section 2-6.2 of this Act,
died before the decedent; provided that with respect to joint tenancy property
or property held in tenancy by the entirety, the interest possessed prior to
the death by the person convicted or found civilly liable may not
be diminished by the application of this Section. Notwithstanding the
foregoing, a person convicted of a violation of Section 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a,
of the Criminal Code of 1961 or the Criminal Code of 2012 or a person who has been found by a preponderance of the evidence to be civilly liable for financial exploitation, as defined in subsection (a) of Section 2-6.2 of this Act, shall be entitled to receive property, a
benefit, or an interest in any capacity and under any circumstances described
in this Section if it is demonstrated by clear and convincing evidence that the
victim of that offense knew of the conviction or finding of civil liability and subsequent to the
conviction or finding of civil liability expressed or ratified his or her intent to transfer the property,
benefit, or interest to the person convicted of a violation of Section 12-19,
12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a, of the Criminal Code of 1961 or the Criminal Code of 2012 or the person found by a preponderance of the evidence to be civilly liable for financial exploitation, as defined in subsection (a) of Section 2-6.2 of this Act, in any manner contemplated
by this Section.
(b) The holder of any property subject to the provisions of this Section
is not liable for distributing or releasing the property to the person
convicted of violating Section 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a, of the Criminal
Code of 1961 or the Criminal Code of 2012 or to the person found by a preponderance of the evidence to be civilly liable for financial exploitation as defined in subsection (a) of Section 2-6.2 of this Act.
(c) If the holder is a financial institution, trust company, trustee, or
similar entity or person, the holder shall not be liable for any distribution
or
release of the property, benefit, or other interest to the person convicted of
a violation of Section 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a, of the Criminal Code of 1961 or the Criminal Code of 2012 or person found by a preponderance of the evidence to be civilly liable for financial exploitation, as defined in subsection (a) of Section 2-6.2 of this Act,
unless the holder knowingly distributes or releases the property, benefit, or
other interest to the person so convicted or found civilly liable after first having received actual
written notice of the conviction or finding of civil liability in sufficient time to act upon the notice.
(d) The Illinois State Police shall have access to State of Illinois
databases containing information that may help in the identification or
location of persons convicted of or found civilly liable for the offenses enumerated in this Section.
Interagency agreements shall be implemented, consistent with security and
procedures established by the State agency and consistent with the laws
governing the confidentiality of the information in the databases. Information
shall be used only for administration of this Section.
(e) A civil action against a person for financial exploitation, as defined in subsection (a) of Section 2-6.2 of this Act, may be brought by an interested person, pursuant to this Section, after the death of the victim or during the lifetime of the victim if the victim is adjudicated a person with a disability. A guardian is under no duty to bring a civil action under this subsection during the ward's lifetime, but may do so if the guardian believes it is in the best interests of the ward. (f) The court may, in its discretion, consider such facts and circumstances as it deems appropriate to allow the person convicted or found civilly liable for financial exploitation, as defined in subsection (a) of Section 2-6.2 of this Act, to receive a reduction in interest or benefit rather than no interest or benefit as stated under subsection (a) of this Section. (Source: P.A. 102-538, eff. 8-20-21.) |
(755 ILCS 5/2-7) (from Ch. 110 1/2, par. 2-7)
Sec. 2-7. Disclaimer. (a) Right to Disclaim Interest in Property. A person
to whom any property or interest therein passes, by whatever means,
may disclaim the property or interest in whole or in part by delivering
or filing a written disclaimer as hereinafter provided. A disclaimer may
be of a fractional share or undivided interest, a specifically identifiable
asset, portion or amount, any limited interest or estate or any property
or interest derived through right of survivorship. A powerholder, as that term is defined in Section 103 of the Illinois Trust Code, with respect to property shall be deemed to
be a holder of an interest in such property.
The representative of a decedent or ward may disclaim on behalf of the
decedent or ward with leave of court. The court may approve the disclaimer
by a representative of a decedent if it finds that the disclaimer benefits
the estate as a whole and those interested in the estate generally even
if the disclaimer alters the distribution of the property, part or interest
disclaimed. The court may approve the disclaimer by a representative of
a ward if it finds that it benefits those interested in the estate generally
and is not materially detrimental to the interests of the ward. A disclaimer
by a representative of a decedent or ward may be made without leave of court
if a will or other instrument signed by the decedent or ward designating
the representative specifically authorizes the representative to disclaim
without court approval.
The right to disclaim granted by this Section exists irrespective of any
limitation on the interest of the disclaimant in the nature of a spendthrift
provision or similar restriction.
(b) Form of Disclaimer. The disclaimer shall (1) describe the property
or part or interest disclaimed, (2) be signed by the disclaimant or his
representative and (3) declare the disclaimer and the extent thereof.
(c) Delivery of Disclaimer. The disclaimer shall be delivered to the
transferor or donor or his representative, or to the trustee or other person
who has legal title to the property, part or interest disclaimed, or, if
none of the foregoing is readily determinable, shall be either delivered
to a person having possession of the property, part or interest or who is
entitled thereto by reason of the disclaimer, or filed or recorded as hereinafter
provided. In the case of an interest passing by reason of the death of
any person, an executed counterpart of the disclaimer may be filed with
the clerk of the circuit court in the county in which the estate of the
decedent is administered, or, if administration has not been commenced,
in which it could be commenced. If an interest in real property is disclaimed,
an executed counterpart of the disclaimer may be recorded in the office
of the recorder in the county in which the real estate lies,
or, if the title to the real estate is registered under "An Act concerning
land titles", approved May 1, 1897, as amended, may
be filed in the office of the registrar of titles of such county.
(d) Effect of Disclaimer. Unless expressly provided otherwise in an instrument
transferring the property or creating the interest disclaimed, the property,
part or interest disclaimed shall descend or be distributed (1) if a present
interest (a) in the case of a transfer by reason of the death of any person,
as if the disclaimant had predeceased the decedent; (b) in the case of a
transfer by revocable instrument or contract, as if the disclaimant had predeceased
the date the maker no longer has the power to transfer to himself or another
the entire legal and equitable ownership of the property or interest; or
(c) in the case of any other inter vivos transfer, as if the disclaimant
had predeceased the date of the transfer; and (2) if a future interest,
as if the disclaimant had predeceased the event that determines that the
taker of the property or interest has become finally ascertained and his
interest has become indefeasibly fixed both in quality and quantity; and
in each case the disclaimer shall relate back to such date for all purposes.
A disclaimer of property or an interest in property shall not preclude
any disclaimant from receiving the same property in another capacity or
from receiving other interests in the property to which the disclaimer relates.
Unless expressly provided otherwise in an instrument transferring the property
or creating the interest disclaimed, a future interest limited to take effect
at or after the termination of the estate or interest disclaimed shall accelerate
and take effect in possession and enjoyment to the same extent as if the
disclaimant had died before the date to which the disclaimer relates back.
A disclaimer made pursuant to this Section shall be irrevocable and shall
be binding upon the disclaimant and all persons claiming by, through or
under the disclaimant.
(e) Waiver and Bar. The right to disclaim property or a part thereof or
an interest therein shall be barred by (1) a judicial sale of the property,
part or interest before the disclaimer is effected; (2) an assignment, conveyance,
encumbrance, pledge, sale or other transfer of the property, part or interest,
or a contract therefor, by the disclaimant or his representative; (3) a
written waiver of the right to disclaim; or (4) an acceptance of the property,
part or interest by the disclaimant or his representative. Any person may
presume, in the absence of actual knowledge to the contrary, that a disclaimer
delivered or filed as provided in this Section is a valid disclaimer that
is not barred by the preceding provisions of this paragraph.
A written waiver of the right to disclaim may be made by any person or
his representative and an executed counterpart of a waiver of the right
to disclaim may be recorded or filed, all in the same manner as provided
in this Section with respect to a disclaimer.
In every case, acceptance must be affirmatively proved in order to constitute
a bar to a disclaimer. An acceptance of property or an interest in property
shall include the taking of possession, the acceptance of delivery or the
receipt of benefits of the property or interest; except that (1) in the
case of an interest in joint tenancy with right of survivorship such acceptance
shall extend only to the fractional share of such property or interest determined
by dividing the number one by the number of joint tenants, and (2) in the
case of a ward, such acceptance shall extend only to property actually received
by or on behalf of the ward or his representative during his minority or
incapacity. The mere lapse of time or creation of an interest, in joint
tenancy with right of survivorship or otherwise, with or without knowledge
of the interest on the part of the disclaimant, shall not constitute acceptance
for purposes of this Section.
This Section does not abridge the right of any person to assign, convey,
release, renounce or disclaim any property or interest therein arising
under any other statute or that arose under prior law.
Any interest in real or personal property that exists on or after the
effective date of this Section may be disclaimed after that date in the
manner provided herein, but no interest that has arisen prior to that date
in any person other than the disclaimant shall be destroyed or diminished
by any action of the disclaimant taken pursuant to this Section.
(Source: P.A. 100-1044, eff. 1-1-19; 101-48, eff. 1-1-20.)
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(755 ILCS 5/2-8) (from Ch. 110 1/2, par. 2-8)
Sec. 2-8.
Renunciation of will by spouse.)
(a) If a will is renounced by the testator's surviving spouse, whether or
not the will contains any provision for the benefit of the surviving spouse,
the surviving spouse is entitled to the following share of the testator's
estate after payment of all just claims: 1/3 of the entire estate if the
testator leaves a descendant or 1/2 of the entire estate if the testator leaves
no descendant.
(b) In order to renounce a will, the testator's surviving spouse must file
in the court in which the will was admitted to probate a written instrument
signed by the surviving spouse and declaring the renunciation. The time of
filing the instrument is: (1) within 7 months after the admission of the will
to probate or (2) within such further time as may be allowed by the court if,
within 7 months after the admission of the will to probate or before the
expiration of any extended period, the surviving spouse files a petition
therefor setting forth that litigation is pending that affects the share of the
surviving spouse in the estate. The filing of the instrument is a complete bar
to any claim of the surviving spouse under the will.
(c) If a will is renounced in the manner provided by this Section, any
future interest which is to take effect in possession or enjoyment at or after
the termination of an estate or other interest given by the will to the
surviving spouse takes effect as though the surviving spouse had predeceased
the testator, unless the will expressly provides that in case of renunciation
the future interest shall not be accelerated.
(d) If a surviving spouse of the testator renounces the will and the
legacies to other persons are thereby diminished or increased in value, the
court, upon settlement of the estate, shall abate from or add to the legacies
in such a manner as to apportion the loss or advantage among the legatees in
proportion to the amount and value of their legacies.
(Source: P.A. 79-328.)
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(755 ILCS 5/2-9) (from Ch. 110 1/2, par. 2-9)
Sec. 2-9.
Dower and Curtesy.) There is no estate of dower or curtesy.
All inchoate rights to elect
to take dower existing on January 1, 1972, are extinguished.
(Source: P.A. 80-808.)
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(755 ILCS 5/Art. III heading) ARTICLE III
SIMULTANEOUS DEATHS
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(755 ILCS 5/3-1) (from Ch. 110 1/2, par. 3-1)
Sec. 3-1.
No sufficient evidence of survivorship.) If the title to property
or its devolution depends upon priority of death and there is no sufficient
evidence that the persons have died otherwise than simultaneously and there is
no other provision in the will, trust agreement, deed, contract of insurance or
other governing instrument for distribution of the property different from the
provisions of this Section:
(a) The property of each person shall be disposed of as if he had survived.
(b) If 2 or more beneficiaries are designated to take successively by reason
of survivorship under another person's disposition of property, the property
so disposed of shall be divided into as many equal portions as there are
successive beneficiaries and these portions shall be distributed respectively
to those who would have taken if each designated beneficiary had survived.
(c) If 2 persons hold title to property as joint tenants, the property shall
be distributed 1/2 as if one had survived and 1/2 as if the other had survived.
If there are more than 2 joint tenants and all of them have so died, the
property thus distributed shall be in the proportion that one bears to the
whole number of joint tenants.
(d) If the insured and the beneficiary of a policy of life or accident
insurance have so died, the proceeds of the policy shall be distributed as if
the insured had survived the beneficiary.
(Source: P.A. 79-328.)
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(755 ILCS 5/3-2) (from Ch. 110 1/2, par. 3-2)
Sec. 3-2.
Uniformity of interpretation.) This Article shall be so construed
and interpreted as to effectuate its general purpose to make uniform the
law in those states which enact similar statutes.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. IV heading) ARTICLE IV
WILLS
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(755 ILCS 5/4-1) (from Ch. 110 1/2, par. 4-1)
Sec. 4-1. Capacity of testator. (a) Every person who has attained the age
of 18 years and is of sound
mind and memory has power to bequeath by will the real and personal estate which he
has at the time of his death.
(b) Except as stated herein, there is a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled under Article XIa of this Act and either (1) a plenary guardian has been appointed for the testator under subsection (c) of Section 11a-12 of this Act or (2) a limited guardian has been appointed for the testator under subsection (b) of Section 11a-12 of this Act and the court has found that the testator lacks testamentary capacity. The rebuttable presumption is overcome by clear and convincing evidence that the testator had the capacity to execute the will or codicil at the time the will or codicil was
executed. The rebuttable presumption does not apply if the will or codicil was completed in
compliance with subsection (d-5) of Section 11a-18 of this Act. This subsection (b) applies only to wills or codicils executed or modified after the effective date of this amendatory Act of the 99th General
Assembly.(Source: P.A. 99-302, eff. 1-1-16.)
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(755 ILCS 5/4-2) (from Ch. 110 1/2, par. 4-2)
Sec. 4-2.
(Repealed).
(Source: P.A. 89-364, eff. 8-18-95. Repealed by P.A. 100-1044, eff. 1-1-19.)
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(755 ILCS 5/4-3) (from Ch. 110 1/2, par. 4-3)
Sec. 4-3.
Signing and attestation.
(a) Every will shall be in writing, signed by the testator or by some
person in his presence and by his direction and attested in the presence of
the testator by 2 or more credible witnesses.
(b) A will that qualifies as an international will under the Uniform
International Wills Act is considered to meet all the requirements of
subsection (a).
(Source: P.A. 86-1291.)
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(755 ILCS 5/4-4) (from Ch. 110 1/2, par. 4-4)
Sec. 4-4.
Testamentary additions to trusts.) By a will signed and
attested as provided in this Act a testator may bequeath or
appoint real and personal estate to a trustee of a trust evidenced by an
instrument, including the will of another who predeceases the
testator, which is in existence when the testator's will is
made and which is identified in
the testator's will, even though the trust is subject to amendment,
modification,
revocation or termination. Unless the testator's will provides otherwise, the
estate so bequeathed or appointed shall be governed by the terms
and provisions of
the instrument creating the trust, including any amendments or
modifications in writing made at any time before or after the execution
of the testator's will and before, or after if the testator's
will so directs, the death of the testator.
The existence, size or character of the corpus of the trust is immaterial
to the validity of the bequest. If the trust is terminated prior
to the testator's death by revocation of the trust or by revocation
of that portion of the instrument creating the trust, the bequest
or appointment shall take effect according to the terms and provisions
of the instrument creating the trust as they existed at the time of
the termination, unless the testator's will otherwise provides.
(Source: P.A. 80-759.)
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(755 ILCS 5/4-5) (from Ch. 110 1/2, par. 4-5)
Sec. 4-5.
Insurance and death benefits payable to testamentary
trustee.) A person having the right to designate a
beneficiary of benefits payable under any insurance, annuity or endowment
contract (including any agreement issued or entered into by an insurance company
in connection therewith, supplemental thereto or in settlement thereof),
or the right to designate the beneficiary of benefits payable upon or
after the death of a person under any pension, retirement, death
benefit, deferred compensation, employment, agency, stock bonus or
profit sharing contract, plan, system or trust, may designate as a beneficiary
a trustee named or to be named in his will whether
or not the will is in existence at the time of the designation. The
benefits received by the trustee shall be held and disposed of as
part of the trust estate under the terms of the will. If no qualified
trustee makes claim to the benefits within 18 months after the death of
the decedent or if
within that period it is established that no trustee can qualify to
receive the benefits, payment shall be made to the representative of the estate
of the person making the designation, unless it is otherwise provided by
a beneficiary designation or by the policy or other controlling
agreement. The benefits received by the trustee shall not be subject to
claims or other charges enforceable against the estate or to estate or inheritance
taxes (including interest and penalties thereon) to any greater
extent than if the benefits were payable to a named beneficiary other than the estate
of the person making the designation, and in the case of benefits
which otherwise qualify for exclusion from the gross estate for federal
estate tax purposes, such benefits shall not be used by or for the
benefit of the estate of the decedent.
(Source: P.A. 79-328; 79-711; 79-1454.)
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(755 ILCS 5/4-6) (from Ch. 110 1/2, par. 4-6)
Sec. 4-6.
Beneficiary or creditor as witness.) (a) If any beneficial legacy
or interest is given in a will to a person attesting its execution or to his spouse,
the legacy or interest is void as to that beneficiary and all persons claiming
under him,
unless the will is otherwise duly attested by a sufficient number of witnesses
as provided by
this Article exclusive of that person and he may be compelled to testify as if the
legacy or interest had not been given, but the beneficiary is entitled to
receive so much of the legacy or interest given to him by the will as does
not exceed the value of the share of the testator's estate to which he would be
entitled were the will not established.
(b) No individual or corporation is disqualified to act or to receive compensation for
acting in any fiduciary capacity with respect to a will of a decedent by reason of
the fact that any employee or partner of such individual or any employee or shareholder
of such corporation attests the execution of the will or testifies thereto. No attorney
or partnership of attorneys is disqualified to act or to receive compensation for acting
as attorney for any fiduciary by reason of the fact that the attorney or any employee or
partner of the attorney or partnership attests the execution of the will
or testifies thereto.
(c) If real or personal estate is charged with any debt by a will and the creditor
whose debt is so secured attests the execution of the will, the creditor may testify
to its execution.
(Source: P.A. 79-328.)
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(755 ILCS 5/4-7) (from Ch. 110 1/2, par. 4-7)
Sec. 4-7.
Revocation - revival.) (a) A will may be revoked only (1)
by burning, cancelling, tearing or obliterating it by the testator
himself or by some person in his presence and by his direction and
consent, (2) by the execution of a later will declaring the revocation,
(3) by a later will to the extent that it is inconsistent with the prior
will or (4) by the execution of an instrument declaring the revocation
and signed and attested in the manner prescribed by this Article for the
signing and attestation of a will.
(b) No will or any part thereof is revoked by any change in the
circumstances, condition or marital status of the testator, except that
dissolution of marriage or declaration of invalidity
of the marriage of the testator revokes every
legacy or interest or power of appointment given to or nomination to
fiduciary office of the testator's former spouse in a will executed
before the entry of the judgment of dissolution of marriage or declaration
of invalidity of marriage and the will
takes effect in the same manner as if the former spouse had died before
the testator.
(c) A will which is totally revoked in any manner is not revived
other than by its re-execution or by an instrument declaring the revival
and signed and attested in the manner prescribed by this Article for the
signing and attestation of a will. If a will is partially revoked by an
instrument which is itself revoked, the revoked part of the will is
revived and takes effect as if there had been no revocation.
(Source: P.A. 81-230.)
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(755 ILCS 5/4-8) (from Ch. 110 1/2, par. 4-8)
Sec. 4-8.
Contract for sale.) If after making his will the testator makes a contract
for the sale or transfer of real or personal property specifically bequeathed therein
and the whole or any part of the contract remains executory at his death,
the disposition
of the property by the contract does not revoke the bequest but the property
passes to the
legatee subject to the contract.
(Source: P.A. 79-328.)
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(755 ILCS 5/4-9) (from Ch. 110 1/2, par. 4-9)
Sec. 4-9.
Effect of alteration.
An addition to a will or an alteration,
substitution, interlineation or deletion of any part of a will which does
not constitute a revocation of a will is of no effect, unless made by the
testator or by some person in his presence and by his direction and consent
and unless the
will is thereafter signed and attested in the manner prescribed by this
Article for the execution of a will.
(Source: P.A. 81-1509.)
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(755 ILCS 5/4-10) (from Ch. 110 1/2, par. 4-10)
Sec. 4-10.
Effect of child born after will.) Unless provision is made in the will for
a child of the testator born after the will is executed or unless it appears by the
will that it was the intention of the testator to disinherit the child,
the child is entitled
to receive the portion of the estate to which he would be entitled if the testator
died intestate and all legacies shall abate proportionately therefor.
(Source: P.A. 79-328.)
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(755 ILCS 5/4-11) (from Ch. 110 1/2, par. 4-11)
Sec. 4-11.
Legacy to a deceased legatee.) Unless the testator expressly provides
otherwise in his will, (a) if a legacy of a present or future interest is
to a descendant
of the testator who dies before or after the testator, the descendants of
the legatee living when
the legacy is to take effect in possession or enjoyment, take per stirpes
the estate so bequeathed;
(b) if a legacy of a present or future interest is to a class and any member
of the class dies before
or after the testator, the members of the class living when the legacy is
to take effect in possession
or enjoyment take the share or shares which the deceased member would have taken if he
were then living, except that if the deceased member of the class is a descendant of the
testator, the descendants of the deceased member then living shall take per stirpes the
share or shares which the deceased member would have taken if he were then
living; and (c)
except as above provided in (a) and (b), if a legacy lapses by reason of the
death of the legatee before the testator, the estate so bequeathed shall be included
in and pass as part of the residue under the will, and if the legacy is
or becomes part of
the residue, the estate so bequeathed shall pass to and be taken by the
legatees or those
remaining, if any, of the residue in proportions and upon estates corresponding to their
respective interests in the residue. The provisions of (a) and (b) do not apply
to a future interest which is or becomes indefeasibly vested at the testator's
death or at any time thereafter before it takes effect in possession or enjoyment.
(Source: P.A. 79-328.)
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(755 ILCS 5/4-13) (from Ch. 110 1/2, par. 4-13)
Sec. 4-13.
Effect of order admitting will to probate.) Every will when admitted
to probate as provided by this Act is effective to transfer the real and
personal estate of
the testator bequeathed in that will.
(Source: P.A. 79-328.)
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(755 ILCS 5/4-14) (from Ch. 110 1/2, par. 4-14)
Sec. 4-14.
Intestate estate of testator.) The real and personal estate of a testator
that is not bequeathed by his will descends and shall be distributed as intestate
estate.
(Source: P.A. 79-328.)
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(755 ILCS 5/4-15) (from Ch. 110 1/2, par. 4-15)
Sec. 4-15.
Debtor as executor.) The appointment of the debtor of the testator
as executor
of his will does not extinguish any debt due from the executor to the testator, unless
the testator in the will expressly declares his intention to extinguish
the debt and unless
the estate of the testator without collection of the debt due from the executor
is sufficient
to discharge all claims against the testator's estate.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. IVa heading) ARTICLE IVaPRESUMPTIVELY VOID TRANSFERS
(Source: P.A. 98-1093, eff. 1-1-15.) |
(755 ILCS 5/4a-5) Sec. 4a-5. Definitions. As used in this Article: (1) "Caregiver" means a person who voluntarily, or in exchange for compensation, has assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living. "Caregiver" includes a caregiver's spouse, cohabitant, child, or employee. "Caregiver" does not include a family member of the person receiving assistance. (2) "Family member" means a spouse, civil union partner, child, grandchild, sibling, aunt, uncle, niece, nephew, first cousin, or parent of the person receiving assistance. (3) "Transfer instrument" means the legal document intended to effectuate a transfer effective on or after the transferor's death and includes, without limitation, a will, trust, transfer on death instrument, deed, form designated as payable on death, contract, or other beneficiary designation form. (4) "Transferee" means a legatee, a beneficiary of a trust, a grantee of a deed, or any other person designated in a transfer instrument to receive a nonprobate transfer. (5) "Transferor" means a testator, settlor, grantor of a deed, or a decedent whose interest is transferred pursuant to a nonprobate transfer.
(Source: P.A. 100-1059, eff. 8-24-18.) |
(755 ILCS 5/4a-10) Sec. 4a-10. Presumption of void transfer. (a) In any civil action in which a transfer instrument is being challenged, there is a rebuttable presumption, except as provided in Section 4a-15, that the transfer instrument is void if the transferee is a caregiver and the fair market value of the transferred property exceeds $20,000. (b) Unless a shorter limitations period is required by Section 8-1 or 18-12 of this Act, any action under this Section shall be filed within 2 years of the date of death of the transferor.
(c) If the property in question is an interest in real property, a bona fide purchaser or mortgagee for value shall take the subject property free and clear of the action challenging the transfer instrument if the transfer to the bona fide purchaser or mortgagee for value occurs prior to the recordation of a lis pendens for an action under this Section. (d) If the holder of property subject to this Article is a financial institution, trust company, trustee, or similar entity or person, including a subsidiary or affiliate thereof, it is not liable for distributing or releasing the property to the transferee, if: (1) in the case of funds in an account maintained by | ||
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(2) in the case of any other property, the | ||
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(e) The administrative freeze of an account described in paragraph (1) of subsection (d) shall be implemented promptly. In determining whether the administrative freeze was implemented promptly, the court shall take into consideration the manner, time, and place of service and other factors reasonably affecting the financial institution's ability to promptly freeze the account. (Source: P.A. 100-1059, eff. 8-24-18.) |
(755 ILCS 5/4a-15) Sec. 4a-15. Exceptions. The rebuttable presumption established by Section 4a-10 can be overcome if the transferee proves to the court either: (1) by a preponderance of evidence that the | ||
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(2) by clear and convincing evidence that the | ||
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(Source: P.A. 98-1093, eff. 1-1-15.) |
(755 ILCS 5/4a-20) Sec. 4a-20. Common law. The provisions of this Article do not abrogate or limit any principle or rule of the common law, unless the common law principle or rule is inconsistent with the provisions of this Article. Notwithstanding the limited definition of "caregiver" in Section 4a-5 of this Article, nothing in this Article precludes any action against any individual under the common law, or any other applicable law, regardless of the individual's familial relationship with the person receiving assistance. The provisions of this Article are in addition to any other principle or rule of law.
(Source: P.A. 98-1093, eff. 1-1-15.) |
(755 ILCS 5/4a-25) Sec. 4a-25. Attorney's fees and costs. If the caregiver attempts and fails to overcome the presumption under Section 4a-15, the caregiver shall bear the costs of the proceedings, including, without limitation, reasonable attorney's fees.
(Source: P.A. 98-1093, eff. 1-1-15.) |
(755 ILCS 5/4a-30) Sec. 4a-30. No independent duty. The rebuttable presumption set forth in Section 4a-10 of this Article applies only in a civil action in which a transfer instrument is being challenged, and does not create or impose an independent duty on any financial institution, trust company, trustee, or similar entity or person related to any transfer instrument.
(Source: P.A. 98-1093, eff. 1-1-15.) |
(755 ILCS 5/4a-35) Sec. 4a-35. Applicability. This Article applies only to transfer instruments executed after the effective date of this amendatory Act of the 98th General Assembly.
(Source: P.A. 98-1093, eff. 1-1-15.) |
(755 ILCS 5/Art. V heading) ARTICLE V
PLACE OF PROBATE OF WILL OR OF ADMINISTRATION
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(755 ILCS 5/5-1) (from Ch. 110 1/2, par. 5-1)
Sec. 5-1.
Place of probate of will or of administration of estate.) When
the will of a testator is probated or when the estate of a decedent or
missing person is administered in this State, the probate or the
administration shall be in the court of the county determined as follows:
(a) In the county where he has a known place of residence;
(b) If he has no known place of residence in this State, in the county
in which the greater part of his real estate is located at the time of
his death; or
(c) If he has no known place of residence and no real estate in this
State, in the county where the greater part of his personal estate is
located at the time of his death.
(Source: P.A. 85-692.)
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(755 ILCS 5/5-2) (from Ch. 110 1/2, par. 5-2)
Sec. 5-2.
Situs of personal estate of nonresident decedent or missing person.)
For the purpose of granting administration of both testate and intestate
estates of nonresident
decedents or estates of nonresident missing persons, the situs of tangible personal
estate is where it is located and the situs of intangible personal estate is where the
instrument evidencing a share, interest, debt, obligation, stock or chose in action
is located or where the debtor resides if there is no instrument evidencing the share,
interest, debt, obligation, stock or chose in action in this State.
(Source: P.A. 79-328.)
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(755 ILCS 5/5-3) (from Ch. 110 1/2, par. 5-3)
Sec. 5-3.
Power to ascertain and declare heirship - evidence.)
(a) The court may ascertain and declare the heirship of any decedent to
be entered of record in the court at any time during the administration
of the estate without further notice or, if there is no grant of
administration, upon such notice and in such manner as the court
directs.
(b) The ascertainment of heirship may be made from (1) an affidavit
of any person stating the facts from which the heirship of the decedent
can be ascertained, which affidavit shall be signed and sworn to or
affirmed before any notary public or judge of any court of record in the
United States or any of its possessions or territories and certified by
the clerk thereof, or before any United States consul, vice-consul,
consular agent, secretary of legation or commissioned officer in active
service of the United States, within or without the United States, or
(2) from evidence either in narrative form or by questions and answers
which are reduced to writing and certified by the court declaring the
heirship. The seal of office of any notary public, United States consul,
vice-consul, consular agent or secretary of legation and the designation
of the name, rank and branch of service of any commissioned officer in
active service of the armed forces of the United States shall be
sufficient evidence of his identity and official character. The
affidavit or transcript of evidence shall be filed by the clerk of the
court declaring the heirship and remain as a part of the files in the
cause.
(c) An order of the court declaring heirship is prima facie evidence
of the heirship, but any other legal method of proving heirship may be
resorted to by any party interested therein in any place or court where
the question may arise.
(d) For purposes of this section the court may presume, in the absence
of any evidence to the contrary, that the decedent and any person through
whom heirship is traced was not the mother or father of any child born out
of wedlock and, if the decedent or the person was a male, that no child
born out of wedlock was filiated to or acknowledged or legitimated by the
decedent or the person.
(Source: P.A. 81-598.)
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(755 ILCS 5/Art. VI heading) ARTICLE VI
PROBATE OF WILLS AND ISSUANCE OF LETTERS OF OFFICE
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(755 ILCS 5/6-1) (from Ch. 110 1/2, par. 6-1)
Sec. 6-1.
Duty to file will - altering, destroying or secreting.)
(a) Immediately
upon the death of the testator any person who has the testator's will in his
possession
shall file it with the clerk of the court of the proper county and upon
failure or refusal
to do so, the court on its motion or on the petition of any interested person
may issue an
attachment and compel the production of the will, subject to the provisions of Section 5.15 of the Secretary of State Act.
(b) If any person wilfully alters or destroys a will without the direction
of the testator
or wilfully secretes it for the period of 30 days after the death of the
testator is known
to him, the person so offending, on conviction thereof, shall be sentenced as
in cases
of theft of property classified as a Class 3 felony by the law in effect at the
date of the offense. The 30-day period does not apply to the Secretary of State when acting pursuant to Section 5.15 of the Secretary of State Act.
(Source: P.A. 96-137, eff. 1-1-10.)
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(755 ILCS 5/6-2) (from Ch. 110 1/2, par. 6-2)
Sec. 6-2. Petition to admit will or to issue letters.)
Anyone
desiring to have a will admitted to probate must file a petition
therefor in the court of the proper county. The petition must state, if
known: (a) the name and place of residence of the testator at the time
of his death; (b) the date and place of death; (c) the date of the will
and the fact that petitioner believes the will to be the valid last will
of the testator; (d) the approximate value of the testator's real and
personal estate in this State; (e) the names and post office addresses
of all heirs and legatees of the testator and whether any of them is a
minor or a person with a disability; (f) the name and post office address of the
executor; and (g) unless supervised administration is requested, the
name and address of any personal
fiduciary acting or designated to act pursuant to Section 28-3. When
the will creates or adds to a trust and the petition states the name and
address of the trustee, the petition need not state the name and address
of any beneficiary of the trust who is not an heir or legatee. If
letters of administration with the will annexed are sought, the petition
must also state, if known: (a) the reason for the issuance of the
letters, (b) facts showing the right of the petitioner to act as, or to
nominate, the administrator with the will annexed, (c) the name and post
office address of the person nominated and of each person entitled
either to administer or to nominate a person to administer equally with
or in preference to the petitioner and (d) if the will has been
previously admitted to probate, the date of admission. If a petition for
letters of administration with the will annexed states that there are one
or more persons entitled either to administer or to nominate a person to
administer equally with or in preference to the petitioner, the petitioner
must mail a copy of the petition to each such person as provided in Section
9-5 and file proof of mailing with the clerk of the court.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-3) (from Ch. 110 1/2, par. 6-3)
Sec. 6-3.
Duty of executor to present will for probate.) (a) Within 30 days after
a person acquires knowledge that he is named as executor of the will of
a deceased person,
he shall either institute a proceeding to have the will admitted to probate in the
court of the proper county or declare his refusal to act as executor. If
he fails to do so, except
for good cause shown, the court on its motion or on the petition of any
interested person may deny
him the right to act as executor and letters of office may be issued by
the court as if the
person so named were disqualified to act as executor.
(b) When 30 days have elapsed since the death of the testator and no petition
has been filed to
admit his will to probate, the court may proceed to probate the will without
the filing of
a petition therefor, unless it appears to the court that probate thereof
is unnecessary and failure to
probate it will not prejudice the rights of any interested person. Such
notice of the hearing
on the admission of the will to probate shall be given to the persons in
interest as the court directs.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-4) (from Ch. 110 1/2, par. 6-4)
Sec. 6-4.
Admission of will to probate - testimony or affidavit of
witnesses.) (a) When each of 2 attesting witnesses to a will states
that (1) he was present and saw the testator or some person in his
presence and by his direction sign the will in the presence of the
witness or the testator acknowledged it to the witness as his act, (2)
the will was attested by the witness in the presence of the testator and
(3) he believed the testator to be of sound mind and memory at the time
of signing or acknowledging the will, the execution of the will is
sufficiently proved to admit it to probate, unless there is proof of
fraud, forgery, compulsion or other improper conduct which in the
opinion of the court is deemed sufficient to invalidate or destroy the
will. The proponent may also introduce any other evidence competent to
establish a will. If the proponent establishes the will by
sufficient competent evidence, it shall be admitted to probate, unless
there is proof of fraud, forgery, compulsion or other improper conduct
which in the opinion of the court is deemed sufficient to invalidate or
destroy the will.
(b) The statements of a witness to prove the will under subsection 6-4(a)
may be made by (1) testimony before the court, (2) an attestation clause
signed by the witness and forming a part of or attached to the will or (3)
an affidavit which is signed by the witness at or after the time of attestation
and which forms part of the will or is attached to the will or to an accurate
facsimile of the will.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-5) (from Ch. 110 1/2, par. 6-5)
Sec. 6-5. Deposition of witness. When a witness to a will or other party who shall testify to have a will admitted to probate resides outside
the county in which the will is offered for probate or is
unable to attend court and can be found and is mentally and physically capable
of testifying, the court, upon the petition of any person seeking probate
of the will and upon such notice of the petition to persons interested as
the court directs, may issue a commission with the will or a photographic
copy thereof attached. The commission shall be directed to any judge, notary
public, mayor or other chief magistrate of a city or United States consul,
vice-consul, consular agent, secretary of legation or commissioned officer
in active service of the armed forces of the United States and shall authorize
and require the authorized person to cause that witness or other party to come before the authorized person at such time and
place as the authorized person designates and to take the deposition of the witness or other party on oath
or affirmation and upon all such written interrogatories
and cross-interrogatories as may be enclosed with the commission. With
the least possible delay the person taking the deposition shall certify
it, the commission, and the interrogatories to the court from which the
commission issued. When the deposition of a witness or other party is so taken and returned
to the court, the testimony of the witness or other party has the same effect as if the witness or other party testified in the
court from which the commission issued. When the commission is issued to
the officer by official title only and not by name, the seal of the
office attached to the officer's certificate is sufficient evidence of the officer's identity
and official character.
(Source: P.A. 102-167, eff. 7-26-21.)
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(755 ILCS 5/6-6) (from Ch. 110 1/2, par. 6-6)
Sec. 6-6. Proof of handwriting of a deceased or inaccessible witness or a witness with a disability.
(a) If a witness to a will or other party who shall testify to have a will admitted (1) is dead, (2) is blind, (3) is mentally or
physically incapable of testifying, (4) cannot be found, (5) is in active
service of the armed forces of the United States or (6) is outside this
State, the court may admit proof of the handwriting of the witness or other party and such
other secondary evidence as is admissible in any court of record to establish
electronic records or written contracts and may admit the will to probate as though it had been
proved by the testimony of the witness or other party. On motion of any interested person
or on its own motion, the court may require that the deposition of any such
witness or other party, who can be found, is mentally and physically capable of testifying
and is not in the active service of the armed forces of the United States
outside of the continental United States, be taken as the best evidence thereof.
(b) As used in this Section, "continental United States" means the States
of the United States and the District of Columbia.
(Source: P.A. 102-167, eff. 7-26-21.)
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(755 ILCS 5/6-7) (from Ch. 110 1/2, par. 6-7)
Sec. 6-7.
Will to remain with clerk.) All original wills which are admitted
to probate shall remain in the custody of the clerk, unless otherwise ordered
by the court.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-8) (from Ch. 110 1/2, par. 6-8)
Sec. 6-8.
Issuance of letters testamentary.) When a will is admitted
to probate, letters testamentary shall be issued to the executor named
in the will if he qualifies and accepts the office, unless the issuance
of letters is excused.
(Source: P.A. 81-213; 81-788; 81-1509.)
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(755 ILCS 5/6-9) (from Ch. 110 1/2, par. 6-9)
Sec. 6-9.
Failure or refusal to qualify - death, resignation or revocation
of letters - non-designation.) Unless otherwise provided by the will, (a)
if one of several executors named in the will fails or refuses to qualify
and accept the office, letters testamentary shall be issued to the executor
who qualifies and accepts the office, (b) if one of several executors to
whom letters have been issued dies or resigns or his letters are revoked,
the remaining executor shall continue to administer the estate, and (c)
in either event the remaining executor has all powers vested in all the
executors named in the will. If no executor is named in the will or the
named executor fails or refuses to qualify and accept the office or, if
after letters are issued the sole executor or all the named executors die
or resign or their letters are revoked, letters of administration with the
will annexed shall be issued in accordance with the preferences
in Section 9-3 upon petition under Section 6-2 and notice as provided in Section 9-5.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-10) (from Ch. 110 1/2, par. 6-10)
Sec. 6-10. Notice - waiver.)
(a) Not more than 14 days after entry of an
order admitting or denying admission of a will to probate or appointing
a representative, the representative or, if none, the petitioner must
mail a copy of the petition to admit the will
or for letters and a copy of the order showing the date of entry to each
of the testator's heirs and legatees whose names and post office addresses
are stated in the petition. If the name or post office address of any heir
or legatee is not stated in the petition, the representative or, if none,
the petitioner must publish a notice once a week
for 3 successive weeks, the first publication to be not more than 14 days
after entry of the order, describing the order and the date of entry. The
notice shall be published in a newspaper published in the county where the
order was entered and may be combined with a notice under Section 18-3.
When the petition names a trustee of a trust, it is not necessary to publish
for or mail copies of the petition and order to any beneficiary of the trust
who is not an heir or legatee. The information mailed or published under
this Section must include an explanation, in form prescribed by rule of
the Supreme Court of this State, of the rights of heirs and legatees to
require formal proof of will under Section 6-21 and to contest the admission
or denial of admission of the will to probate under Section 8-1 or 8-2.
The petitioner or representative must file proof of mailing and publication,
if publication is required, with the clerk of the court.
(b) A copy of the petition and of the order need not be sent to and notice
need not be published for any person who is not designated in the petition
as a minor or person with a disability and who personally appeared before the court
at the hearing or who filed his waiver of notice.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-11) (from Ch. 110 1/2, par. 6-11)
Sec. 6-11.
Omitted or unnotified heir or legatee.) (a) If
it appears after entry of an order admitting or denying admission of a will
to probate that an heir or legatee was omitted from the petition to admit
the will to probate or, if included in the petition, that notice to him
was not mailed or published as provided in Section 6-10 or 6-20, whichever
is applicable, and that no waiver of notice was filed by the omitted or
unnotified heir or legatee, an amended petition shall be filed under Section
6-2 or 6-20 which shall include the omitted or unnotified heir or legatee.
(b) If the amended petition is filed under Section 6-2, a copy of the
amended petition and the order admitting or denying admission of the will
to probate or notice thereof shall be mailed to or published for the omitted
or unnotified person as provided in Section 6-10, in the same manner as
if the order were entered at the time the amended petition was filed. The
original order admitting or denying admission of the will to probate is
effective as to the omitted or unnotified person as of the date the amended
petition is filed and it is effective as to all other persons, including
creditors, as of the date of its entry.
(c) If the amended petition is filed under Section 6-20, notice of the
hearing on the amended petition shall be mailed or published, as provided
in Section 6-20, to or for the omitted or unnotified person and to all persons
included in any prior petition. In the absence of objections by the omitted
or unnotified person, evidence received at the hearing on the original petition
to admit the will to probate constitutes prima facie proof of the execution
of the will at the hearing on the amended petition. An order admitting
the will to probate on an amended petition filed under Section 6-20 is effective
as to the omitted or unnotified person as of the date of its entry, but
the original order admitting the will to probate is effective as to all
other persons, including creditors, as of the date of its entry.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-12) (from Ch. 110 1/2, par. 6-12)
Sec. 6-12. Appointment of guardian ad litem.)
When an heir or legatee
of a testator is a minor or person with a disability who is entitled to notice under
Section 6-10 at the time an order is entered admitting or denying
admission of a will to probate or who is entitled to notice under Section
6-20 or 6-21 of the hearing on the petition to admit the will, the court
may appoint a guardian ad litem to protect the interests of the ward with
respect to the admission or denial, or to represent the ward at the hearing,
if the court finds that (a) the interests of the ward are not adequately
represented by a personal fiduciary acting or designated to act pursuant
to Section 28-3 or by another party having a substantially identical interest
in the proceedings and the ward is not represented by a guardian of his
estate and (b) the appointment of
a guardian ad litem is necessary to protect the ward's interests.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-13) (from Ch. 110 1/2, par. 6-13)
Sec. 6-13. Who may act as executor. (a) A person who has attained
the age of 18 years, is a resident of the United States, is not of
unsound mind, is not an adjudged person with a disability as defined in this Act, is not currently incarcerated in State or federal prison,
and, except as provided in subsection (c), has not been convicted of a felony is qualified to act as executor.
(b) If a person named as executor in a will is not qualified to act
at the time of admission of the will to probate but thereafter becomes
qualified and files a petition for the issuance of letters, takes oath
and gives bond as executor, the court may issue letters testamentary to
him as co-executor with the executor who has qualified or if no executor
has qualified the court may issue letters testamentary to him and revoke
the letters of administration with the will annexed.
(c) A person who has been convicted of a felony is qualified to act as an executor if: (i) the testator names that person as an executor and expressly acknowledges in the will that the testator is aware that the person has been convicted of a felony prior to the execution of the will or codicil; (ii) the person is not prohibited by law, including Sections 2-6, 2-6.2, and 2-6.6, from receiving a share of the testator's estate; (iii) the person was not previously convicted of financial exploitation of an elderly person or a person with a disability, financial identity theft, or a similar crime in another state or in federal court; and (iv) the person is otherwise qualified to act as an executor under subsection (a). (d) The court may in its discretion require a nonresident executor to furnish
a bond in such amount and with such surety as the court determines
notwithstanding any contrary provision of the will.
(Source: P.A. 103-280, eff. 1-1-24.)
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(755 ILCS 5/6-14) (from Ch. 110 1/2, par. 6-14)
Sec. 6-14.
Power of executor before issuance of letters.) Before issuance of letters to
an executor his power extends to the carrying out of any gift of the decedent's
body or any part thereof, to the burial of the decedent, the payment of
necessary funeral
charges and the preservation of the estate; but if the will is not admitted to probate,
the executor is not liable as an executor of his own wrong, except for his refusal to
deliver the estate to the person authorized by law to receive it or for
waste or misapplication of the estate.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-15) (from Ch. 110 1/2, par. 6-15)
Sec. 6-15.
Executor to administer all estate of decedent.) The executor or
the administrator with the will annexed shall administer all the testate
and intestate estate
of the decedent.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-16) (from Ch. 110 1/2, par. 6-16)
Sec. 6-16.
Power of administrator with the will annexed.) Unless otherwise expressly
provided by the will, an administrator with the will annexed has all the
powers and duties of
the executor under the will, but this does not excuse the administrator
from giving security on his bond.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-17) (from Ch. 110 1/2, par. 6-17)
Sec. 6-17.
Witness to appear for probate - penalty.) It is the duty of a witness to
any will executed in this State to appear before the court at the hearing
on the admission of
the will to probate and testify concerning the execution and validity of
the will unless proof
of will is made by another method as provided in this Act. The court may
attach and punish by
fine and imprisonment, or either, any witness who, without a reasonable excuse, fails to
appear and testify when subpoenaed.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-18) (from Ch. 110 1/2, par. 6-18)
Sec. 6-18.
Will as evidence.) An authenticated copy of a domestic or foreign will and
of the order admitting it or denying it to probate are evidence in any court
in this State.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-19) (from Ch. 110 1/2, par. 6-19)
Sec. 6-19.
Judge as witness.) If a judge is a witness to a will which is required by
law to be proved before him, another judge shall be designated to take the
testimony of witnesses
to the will and to decide whether or not the will shall be admitted to probate.
The judge who
is the witness may proceed to administer the estate unless he is otherwise
precluded therefrom by this Act.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-20) (from Ch. 110 1/2, par. 6-20)
Sec. 6-20. Petition to admit will to probate on presumption of death
of testator - notice.) (a) Anyone desiring to have a will admitted to
probate on the presumption of death of the testator must file a petition
therefor in the court of the proper county. The petition must state, in
addition to the information required by Section 6-2 (other than clauses
(a) and (b)), the facts and circumstances raising the presumption, the
name and last known post office address of the testator and, if known,
the name and post office address of each person in possession or control
of any property of the testator.
(b) Not less than 30 days before the hearing on the petition the
petitioner must (1) mail a copy
of the petition to the testator
at his last known address, to each of the testator's heirs and legatees
whose names and post office addresses are stated in the petition and to
each person shown by the petition to be in possession or control of any
property of the testator, and (2) publish a notice of the hearing on the
petition once a week for 3 successive weeks, the first publication to be
not less than 30 days before the hearing. The notice must state the time
and place of the hearing, the name of the testator and, when known, the
names of the heirs and legatees. The petitioner shall endorse the time
and place of the hearing on each copy
of the petition mailed by him. When the petition names a trustee of a trust,
it is not necessary to mail a copy of the petition to any beneficiary of
the trust who is not an heir or legatee, or to include the name of such
beneficiary in the published notice. If any person objects to the
admission of the will to probate, the court may require that such notice
of the time and place of the hearing as it directs be given to any beneficiary
of the trust not previously notified. The petitioner must file proof
of mailing and proof of publication with the clerk of the court.
(c) A copy of the petition need not be sent to any person not
designated in the petition as a minor or person with a disability who personally
appears before the court at the hearing or who files his waiver of
notice.
(d) When a will is admitted to probate on presumption of the
testator's death, the notice provided for in Section 6-10 is not
required.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-21) (from Ch. 110 1/2, par. 6-21)
Sec. 6-21.
Formal proof of will.) If a will has been admitted to probate
before notice in accordance with Section 6-4, any person entitled to notice
under Section 6-10 may file a petition within 42 days after the effective
date of the original order admitting the will to probate to require proof
of the will pursuant to this Section. The court must set the matter for
hearing upon such notice to interested persons as the court directs. At the hearing
the proponent must establish the will by testimony of the witnesses as provided
in subsection 6-4 (b) (1) or Section 6-5 or other evidence as provided in
this Act, but not as provided by subsection 6-4 (b) (2) or subsection 6-4
(b) (3), as if the will had not originally been admitted to probate. If
the proponent establishes the will by sufficient competent evidence, the
original order admitting it to probate and the original order appointing
the representative shall be confirmed and are effective as to all persons,
including creditors, as of the dates of their entries, unless there is proof
of fraud, forgery, compulsion or other improper conduct, which in the opinion
of the court
is sufficient to invalidate or destroy the will. The time for filing a
petition to contest a will under Section 8-1 is not extended by the filing
of the petition under this Section if the order admitting the will to probate
is confirmed, but if that order is vacated, the time for filing the petition
under Section 8-2 runs from the date of vacation of the order admitting
the will to probate.
(Source: P.A. 81-213.)
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(755 ILCS 5/Art. VII heading) ARTICLE VII
PROBATE OF FOREIGN WILLS AND ESTATES OF NONRESIDENTS
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(755 ILCS 5/7-1) (from Ch. 110 1/2, par. 7-1)
Sec. 7-1.
Foreign will admitted to probate.) A will signed by the testator when proved
as provided in this Article may be admitted to probate in this State when
(a) the will has
been admitted to probate outside of this State or (b) the will was executed outside
of this State in accordance with the law of this State, of the place where executed or
of the testator's domicile at the time of its execution.
(Source: P.A. 79-328.)
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(755 ILCS 5/7-2) (from Ch. 110 1/2, par. 7-2)
Sec. 7-2.
Procedure for probate of foreign will.) The provisions of this Act concerning
the procedure for the admission to probate of a domestic will govern the procedure for
the admission to probate of a foreign will sought to be admitted to probate as provided
by this Article, except for the manner of proof.
(Source: P.A. 79-328.)
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(755 ILCS 5/7-3) (from Ch. 110 1/2, par. 7-3)
Sec. 7-3.
Proof of foreign will by copy.) (a) A written will admitted to probate
outside of this State is sufficiently proved to admit it to probate in this State by
introducing in evidence an authenticated copy of the will and the probate thereof.
(b) A written will from any state or country whose laws do not require
a will to be probated
is sufficiently proved to admit it to probate in this State by introducing in evidence
an authenticated certificate of the legal custodian of the will that the
copy is a true copy and
that the will has become operative by the laws of that state or country.
(c) A notarial will from a state or country whose laws require the will
to remain in the
custody of a notary is sufficiently proved to admit it to probate in this
State by introducing
in evidence a copy of the will authenticated by the notary entitled to the
custody of the will.
(Source: P.A. 79-328.)
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(755 ILCS 5/7-4) (from Ch. 110 1/2, par. 7-4)
Sec. 7-4.
Original proof of foreign will in this State.) (a) A will executed
outside of this
State in accordance with this Act is sufficiently proved to admit
it to probate in this State when proved in this State in the manner provided by
this Act for proving wills executed in this State.
(b) A will executed outside of this State in accordance with the law of
the place where
executed is sufficiently proved to admit it to probate in this State when proved
in this State in the manner provided by the law of the place where executed
for proving wills there executed.
(c) A will executed outside of this State in accordance with the law of the
testator's domicile at the time of its execution is sufficiently proved to admit it to
probate in this State when proved in this State in the manner provided by the law of the
testator's domicile at the time of its execution for proving wills there executed.
(d) A will proved as provided in this Section may not be admitted to probate when
there is proof of fraud, forgery, compulsion or other improper conduct which
in the opinion
of the court is deemed sufficient to invalidate or destroy the will.
(Source: P.A. 79-328.)
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(755 ILCS 5/7-5) (from Ch. 110 1/2, par. 7-5)
Sec. 7-5.
Effect of probate of foreign will.) The admission to probate
in this State of a will executed and proved in the manner provided by this
Article has the same effect in all respects as the admission to probate
of a domestic will and letters of office may be issued unless the issuance
of letters is excused.
(Source: P.A. 81-788.)
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(755 ILCS 5/7-6) (from Ch. 110 1/2, par. 7-6)
Sec. 7-6.
Disposition of personal estate of nonresident decedent.) If a
nonresident decedent who is a citizen of the United States or a citizen or subject
of a foreign country, provides in his will that the testamentary
disposition of tangible or intangible personal estate having a situs within this
State as defined in Section 5-2, is to be construed and regulated by the laws of
this State, the validity and effect of such disposition shall be determined
by such laws.
In respect of a nonresident decedent's tangible or intangible personal estate having
a situs within this State, as defined in Section 5-2, the court may
direct and, in the case of a decedent who was at the time of his death a resident
of a foreign country, shall direct the representative appointed in this State to make
distribution directly to those designated by the decedent's will as beneficiaries
of the tangible or intangible personal estate or to the persons entitled to
receive the decedent's personal estate under the laws of the decedent's
domicile, as the
case may be.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. VIII heading) ARTICLE VIII
WILL CONTESTS
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(755 ILCS 5/8-1) (from Ch. 110 1/2, par. 8-1)
Sec. 8-1. Contest of
admission of will to probate; notice. (a) Within 6 months after the admission
to probate of a domestic will in accordance with the provisions
of Section 6-4 or Section 20-20 or 20-25 of the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act, or of a foreign will in accordance with the provisions of
Article VII of this Act, any interested person may file a petition in the proceeding
for the administration of the testator's estate or, if no proceeding is
pending,
in the court in which the will was admitted to probate, to contest the validity
of the will.
(b) The petitioner shall cause a copy of the petition to be mailed or
delivered
to the representative, to his or her
attorney of
record, and to each heir and legatee whose name is listed in the petition to
admit the will to probate and in any amended petition filed in accordance with
Section 6-11,
at the address stated in the petition or amended petition. Filing a
pleading constitutes a waiver of the mailing or delivery of the notice to the
person filing the pleading. Failure to mail or deliver a copy of the petition
to an heir or a legatee does not extend the time within which a petition to
contest
the will may be filed under subsection (a) of this Section or affect the
validity of the judgment entered in the proceeding.
(c) Any contestant or proponent may demand a
trial by jury. An issue
shall be made whether or not the instrument produced is
the will of the testator. The contestant shall in the first instance proceed
with proof to establish the invalidity of the will. At the close of the
contestant's case, the proponent may present evidence to sustain the will.
An authenticated transcript of the testimony of any witness or other party taken at the
time of the hearing on the admission of the will to probate, or an affidavit
of any witness or other party received as evidence under subsection 6-4(b), paragraphs (c) and (e) of Section 20-20 of the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act, or Section 20-25 of the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act, is admissible in
evidence.
(d) The right to institute or continue a proceeding to contest the validity
of a will survives and descends to the heir, legatee, representative, grantee
or assignee of the person entitled to institute the proceeding.
(e) It is the duty of the representative to defend a proceeding to contest
the validity of the will. The court may order the representative to defend
the proceeding or prosecute an appeal from the judgment. If the representative
fails or refuses to do so when ordered by the court, or if there is no
representative then acting, the court, upon its
motion or on application of any interested person, may appoint a special
administrator to defend or appeal in his stead.
(f) An action to set aside or contest the validity of a revocable inter
vivos trust agreement or declaration of trust to which a legacy is provided by
the settlor's will which is admitted to probate shall be commenced within and
not after the time to contest the validity of a will as provided in
subsection (a) of this Section
and Section 13-223 of the Code of Civil Procedure.
(g) This amendatory Act of 1995 applies to pending cases as well as cases
commenced on or after its effective date.
(Source: P.A. 102-167, eff. 7-26-21; 103-301, eff. 1-1-24.)
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(755 ILCS 5/8-2) (from Ch. 110 1/2, par. 8-2)
Sec. 8-2. Contest of denial of admission of will to probate.
(a) Within
6 months after the entry of an order denying admission to probate of a domestic
will in accordance with the provisions of Section 6-4 or Section 20-20 or 20-25 of the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act, or of a foreign will
in accordance with the provisions of Article VII of this Act, any interested person
desiring to contest the denial of admission may file a petition to admit
the will to probate in the proceeding for the administration of the
decedent's estate
or, if no proceeding is pending, in the court which
denied admission of the
will to probate. The petition must state the facts required to be stated
in Section 6-2 or 6-20, whichever is applicable.
(b) The petitioner shall cause a copy of the petition to be mailed or
delivered
to the representative, to his or her attorney of record, and to
each
heir and legatee whose name is listed in the petition to admit the will to
probate and in any amended petition filed in accordance with Section 6-11, at
the address stated in the petition or amended petition. Filing a pleading
constitutes a waiver of the
mailing or delivery of the notice to the person
filing the pleading. Failure to mail or deliver a copy of the petition to an
heir or legatee does not extend the time within which a petition to admit the
will
to probate may be filed under subsection (a) of Section 8-1 or
affect the validity of the judgment entered in the proceeding.
(c) Any proponent or contestant may demand a
trial by jury. An issue
shall be made whether or not the instrument produced is the will of the
testator. The proponent shall in the first instance proceed
with proof to establish the validity of the will and may introduce any evidence
competent to establish a will. Any interested person may oppose the petition
and may introduce any evidence admissible in a will contest under Section
8-1. At the close of the contestant's case, the proponent may present further
evidence to sustain the will.
(d) The right to institute or continue a proceeding to contest the denial
of admission of a will to probate survives and descends to the heir, legatee,
representative, grantee or assignee of the person entitled to institute
the proceeding.
(e) The court may order the representative to defend a proceeding to probate
the will or prosecute an appeal from the judgment. If the representative
fails or refuses to do so when ordered by the court, or if there is no
representative then acting, the court, upon its
motion or on application of any interested person, may appoint a special
administrator to do so in his stead.
(f) A person named as executor in a will that has been denied admission
to probate has no duty to file or support a petition under Section 8-2.
(g) This amendatory Act of 1995 applies to pending cases as well as cases
commenced on or after its effective date.
(Source: P.A. 102-167, eff. 7-26-21; 103-301, eff. 1-1-24.)
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(755 ILCS 5/Art. IX heading) ARTICLE IX
LETTERS OF ADMINISTRATION
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(755 ILCS 5/9-1) (from Ch. 110 1/2, par. 9-1)
Sec. 9-1. Who may act as administrator. A person who has attained
the age of 18 years, is a resident of the United States, is not of unsound
mind, is not an adjudged person with a disability as defined in this Act and has not
been convicted of a felony, is qualified to act as administrator.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/9-2) (from Ch. 110 1/2, par. 9-2)
Sec. 9-2.
Issuance of letters of administration.) When a person dies
intestate, letters of administration shall be issued in accordance with
the preferences in Section 9-3 upon petition therefor, unless the issuance
of letters is excused. If after letters are issued the sole administrator
or all administrators die or resign or their letters are revoked, letters
shall be issued in accordance with the preferences in Section 9-3.
(Source: P.A. 81-788.)
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(755 ILCS 5/9-3) (from Ch. 110 1/2, par. 9-3)
Sec. 9-3. Persons entitled to preference in obtaining letters. The following persons are entitled to preference in the following order in
obtaining the issuance of letters of administration and of administration with
the will annexed:
(a) The surviving spouse or any person nominated by the surviving spouse.
(b) The legatees or any person nominated by them,
with preference to legatees who are children.
(c) The children or any person nominated by them.
(d) The grandchildren or any person nominated by them.
(e) The parents or any person nominated by them.
(f) The brothers and sisters or any person nominated by them.
(g) The nearest kindred or any person nominated by them.
(h) The representative of the estate of a deceased ward.
(i) The Public Administrator.
(j) A creditor of the estate.
Only a person qualified to act as administrator under this Act may
nominate, except that the guardian of the estate, if any, otherwise the
guardian of the person, of a person who is not qualified to act as
administrator solely because of minority or legal disability may nominate
on behalf of the minor or person with a disability in accordance with the order of
preference set forth in this Section. A person who has been removed as
representative under this Act loses the right to name a successor.
When several persons are claiming and are equally entitled
to administer or to nominate an administrator, the court may grant letters
to one or more of them or to the nominee of one or more of them.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/9-4) (from Ch. 110 1/2, par. 9-4)
Sec. 9-4. Petition to issue letters.) Anyone desiring to have letters of
administration issued on the estate of an intestate decedent shall file a
petition therefor in the court of the proper county. The petition shall
state, if known: (a) the name and place of residence of the decedent at
the time of his death; (b) the date and place of death; (c) the
approximate value of the decedent's real and personal estate in this
State; (d) the names and post office addresses of all heirs
of the decedent and whether any of them is a minor or person with a disability and
whether any of them is entitled either to administer or to nominate a
person to administer equally with or in preference to the petitioner; (e)
the name and post office
address of the person nominated as administrator; (f) the facts showing
the right of the petitioner to act as or to nominate the administrator;
(g) when letters of administration de bonis non are sought, the reason
for the issuance of the letters; and (h) unless supervised administration
is requested, the name and address of any
personal fiduciary acting or designated to act pursuant to Section 28-3.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/9-5) (from Ch. 110 1/2, par. 9-5)
Sec. 9-5. Notice-Waiver.) (a) Not less than 30 days before the hearing
on the petition to issue letters, the petitioner shall mail a copy of the
petition, endorsed with the time and place of the hearing, to each person
named in the petition whose post office address is stated and who is
entitled either to administer or to nominate a person to administer equally
with or in preference to the petitioner.
(b) Not more than 14 days after entry of an order directing that
original letters of office issue to an administrator, the administrator
shall mail a copy of the petition to issue letters and a copy of the order
showing the date of its entry to each of the decedent's heirs who was not
entitled to notice of the hearing on the petition under subsection (a). If
the name or post office address of any heir is not stated in the petition,
the administrator shall publish a notice once a week for 3 successive weeks,
the first publication to be not more than 14 days after entry of the
order, describing the order and the date of entry. The notice shall be
published in a newspaper published in the county where the order was
entered and may be combined with a notice under Section 18-3. The
administrator shall file proof of mailing and publication, if publication
is required, with the clerk of the court.
(c) A copy of the petition and of the order need not be sent to, nor
notice published for, any person not designated in the petition as a minor
or as a person with a disability and who personally appeared before the court at the
hearing or who files his waiver of notice.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/9-6) (from Ch. 110 1/2, par. 9-6)
Sec. 9-6. Petition to issue letters on presumption of death of decedent -
notice - waiver.) (a) Anyone desiring to have original letters of
administration issued on the presumption of death of the decedent shall
file a petition therefor in the court of the proper county. The petition
shall state, in addition to the information required by clauses (c) through
(h) of Section 9-4, the facts and circumstances raising the presumption,
the name and last known post office address of the decedent and, if known,
the name and post office address of each person in possession or control of
any property of the decedent.
(b) Not less than 30 days before the hearing on the petition the
petitioner shall (1) mail a copy of the petition to the decedent at his
last known address, to each heir whose name and post office address are
stated in the petition and to each person shown by the
petition to be in possession or control of any property of the decedent,
and (2) publish a notice of the hearing on the petition once a week for 3
successive weeks, the first publication to be not less than 30 days before
the hearing. The notice shall be published in a newspaper published in the
county where the petition is filed. The notice shall state the time and
place of the hearing, the name of the decedent and, when known, the names
of the heirs. The petitioner shall endorse the time and place of the
hearing on each copy of the petition mailed by him. The petitioner shall
file a proof of mailing and of publication with the clerk of the court.
(c) A copy of the petition need not be sent to any person not designated
in the petition as a minor or as a person with a disability and who personally
appeared before the court at the hearing or who filed his waiver of notice.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/9-7) (from Ch. 110 1/2, par. 9-7)
Sec. 9-7.
Revocation of letters and issuance of new
letters of administration - preference.) If the petitioner has not mailed,
as provided in this Article, a copy
of the petition for letters of administration to any person,
whether or not named in the petition, who is entitled to
administer or to nominate a person to administer equally
with or in preference to the petitioner, the person entitled
to administer or nominate within 3 months after the issuance
of the letters may file a petition for issuance of letters
to him or to his nominee. The person entitled to preference
must give 10 days notice of the hearing on his petition to
the person to whom letters were issued. Upon the hearing
the court may revoke the letters previously issued and issue
new letters.
(Source: P.A. 82-427.)
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(755 ILCS 5/9-8) (from Ch. 110 1/2, par. 9-8)
Sec. 9-8. Distribution on summary administration. Upon the filing
of a petition therefor in the court of the proper county by any
interested person and after ascertainment of heirship of the decedent
and admission of the will, if any, to probate, if it appears to the
court that:
(a) the gross value of the decedent's real and | ||
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(b) there is no unpaid claim against the estate, or | ||
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(c) no tax will be due to the United States or to | ||
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(d) no person is entitled to a surviving spouse's or | ||
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(e) all heirs and legatees of the decedent have | ||
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(f) each distributee gives bond in the value of his | ||
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(g) the petitioner has published a notice informing | ||
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the court may determine the rights of claimants and other persons
interested in the estate, direct payment of claims and distribution of
the estate on summary administration and excuse the issuance of letters
of office or revoke the letters which have been issued and discharge the
representative.
Any claimant may file his claim in the proceeding at or before the
hearing on the petition, but failure to do so does not deprive the
claimant of his right to enforce his claim in any other manner provided
by law.
A petition for distribution on summary administration may be combined
with or filed separately from a petition for probate of a will or for
administration of an estate.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/9-9) (from Ch. 110 1/2, par. 9-9)
Sec. 9-9.
Payment or delivery of personal estate on order for summary
administration.) Upon receipt of an authenticated copy of the order of
the court, as provided in Section 9-8, any person or corporation indebted
to or holding the personal estate of the decedent or acting as registrar
or transfer agent of any evidence of interest, indebtedness, property or
right shall pay the indebtedness or deliver, transfer or issue the personal
estate in accordance with the order. Upon the payment, delivery, transfer
or issuance in accordance with the order, the person or corporation is released
to the same extent as if the payment, delivery, transfer or issuance had
been made to a legally qualified representative of the decedent and is not
required to see to the application or disposition of the property, but
each person to whom a payment, delivery, transfer or
issuance is made is liable to the extent of the value thereof at the time
of distribution to any claimant or other person having a prior right and
is accountable to any representative of the decedent thereafter appointed.
If a person or corporation to whom the authenticated copy of the order
is delivered refuses to pay, deliver, transfer or issue the personal estate
as provided by this Section, it may be recovered in a civil action by or
on behalf of the person entitled to receive it upon proof of receipt of
the authenticated copy of the order by the person or corporation indebted
to or holding the personal estate or acting as registrar or transfer agent.
(Source: P.A. 81-788.)
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(755 ILCS 5/9-10) (from Ch. 110 1/2, par. 9-10)
Sec. 9-10.
Omitted or unnotified heir.
If it appears after entry of
an order directing that original letters of office issue to an
administrator that a person entitled to notice under subsection (a) or (b)
of Section 9-5 or under Section 9-6 was omitted from the petition to issue
letters or, if included in the petition, that notice to him was not mailed
or published under subsection (a) or (b) of Section 9-5 or under Section
9-6, whichever is applicable, and that no waiver of notice was filed by the
omitted or unnotified person, an amended petition shall be filed under the
applicable Section or subsection which shall include the omitted or
unnotified person. A copy of the amended petition and the order directing
that original letters of office issue shall be mailed to or published for
the omitted or unnotified person, as provided in Section 9-5 or Section
9-6, as the case may be, in the same manner as if the order were entered at
the time the amended petition was filed. The original order directing that
letters of office issue to the administrator is effective as to the omitted
or unnotified person as of the date the amended petition is filed and is
effective as to all other persons, including creditors, as of the date of
entry of the original order.
(Source: P.A. 85-692.)
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(755 ILCS 5/Art. X heading) ARTICLE X
ADMINISTRATORS TO COLLECT
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(755 ILCS 5/10-1) (from Ch. 110 1/2, par. 10-1)
Sec. 10-1.
Letters of administration to collect.) (a)
Upon the filing of a petition of any interested person or
upon its own motion, the court may issue letters of administration
to collect: (1) when any contingency happens which
is productive of delay in the issuance of letters of office
and it appears to the court that the estate of the decedent
is liable to waste, loss or embezzlement or (2) when a person
is missing from his usual place of residence and cannot
be located or while in military service is reported by the
federal government or an agency or department thereof as
missing or missing in action. In order to act as administrator
to collect one must be qualified to act as an administrator
under this Act.
(b) The selection of an administrator to collect for
the estate of a decedent is in the discretion of the
court, giving due consideration to the person named as executor
in the will or, if there is no will or if no executor is
named, to the preferences in Section 9-3. The selection of
an administrator to collect for the estate of a missing person
must be in accordance with the preferences in Section 9-3.
(Source: P.A. 79-328.)
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(755 ILCS 5/10-2) (from Ch. 110 1/2, par. 10-2)
Sec. 10-2.
Petition for letters of administration to
collect.) A person desiring to have letters of administration to
collect issued on the estate of a deceased or missing person
must file a petition therefor in the court of the proper county.
The petition must state, if known:
(a) the name and place of residence of the decedent at the
time of his death or the name and last known address of the
missing person; (b) the time and place of the decedent's
death or in the case of a missing person the facts and circumstances
as to his being missing or reported as missing or missing in action;
(c) the approximate value of the decedent's or missing person's real and
personal estate in this State and the amount of his anticipated gross
annual income from his real estate in this State; (d) in the case
of a missing person, the names and post office addresses
of his nearest relatives in the following order: the spouse
and adult children, if any; if none, the parents and adult
brothers and sisters, if any; if none, the nearest adult
kindred; (e) the name and address of the person proposed
as administrator to collect; and (f) the reason for the
issuance of letters.
(Source: P.A. 79-328.)
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(755 ILCS 5/10-3) (from Ch. 110 1/2, par. 10-3)
Sec. 10-3.
Administrator to collect for missing person - notice.)
When letters of administration to collect are sought for the estate of a
missing person, the petitioner must publish a notice of the
hearing on the petition once a week for 3 successive weeks, the first
publication to be not less than 30 days before the hearing. The notice
must state the time and place of the hearing, the name of the missing
person and his last known address and the name and address of each of
his relatives listed in the petition. Not less than 20 days before the
hearing, the petitioner must send a
copy of the petition and notice by mail
to the missing person at his last known address and to each of his
relatives whose name and address is listed in the petition. If it
appears to the court that the estate of a missing person is liable to
waste, loss or embezzlement, the court may appoint an administrator to
collect for a missing person without prior notice in which event the
administrator (a) must forthwith
publish a notice stating that the person named
was appointed administrator to collect of the estate of the missing
person and that the appointment will remain in effect unless application
to vacate the order is made on or before a date designated by the court,
the notice to be published once a week for 3 successive weeks, the first
publication to be not less than 30 days before the designated date, and
(b) not less than 20 days before the designated date, shall send a copy
of the petition and notice by mail to the missing person at his last
known address and to each of his relatives whose name and address are
listed on the petition. The notice required by this Section must be
published in a newspaper of general circulation published in the county
where the petition is filed. The petitioner or administrator, as the
case may be, must file proof of mailing and publication with the clerk of the court.
(Source: P.A. 81-1453.)
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(755 ILCS 5/10-4) (from Ch. 110 1/2, par. 10-4)
Sec. 10-4.
Powers and duties of administrator to collect.)
An administrator to collect has power to sue for and collect
the personal estate and debts due the decedent or missing
person and by leave of court to exercise the powers vested by
law in an administrator. The provisions of this Act relating
to the sale, mortgage and leasing of real and personal estate
by resident administrators are applicable to sales, mortgages,
and leasing of real and personal estate by administrators to
collect. A suit commenced by an administrator to collect
does not abate by the revocation of his letters either before
or after judgment in the trial or reviewing court, but his
successor as representative or the missing person if his survival
is established, may be substituted in his stead in the
proceedings. When authorized by the court, an administrator
to collect of the estate of a missing person may make disbursements
to or for the benefit of his spouse, his children, including
children by adoption, any person to whom he stood
in the acknowledged relation of a parent, any person related
to him by blood or marriage who is dependent upon or entitled
to support from him and anyone to whom the missing person is
indebted and may perform the contracts of the missing person
which were legally subsisting at the time of his disappearance
and execute and deliver a deed, bill of sale or other instrument.
(Source: P.A. 79-328.)
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(755 ILCS 5/10-5) (from Ch. 110 1/2, par. 10-5)
Sec. 10-5.
Termination of powers.) On the issuance of
letters testamentary or of administration or the satisfactory
establishment of the survival and location of the missing person,
the powers of an administrator to collect cease and his letters
shall be revoked.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. XI heading) ARTICLE XI.
MINORS
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(755 ILCS 5/11-1) (from Ch. 110 1/2, par. 11-1)
Sec. 11-1. Definitions. As used in this Article: "Administrative separation" means a parent's, legal guardian's, legal custodian's, or primary caretaker's: (1) arrest, detention, incarceration, removal, or deportation in connection with federal immigration enforcement; or (2) receipt of official communication by federal, State, or local authorities regarding immigration enforcement that gives reasonable notice that care and supervision of the child by the parent, legal guardian, legal custodian, or primary caretaker will be interrupted or cannot be provided. "Minor" means a person who has not
attained the age of 18 years. A person who has attained the age of 18 years
is of legal age for all purposes except as otherwise provided
in the Illinois Uniform Transfers to Minors Act.
(Source: P.A. 101-120, eff. 7-23-19; 102-558, eff. 8-20-21.)
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(755 ILCS 5/11-3) (from Ch. 110 1/2, par. 11-3)
Sec. 11-3. Who may act as guardian.
(a) A person is
qualified to act
as guardian of the person and as
guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the proposed guardian: (1) has attained the age of 18 years; (2) is a resident of the United States; (3) is not of unsound mind; (4) is not an adjudged person with a disability as | ||
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(5) has not been convicted of a felony, unless the | ||
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One person may be appointed guardian of the
person and another person appointed guardian of the estate.
(b) The Department of Human Services
or the Department of Children and Family Services may with the approval
of the court designate one of its employees to serve without fees as
guardian of the estate of a minor patient in a State mental hospital or
a resident in a State institution when the value of the personal estate
does not exceed $1,000.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)
Sec. 11-5. Appointment of guardian.
(a) Upon the filing of a petition for the appointment of a guardian or on
its own motion, the court may appoint a guardian of the estate or of both the
person and estate, of a minor, or may appoint a guardian of the person only of
a minor or minors, as the court finds to be in the best interest of the minor
or minors.
(a-1) A parent, adoptive parent or adjudicated parent, whose parental rights
have not been terminated, may designate in any writing, including a will, a
person qualified to act under Section 11-3 to be appointed as guardian of
the person or estate, or both, of an unmarried minor or of a child likely to be
born. A parent, adoptive parent or adjudicated parent, whose parental rights
have not been terminated, or a guardian or a standby guardian of an unmarried
minor or of a child likely to be born may designate in any writing, including a
will, a person qualified to act under Section 11-3 to be appointed as successor
guardian of the minor's person or estate, or both. The designation must be
witnessed by 2 or more credible witnesses at least 18 years of age, neither of
whom is the person designated as the guardian. The designation may be proved
by any competent evidence. If the designation is executed and attested in the
same manner as a will, it shall have prima facie validity. The designation of a
guardian or successor guardian does not affect the rights of the other parent
in the minor.
(b) The court lacks jurisdiction to proceed on a petition for the
appointment of a guardian of a minor if it finds that (i) the minor has a living parent,
adoptive parent or adjudicated parent, whose parental rights have not been
terminated, whose whereabouts are known, and who is willing and able to make
and carry out day-to-day child care decisions concerning the minor, unless: (1) the
parent or parents voluntarily relinquished physical custody of the minor; (2) after receiving notice of the
hearing under Section 11-10.1, the parent or parents fail to object to the appointment at the
hearing on the petition; (3) the parent or parents consent to the appointment as evidenced by a written document that has been notarized and dated, or by a personal appearance and consent in open court; or (4) the parent or parents, due to an administrative separation, are unable to give consent to the appointment in person or by a notarized, written document as evidenced by a sworn affidavit submitted by the petitioner describing the parent's or parents' inability to receive notice or give consent; or (ii) there is a guardian for the minor appointed by
a court of competent jurisdiction. There shall be a rebuttable presumption
that a parent of a minor is willing and able to make and carry out
day-to-day child care decisions concerning the minor, but the presumption may
be rebutted by a preponderance of the evidence. If a short-term guardian has been appointed for the minor prior to the filing of the petition and the petitioner for guardianship is not the short-term guardian, there shall be a rebuttable presumption that it is in the best interest of the minor to remain in the care of the short-term guardian. The petitioner shall have the burden of proving by a preponderance of the evidence that it is not in the child's best interest to remain with the short-term guardian.
(b-1) If the court finds the appointment of a guardian of the minor to be
in the best interest of the minor, and if a standby guardian has previously
been appointed for the minor under Section 11-5.3, the court shall appoint the
standby guardian as the guardian of the person or estate, or both, of the minor
unless the court finds, upon good cause shown, that the appointment would no
longer be in the best interest of the minor.
(b-2) No petition for the appointment of a guardian of a minor shall be filed if the primary purpose of the filing is to reduce the financial resources available to the minor in order to cause the minor to qualify for public or private financial assistance from an educational institution. The court may deny the petition if it finds by a preponderance of the evidence that the primary purpose of the filing is to enable the minor to declare financial independence so that the minor may obtain public or private financial assistance from an educational institution or a State or federal student financial aid program. (c) If the minor is 14 years of age or more, the minor may nominate the
guardian of the minor's person and estate, subject to approval of the court. If
the minor's nominee is not approved by the court or if, after notice to the minor, the minor fails to nominate a
guardian of the minor's person or estate, the court may appoint the guardian
without nomination.
(d) The court shall not appoint as guardian of the person of the minor any
person whom the court has determined had caused or substantially contributed to
the minor becoming a neglected or abused minor as defined in the Juvenile Court
Act of 1987, unless 2 years have elapsed since the last proven incident of abuse
or neglect and the court determines that appointment of such person as guardian
is in the best interests of the minor.
(e) Previous statements made by the minor relating to any allegations
that the minor is an abused or neglected child within the meaning of the
Abused and Neglected Child Reporting Act, or an abused or neglected minor
within the meaning of the Juvenile Court Act of 1987, shall be admissible
in evidence in a hearing concerning appointment of a guardian of the person
or estate of the minor. No such statement, however, if uncorroborated and
not subject to cross-examination, shall be sufficient in itself to support
a finding of abuse or neglect.
(Source: P.A. 103-475, eff. 1-1-24.)
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(755 ILCS 5/11-5.1)
Sec. 11-5.1.
(Repealed).
(Source: Repealed by P.A. 88-529.)
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(755 ILCS 5/11-5.2)
Sec. 11-5.2.
(Repealed).
(Source: Repealed by P.A. 88-529.)
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(755 ILCS 5/11-5.3)
Sec. 11-5.3. Appointment of standby guardian.
(a) A parent, adoptive parent, or adjudicated parent whose parental
rights
have not been terminated,
or the guardian of the person of a minor
may designate in any writing, including a will, a
person qualified to act under Section 11-3 to be appointed as standby
guardian of the person or estate, or both, of an unmarried minor or of a child
likely to be born. A parent, adoptive parent, or adjudicated parent
whose
parental rights have not been terminated,
or the guardian of the person of a minor
or a standby guardian of an unmarried
minor or of a child likely to be born may designate in any writing, including a
will, a person qualified to act under Section 11-3 to be appointed as successor
standby guardian of the minor's person or estate, or both. The designation must
be witnessed by 2 or more credible witnesses at least 18 years of age, neither
of whom is the person designated as the standby guardian. The designation may
be proved by any competent evidence. If the designation is executed and
attested in the same manner as a will, it shall have prima facie validity.
The designation of a standby guardian or successor standby guardian does not
affect the rights of the other parent in the minor.
(b) Upon the filing of a petition for the appointment of a standby guardian,
the court may appoint a standby guardian of the person or estate, or both, of a
minor as the court finds to be in the best interest of the minor.
(c) The court lacks jurisdiction to proceed on a petition for the
appointment of a standby guardian of a minor if the minor has a living
parent, adoptive parent or adjudicated parent, whose parental rights have not
been terminated, whose whereabouts are known, and who is willing and able to
make and carry out day-to-day child care decisions concerning the minor, unless
the parent or parents: (1) consent to the appointment; (2) after receiving notice of
the hearing under Section 11-10.1, fail to object to the appointment at the
hearing on the petition; or (3) due to an administrative separation, are unable to give consent to the appointment in person or by a notarized, written document as evidenced by a sworn affidavit submitted by the petitioner describing the parent's or parents' inability to receive notice or give consent.
There shall be a rebuttable presumption
that a parent of a minor is willing and able to make and carry out
day-to-day child care decisions concerning the minor, but the presumption may
be rebutted by a preponderance of the evidence.
(d) The standby guardian shall take and file an oath or
affirmation that the standby guardian will faithfully discharge the duties
of the office of standby guardian according to law, and shall file in and have
approved by the court a bond binding the standby guardian so to do, but shall
not be required to file a bond until the standby guardian assumes all duties as
guardian of the minor under Section 11-13.1.
(e) The designation of a standby guardian may, but need not, be in the
following form:
DESIGNATION OF STANDBY GUARDIAN
[IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
A standby guardian is someone who has been appointed by the court as the
person who will act as guardian of the child when the child's parents or the
guardian of the person of the child
die or
are no longer willing or able to make and carry out day-to-day child care
decisions concerning the child. By properly completing this form, a parent or
the guardian of the person of the child
is naming the person that the parent or the
guardian
wants to be appointed as the standby guardian
of the child or children. Both parents of a child may join
together and co-sign this form. Signing the form does not appoint the standby
guardian; to be appointed, a petition must be filed in and approved by the
court.]
1. Parent (or guardian) and Children. I, (insert name | ||
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2. Standby Guardian. I hereby designate the | ||
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3. Successor Standby Guardian. If the person named | ||
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4. Date and Signature. This designation is made this | ||
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Signed: (designating parent or guardian)
5. Witnesses. I saw the parent (or the guardian of | ||
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(Source: P.A. 101-120, eff. 7-23-19.)
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(755 ILCS 5/11-5.4)
Sec. 11-5.4. Short-term guardian.
(a) A parent, adoptive parent, or adjudicated parent whose parental
rights
have not been terminated,
or the guardian of the person of a minor
may appoint in writing, without court approval, a
short-term guardian of an unmarried minor or a child likely to be born. The
written instrument appointing a short-term guardian shall be dated and shall
identify the appointing parent
or guardian,
the minor, and the person appointed to be the
short-term guardian. The written instrument shall be signed by, or at the
direction of, the appointing parent in the presence of at least 2 credible
witnesses at least 18 years of age, neither of whom is the person appointed as
the short-term guardian. The person appointed as the short-term guardian shall
also sign the written instrument, but need not sign at the same time as the
appointing parent.
(b) A parent or guardian shall not appoint a short-term guardian of a
minor if the
minor has another living parent, adoptive parent or adjudicated parent, whose
parental rights have not been terminated, whose whereabouts are known, and who
is willing and able to make and carry out day-to-day child care decisions
concerning the minor, unless the nonappointing parent consents to the
appointment by signing the written instrument of appointment.
(c) The appointment of the short-term guardian is effective immediately upon
the date the written instrument is executed, unless the written instrument
provides for the appointment to become effective upon a later specified date or
event. Except as provided in subsection (e-5) or (e-10) of this Section, the short-term guardian shall have authority to act as guardian of the
minor as provided in Section 11-13.2 for a period of 365 days
from the date the appointment is effective, unless the written instrument
provides for the appointment to terminate upon a different specified date or
event as permitted by this Section. Only one written instrument appointing a short-term guardian may be in
force at any given time.
(d) Every appointment of a short-term guardian may be amended or revoked by
the appointing parent or by the appointing guardian of the person of the
minor
at any time and in any manner communicated to the
short-term guardian or to any other person. Any person other than the
short-term guardian to whom a revocation or amendment is communicated or
delivered shall make all reasonable efforts to inform the short-term guardian
of that fact as promptly as possible.
(d-5) Except as provided in subsection (e-5) or (e-10), a short-term guardian appointed as the result of an administrative separation may renew a short-term guardianship for an additional 365 days from the date the initial appointment expires if the administrative separation is still in effect, unless the written instrument provides for the appointment to terminate upon a different date or event as permitted by this Section. (e) The appointment of a short-term guardian or successor short-term
guardian does not affect the rights of the other parent in the minor. The short-term guardian appointment does not constitute consent for court appointment of a guardian.
(e-5) Any time after the appointment of a temporary custodian under Section 2-10, 3-12, 4-9, 5-410, or 5-501 of the Juvenile Court Act of 1987, and after notice to all parties, including the short-term guardian, as required by the Juvenile Court Act of 1987, a court may vacate any short-term guardianship for the minor appointed under this Section, provided the vacation is consistent with the minor's best interests as determined using the factors listed in paragraph (4.05) of Section 1-3 of the Juvenile Court Act of 1987. (e-10) A parent or guardian who is a member of the Armed Forces of the United States, including any reserve component thereof, or the commissioned corps of the National Oceanic and Atmospheric Administration or the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the Armed Forces of the United States, or who is required to enter or serve in the active military service of the United States under a call or order of the President of the United States or to serve on State active duty, may appoint a short-term guardian for a period of longer than 365 days if on active duty service. The writing appointing the short-term guardian under this subsection shall include the dates of the parent's or guardian's active duty service, and the appointment may not exceed the term of active duty plus 30 days. (f) The written instrument appointing a short-term guardian may, but need
not, be in the following form:
APPOINTMENT OF SHORT-TERM GUARDIAN
[IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
By properly completing this form, a parent or the guardian
of the person of the child is appointing a guardian of
a child of the parent
(or a minor ward of the guardian, as the case may be)
for a period of up to 365 days. A separate form should be
completed for each child. The person appointed as
the guardian must sign the form, but need not do so at the same time as the
parent or parents or guardian.
If you are a parent or guardian who is a member of the Armed Forces of the United States, including any reserve component thereof, or the commissioned corps of the National Oceanic and Atmospheric Administration or the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the Armed Forces of the United States, or who is required to enter or serve in the active military service of the United States under a call or order of the President of the United States or to serve on State active duty, you may appoint a short-term guardian for your child for the period of your active duty service plus 30 days. When executing this form, include the date your active duty service is scheduled to begin in part 3 and the date your active duty service is scheduled to end in part 4. This form may not be used to appoint a guardian if there is a guardian
already appointed for the child, except that if
a guardian of the person of the child has
been appointed, that guardian may use this form to appoint a
short-term guardian.
Both living parents of a child may together
appoint a guardian of the child, or the
guardian of the person of the child may
appoint a guardian of the child,
for a period
of up to 365 days through the use
of this form.
If the short-term guardian is appointed by both living parents of the
child,
the parents need not sign the form at the same time.]
1. Parent (or guardian) and Child. I, (insert name | ||
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2. Guardian. I hereby appoint the following person | ||
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3. Effective date. This appointment becomes | ||
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( ) On the date that I state in writing that I am | ||
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( ) On the date that a physician familiar with my | ||
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( ) On the date that I am admitted as an | ||
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( ) On the following date: (insert date). ( ) On the date my active duty service begins: | ||
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( ) Upon an administrative separation, as defined | ||
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( ) Other: (insert other).
[NOTE: If this item is not completed, the appointment is effective
immediately upon the date the form is signed and dated below.]
4. Termination. This appointment shall terminate 365 | ||
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( ) On the date that I state in writing that I am | ||
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( ) On the date that a physician familiar with my | ||
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( ) On the date that I am discharged from the | ||
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( ) On the date which is (state a number of days, | ||
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( ) On the date no more than 30 days after my | ||
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( ) In the event the administrative separation, | ||
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( ) Other: (insert other).
[NOTE: If this item is not completed, the appointment will be effective for a
period of 365 days, beginning on the effective date.]
5. Date and signature of appointing parent or | ||
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Signed: (appointing parent)
6. Witnesses. I saw the parent (or the guardian of | ||
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7. Acceptance of short-term guardian. I accept this | ||
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Signed: (short-term guardian)
8. Consent of child's other parent. I, (insert name | ||
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Signed: (consenting parent)
[NOTE: The signature of a consenting parent is not necessary if one of the
following applies: (i) the child's other parent has died; or (ii) the
whereabouts of the child's other parent are not known; or (iii) the child's
other parent is not willing or able to make and carry out day-to-day child care
decisions concerning the child; or (iv) the child's parents were never married
and no court has issued an order establishing parentage.]
(Source: P.A. 101-120, eff. 7-23-19.)
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(755 ILCS 5/11-5.5) Sec. 11-5.5. Special immigrant minor findings; appointment of guardian for person aged 18 to 21 years; duties of guardian; additional services. (a) For the purpose of making a finding under this Section: "Abuse" has the meaning ascribed to that term in | ||
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"Abandonment" includes, but is not limited to, the | ||
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"Neglect" includes the meaning ascribed to the term | ||
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(b) A court of this State that is competent to adjudicate a petition for guardianship has jurisdiction to make the findings necessary to enable a minor, who is the subject of a petition for guardianship, to petition the United States Citizenship and Immigration Services for classification as a Special Immigrant Juvenile under Section 1101(a)(27)(J) of Title 8 of the United States Code. (c) If a motion requests findings regarding Special Immigrant Juvenile Status under Section 1101(a)(27)(J) of Title 8 of the United States Code, and the evidence, which may consist solely of, but is not limited to, a declaration by the minor, supports the findings, the court shall issue an order, that includes the following findings: (1)(A) the minor is declared a dependent of the | ||
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(2) that reunification of the minor with one or both | ||
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(3) that it is not in the best interest of the minor | ||
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(d) In any proceedings in response to a motion that the court make the findings necessary to support a petition for classification as a Special Immigrant Juvenile, information regarding the immigration status of the minor, the minor's parent, or the minor's guardian that is not otherwise protected by State confidentiality laws shall remain confidential and shall be available for inspection only by the court, the minor who is the subject of the proceeding, the parties, the attorneys for the parties, the minor's counsel, and the minor's parent or guardian. (e)(1) For purposes of this subsection, "minor" includes an unmarried person who is less than 21 years old who consents to the appointment of a guardian or the continuation of a guardianship after the age of 18. (2) A court making determinations under this subsection shall consider the best interest of the minor, including his or her protection, well-being, care, and custody. The court shall make decisions regarding findings, orders, or referrals to support the health, safety, and welfare of a minor or to remedy the effects on a minor of abuse, neglect, abandonment, or similar circumstances. A court making determinations under this subsection shall be acting as a juvenile court. (3) A petition for guardianship of the person of a minor who is 18 years of age or older, but who has not yet attained 21 years of age, may be filed by a parent, relative, or nonrelative person over the age of 21. (4) With the consent of the minor, the court shall appoint the petitioner as the guardian of the person for a minor who is 18 years of age or older, but who has not yet attained 21 years of age, in connection with a motion for special findings under this Section. (5) At the request of, or with the consent of, the minor, the court shall extend an existing guardianship of the person for a minor over 18 years of age, for purposes of allowing the minor to request special findings under this Section. (6) A guardian appointed pursuant to this subsection shall have responsibility for the custody, nurture, and tuition of the minor, and shall have the right to determine the minor's residence based on the minor's best interest. This subsection does not authorize the guardian to abrogate certain rights that a person who has attained 18 years of age may have under State law, including, but not limited to, decisions regarding the minor's medical treatment without the minor's express consent. (7) A minor who is the subject of a petition for guardianship or for extension of guardianship under this subsection may be referred for psychological, educational, medical, or social services that may be deemed necessary as a result of parental abuse, abandonment, or neglect, or for protection against trafficking or domestic violence. Participation in any referred services shall be voluntary.
(Source: P.A. 101-121, eff. 11-25-19 (see P.A. 101-592 for the effective date of changes made by P.A. 101-121); 102-259, eff. 8-6-21.) |
(755 ILCS 5/11-6) (from Ch. 110 1/2, par. 11-6)
Sec. 11-6.
Venue.) If the minor is a resident of this State, the proceeding
shall be instituted in the court of the county in which he resides. If
the minor is not a resident of this State, the proceeding shall be instituted
in the court of a county in which his real or personal estate is located.
(Source: P.A. 80-1415.)
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(755 ILCS 5/11-7)
Sec. 11-7. (Repealed).
(Source: P.A. 79-328. Repealed by P.A. 96-1338, eff. 1-1-11.)
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(755 ILCS 5/11-7.1) (from Ch. 110 1/2, par. 11-7.1)
Sec. 11-7.1. Visitation rights.
(a) Whenever both parents of a minor are deceased,
visitation rights
shall be granted to the grandparents of the
minor who are the parents of the minor's legal parents unless it is shown
that such
visitation would be detrimental to the best interests and welfare
of the minor. In the discretion of the court, reasonable
visitation rights
may be granted to any other relative of the minor or other person having an
interest in the welfare of the child. However, the court shall not grant
visitation privileges to any person who otherwise might have
visitation
privileges under this Section where the minor has been adopted subsequent
to the death of both his legal parents except where such adoption is by a
close relative. For the purpose of this Section, "close relative" shall
include, but not be limited to, a grandparent, aunt, uncle, first cousin,
or adult brother or sister.
Where such adoption is by a close relative, the court shall not grant
visitation privileges under this Section unless the petitioner alleges and
proves that he or she has been unreasonably denied
visitation with the
child. The court may grant reasonable
visitation privileges upon finding
that such
visitation
would be in the best interest of the child.
An order denying
visitation rights to grandparents of the minor shall be
in writing and shall state the reasons for denial. An order denying
visitation
rights is a final order for purposes of appeal.
(b) Unless the court determines, after considering all relevant factors,
including but not limited to those set forth in Section 602.7
of the Illinois
Marriage and Dissolution of Marriage Act, that it would be in the best
interests of the child to allow
visitation, the court shall not enter an order
providing
visitation rights and pursuant to a motion to modify
visitation
brought under Section 610.5
of the Illinois Marriage and Dissolution of
Marriage Act shall revoke
visitation rights previously granted to any person
who would otherwise be entitled to petition for
visitation rights under
this Section who has been convicted of first degree murder of the parent,
grandparent, great-grandparent, or sibling of the child who is the subject of
the order. Until an order is entered pursuant to this subsection, no person
shall visit, with the child present, a person who has been convicted of first
degree murder of the parent, grandparent, great-grandparent, or sibling of the
child without the consent of the child's parent, other than a parent convicted
of first degree murder as set forth herein, or legal guardian.
(Source: P.A. 99-90, eff. 1-1-16.)
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(755 ILCS 5/11-8) (from Ch. 110 1/2, par. 11-8)
Sec. 11-8. Petition for guardian of minor.
(a) The petition for appointment of a
guardian of the estate, or of both the person and estate, of a minor, or for
appointment of the guardian of the person only of a minor or minors must state,
if known:
(1) the name, date of birth and residence of the minor; (2) the names and
post office addresses of the nearest relatives of the minor in the following
order: (i) the spouse, if any; if none, (ii) the
parents, adult brothers and
sisters, and the short-term guardian, if any; if none, (iii) the nearest adult kindred; (3) the name
and post office address of the person having the custody of the minor; (4)
the approximate value of the personal estate; (5) the amount of the
anticipated
gross annual income and other receipts; (6) the name, post office
address
and, in case of an individual, the age and occupation of the proposed guardian;
(7) the facts concerning the execution or admission to probate of
the written
designation of the guardian, if any, a copy of which shall be attached to or
filed with the petition; and (8) the facts concerning any juvenile,
adoption,
parentage, dissolution, or guardianship court proceedings pending concerning the
minor or the parents of the minor and whether any guardian is currently acting
for the minor. In addition, if the petition seeks the appointment of a
previously appointed standby guardian as guardian of the minor, the petition
must also state: (9) the facts concerning the standby guardian's
previous
appointment and (10) the date of death of the minor's parent or
parents or the
facts concerning the consent of the minor's parent or parents to the
appointment of the standby guardian as guardian, or the willingness and ability
of the minor's parent or parents to make and carry out day-to-day child care
decisions concerning the minor.
The petition must include facts concerning an administrative separation of the parent or parents including the date of the separation and the known or presumed location of the parent or parents and any documentation related to an administrative separation, including, but not limited to, information contained in the online detainee locator system. Documentation related to an administrative separation shall be attached to the petition as an exhibit. If a short-term guardian who has been appointed by the minor's parent or guardian prior to the filing of the petition subsequently petitions for court-ordered guardianship of the minor, the petition shall state the facts concerning the appointment of the short-term guardian, including: (i) the date of the appointment; (ii) the circumstances surrounding the appointment; (iii) the date the short-term guardian appointment ends; and (iv) the reasons why a court-ordered guardian is also needed for the minor. A copy of the short-term guardianship appointment shall be attached to the petition. (b) A single petition for appointment of only a guardian of the person of
a minor may include more than one minor. The statements required in items (1)
and (2) of subsection (a) shall be listed separately for each minor.
(Source: P.A. 101-120, eff. 7-23-19.)
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(755 ILCS 5/11-8.1)
Sec. 11-8.1. Petition for standby guardian of minor. The petition for
appointment of a standby guardian of the person or the estate, or both, of a
minor must state, if known: (a) the name, date of birth, and residence of the
minor; (b) the names and post office addresses of the nearest relatives of the
minor in the following order: (1) the parents, if any; (2) the adult
brothers and sisters, if any; if none, (3) the nearest adult kindred; (4) the short-term guardian, if any; (c) the
name and post office address of the person having custody of the minor; (d) the
name, post office address, and, in case of any individual, the age and
occupation of the proposed standby guardian; (e) the facts concerning the
consent of the minor's parent or parents or the guardian of
the person of the minor
to the appointment of the standby
guardian, or the willingness and ability of the minor's parent or parents, if
any,
or the guardian of the person of the minor
to make and carry out day-to-day child care decisions concerning the
minor; (f) the facts concerning the execution or admission to probate of the
written designation of the standby guardian, if any, a copy of which shall be
attached to or filed with the petition; and (g) the facts concerning any
juvenile, adoption, parentage, dissolution, or guardianship court proceedings
pending concerning the minor or the parents of the minor and whether any
guardian is currently acting for the minor. If a short-term guardian has been appointed by the minor's parent or guardian and subsequently petitions for standby guardianship of the minor, the petition shall state the facts concerning the appointment of the short-term guardian, including: (i) the date of the appointment; (ii) the circumstances surrounding the appointment; (iii) the date the short-term guardian appointment ends; and (iv) the reasons why a standby guardian is also needed for the minor. A copy of the short-term guardianship appointment shall be attached to the petition.
The petition must include facts concerning an administrative separation of the parent or parents including the date of the separation and the known or presumed location of the parent or parents and any documentation related to an administrative separation, including, but not limited to, information contained in the online detainee locator system. Documentation related to an administrative separation shall be attached to the petition as an exhibit.(Source: P.A. 101-120, eff. 7-23-19.)
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(755 ILCS 5/11-9) (from Ch. 110 1/2, par. 11-9)
Sec. 11-9.
Domestic Violence: Order of Protection.
An order of
protection, as defined in the Illinois Domestic Violence Act of 1986, enacted by
the 84th General Assembly, may be issued in conjunction with a proceeding for
appointment of a guardian for a minor if the petition for an order of
protection alleges that a person who is party to or the subject of the
proceeding has been abused by or has abused a family or household member.
The Illinois Domestic Violence Act of 1986 shall govern the issuance, enforcement and
recording of orders of protection issued under this Section.
(Source: P.A. 84-1305.)
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(755 ILCS 5/11-10.1) (from Ch. 110 1/2, par. 11-10.1)
Sec. 11-10.1. Procedure for appointment of a standby guardian or a guardian
of a minor.
(a) Unless excused by the court for good cause shown, it is the duty of the
petitioner to give notice of the time and place of the hearing on the petition,
in person or by mail, to the minor, if the minor is 14 years, or older, and to
the relatives and the short-term guardian of the minor whose names and addresses are stated in the
petition, not less than 7 days before the hearing, but failure to give notice
to any relative is not jurisdictional.
(b) In any proceeding for the appointment of a standby guardian or a
guardian the court may appoint a guardian ad litem to represent the minor in
the proceeding.
(Source: P.A. 98-1082, eff. 1-1-15; 99-207, eff. 7-30-15.)
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(755 ILCS 5/11-11) (from Ch. 110 1/2, par. 11-11)
Sec. 11-11.
Costs in certain cases.) No costs may be taxed or charged
by any public officer in any proceeding for the appointment of a
guardian or for any subsequent proceeding or report made in pursuance
of the appointment when the primary purpose of the appointment is any of
the following:
(a) The proper expenditure of public assistance awarded to the ward
under the provisions of any act of the General Assembly;
(b) The collection, disbursement or administering of money or assets
derived from money awarded to the ward by the Veterans Administration or
by any state or territory of the United States or the District of
Columbia as a veteran's benefit, but costs may be allowed, in the
discretion of the court, whenever there are assets from sources other
than the Veterans Administration;
(c) The management of the estate of a minor patient in a State mental
health or developmental disabilities facility when the value of the personal
estate does not exceed $1,000.
(Source: P.A. 80-1415.)
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(755 ILCS 5/11-13) (from Ch. 110 1/2, par. 11-13)
Sec. 11-13. Duties of guardian of a minor. Before a guardian of a
minor may act, the guardian shall be appointed by the court of the proper
county and, in the case of a guardian of the minor's estate, the guardian shall
give the bond prescribed in Section 12-2. Except as provided in Section
11-13.1 and Section 11-13.2 with respect to the standby or short-term guardian
of the person of a minor, the court shall have control over the person and
estate of the ward. Under the direction of the court:
(a) The guardian of the person shall have the custody, nurture and tuition
and shall provide education of the ward and of his children, but the ward's
spouse may not be deprived of the custody and education of the spouse's
children, without consent of the spouse, unless the court finds that the
spouse is not a fit and competent person to have such custody and education.
If the ward's estate is insufficient to provide for the ward's education
and the guardian of his person fails to provide education, the court may
award the custody of the ward to some other person for the purpose of providing
education. If a person makes a settlement upon or provision for the support
or education of a ward and if either parent of the ward is dead, the court
may make such order for the visitation of the ward by the person making
the settlement or provision as the court deems proper. The guardian of the minor shall inform the court of the minor's current address by certified mail, hand delivery, or other method in accordance with court rules within 30 days of any change of residence.
(a-5) The guardian of estate, or the guardian of the person if a guardian of the estate has not been appointed, may, without an order of court, open, maintain, and transfer funds to an ABLE account on behalf of the ward to provide for the ward as specified under Section 16.6 of the State Treasurer Act. (b) The guardian or other representative of the ward's estate shall have
the care, management and investment of the estate, shall manage the estate
frugally and shall apply the income and principal of the estate so far as
necessary for the comfort and suitable support and education of the ward,
his children, and persons related by blood or marriage who are dependent
upon or entitled to support from him, or for any other purpose which the
court deems to be for the best interests of the ward, and the court may
approve the making on behalf of the ward of such agreements as the court
determines to be for the ward's best interests. The representative may
make disbursement of his ward's funds and estate directly to the ward or
other distributee or in such other manner and in such amounts as the court
directs. If the estate of a ward is derived in whole or in part from payments
of compensation, adjusted compensation, pension, insurance or other similar
benefits made directly to the estate by the Veterans Administration, notice of
the application for leave to invest or expend the ward's funds or estate,
together with a copy of the petition and proposed order, shall be given to the
Veterans' Administration Regional Office in this State at least 7 days before
the hearing on the application.
The court, upon petition of a guardian of the estate of a minor,
may permit the
guardian to make a will or create a revocable or irrevocable trust for the
minor that the court considers appropriate in light of changes in applicable
tax
laws that allow for minimization of State or federal income, estate, or
inheritance taxes; however, the will or trust
must make distributions only to the persons who would be entitled to
distributions if the minor were to die intestate and the will or trust must
make distributions to those persons in the same amounts to which they
would be entitled if the minor were to die intestate.
(c) Upon the direction of the court which issued his letters a
representative may perform the contracts of his ward which were legally
subsisting at the time of the commencement of the guardianship. The court may
authorize the guardian to execute and deliver any bill of sale, deed or other
instrument.
(d) The representative of the estate of a ward shall appear for and
represent the ward in all legal proceedings unless another person is appointed
for that purpose as representative or next friend. This does not impair the
power of any court to appoint a representative or next friend to defend the
interests of the ward in that court, or to appoint or allow any person as the
next friend of a ward to commence, prosecute or defend any proceeding in his
behalf. Any proceeding on behalf of a minor may be commenced and prosecuted by
his next friend, without any previous authority or appointment by the court if
the next friend enters bond for costs and files it in the court where the
proceeding is pending.
Without impairing the power of the court in any respect, if the
representative of the estate of a minor and another person as next friend shall
appear for and represent the minor in a legal proceeding in which the
compensation of the attorney or attorneys representing the guardian and next
friend is solely determined under a contingent fee arrangement, the guardian of
the estate of the minor shall not participate in or have any duty to review the
prosecution of the action, to participate in or review the appropriateness of
any settlement of the action, or to participate in or review any determination
of the
appropriateness of any fees awarded to the attorney or attorneys employed in
the prosecution of the action.
(e) Upon petition by any interested person (including the standby or
short-term guardian), with such notice to interested persons as the court
directs and a finding by the court that it is in the best interest of the
minor, the court may terminate or limit the authority of a standby or
short-term guardian or may enter such other orders as the court deems
necessary to provide for the best interest of the minor. The petition for
termination or limitation of the authority of a standby or short-term guardian
may, but need not, be combined with a petition to have a guardian appointed for
the minor.
(f) The court may grant leave to the guardian of a minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The guardian may not remove a minor from Illinois except as permitted under this Section and must seek leave of the court prior to removing a child for 30 days or more. The burden of proving that such removal is in the best interests of such child or children is on the guardian. When such removal is permitted, the court may require the guardian removing such child or children from Illinois to give reasonable security guaranteeing the return of such children. The court shall consider the wishes of the minor's parent or parents and the effect of removal on visitation and the wishes of the minor if he or she is 14 years of age or older. The court may not consider the availability of electronic communication as a factor in support of the removal of a child by the guardian from Illinois. The guardianship order may incorporate language governing removal of the minor from the State. Any order for removal, including one incorporated into the guardianship order, must include the date of the removal, the reason for removal, and the proposed residential and mailing address of the minor after removal. A copy of the order must be provided to any parent whose location is known, within 3 days of entry, either by personal delivery or by certified mail, return receipt requested. Before a minor child is temporarily removed from Illinois for more than 48 hours but less than 30 days, the guardian shall inform the parent or parents of the address and telephone number where the child may be reached during the period of temporary removal and the date on which the child shall return to Illinois. The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection. The guardianship order may incorporate language governing out-of-state travel with the minor. (Source: P.A. 101-329, eff. 8-9-19.)
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(755 ILCS 5/11-13.1)
Sec. 11-13.1. Duties of standby guardian of a minor.
(a) Before a standby guardian of a minor may act, the standby guardian must
be appointed by the court of the proper county and, in the case of a standby
guardian of the minor's estate, the standby guardian must give the bond
prescribed in subsection (d) of Section 11-5.3 and Section 12-2.
(b) The standby guardian shall not have any duties or authority to act until
the standby guardian receives knowledge of: (i) the death or consent of the
minor's
parent or parents or of the guardian of the person of the
minor; (ii)
the inability
of the minor's parent or parents
or of the guardian of the person of the minor
to make
and carry out day-to-day child care decisions concerning the minor for whom the
standby guardian has been appointed; or (iii) an administrative separation. This inability to make and carry out day-to-day child care decisions may be
communicated either by the parent's
or the guardian's
own admission or by the written
certification of the parent's
or guardian's
attending physician. Immediately upon receipt of
that knowledge, the standby guardian shall assume all duties as guardian of the
minor as previously determined by the order appointing the standby guardian,
and as set forth in Section 11-13, and the standby guardian of the person shall
have the authority to act as guardian of the person without direction of court
for a period of up to 60 days, provided that the authority of the standby
guardian may be limited or terminated by a court of competent jurisdiction.
(c) Within 60 days of the standby guardian's receipt of knowledge of (i)
the
death or consent of the minor's parent or parents
or guardian or (ii)
the inability of the
minor's parent or parents
or guardian
to make and carry out day-to-day child care decisions
concerning the minor, the standby guardian shall file or cause to be filed a
petition for the appointment of a guardian of the person or estate, or both, of
the minor under Section 11-5.
(Source: P.A. 101-120, eff. 7-23-19.)
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(755 ILCS 5/11-13.2)
Sec. 11-13.2. Duties of short-term guardian of a minor.
(a) Immediately upon the effective date of the appointment of a short-term
guardian, the short-term guardian shall assume all duties as short-term
guardian of the minor as provided in this Section. The short-term guardian of
the person shall have authority to act as short-term guardian, without
direction of court, for the duration of the appointment, which in no case shall
exceed a period of 365 days. The authority of the short-term guardian may be
limited or terminated by a court of competent jurisdiction.
(b) Unless further specifically limited by the instrument appointing the
short-term guardian, a short-term guardian shall have the authority to act as a
guardian of the person of a minor as prescribed in Section 11-13, but shall not
have any authority to act as guardian of the estate of a minor, except that a
short-term guardian shall have the authority to apply for and receive on behalf
of the minor benefits to which the child may be entitled from or under federal,
State, or local organizations or programs.
(Source: P.A. 95-568, eff. 6-1-08.)
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(755 ILCS 5/11-13.3)
Sec. 11-13.3.
Reliance on authority of guardian, standby guardian,
short-term guardian.
(a) Every health care provider and other person (reliant) has the right to
rely on any decision or direction made by the guardian, standby guardian, or
short-term guardian that is not clearly contrary to the law, to the same extent
and with the same effect as though the decision or direction had been made or
given by the parent. Any person dealing with the guardian, standby guardian,
or short-term guardian may presume in the absence of actual knowledge to the
contrary that the acts of the guardian, standby guardian, or short-term
guardian conform to the provisions of the law. A reliant shall not be
protected if the reliant has actual knowledge that the guardian, standby
guardian, or short-term guardian is not entitled to act or that any particular
action or inaction is contrary to the provisions of the law.
(b) A health care provider (provider) who relies on and carries out a
guardian's, standby guardian's, or short-term guardian's directions and who
acts with due care and in accordance with the law shall not be subject to any
claim based on lack of parental consent, or to criminal prosecution, or to
discipline for unprofessional conduct. Nothing in this Section shall be deemed
to protect a provider from liability for the provider's own negligence in the
performance of the provider's duties or in carrying out any instructions of the
guardian, standby guardian, or short-term guardian, and nothing in this Section
shall be deemed to alter the law of negligence as it applies to the acts of any
guardian, standby guardian, or short-term guardian or provider.
(c) A guardian, standby guardian, or short-term guardian who acts or
refrains from acting is not subject to criminal prosecution or any claim based
upon lack of his or her authority or failure to act, if the act or failure to
act was with due care and in accordance with law. The guardian, standby
guardian, or short-term guardian shall not be liable merely because he or she
may benefit from the act, has individual or conflicting interests in relation
to the care and affairs of the parent, or acts in a different manner with
respect to the parent's and guardian's, standby guardian's, or short-term
guardian's own care or interests.
(Source: P.A. 89-438, eff. 12-15-95.)
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(755 ILCS 5/11-14.1) (from Ch. 110 1/2, par. 11-14.1)
Sec. 11-14.1. Revocation of letters. (a) Upon the minor reaching the age
of majority, the letters of office shall be revoked only as to that minor
and the guardianship over that minor shall be terminated. The letters of
office and the guardianship shall remain as to any other minors included in the
same letters of office or guardianship order.
(b) Upon the filing of a petition by a minor's living, adoptive, or adjudicated parent whose parental rights have not been terminated, the court shall discharge the guardian and terminate the guardianship if the parent establishes, by a preponderance of the evidence, that a material change in the circumstances of the minor or the parent has occurred since the entry of the order appointing the guardian; unless the guardian establishes, by clear and convincing evidence, that termination of the guardianship would not be in the best interests of the minor. In determining the minor's best interests, the court shall consider all relevant factors including: (1) The interaction and interrelationship of the | ||
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(2) The ability of the parent to provide a safe, | ||
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(3) The relative stability of the parties and the | ||
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(4) The minor's adjustment to his or her home, | ||
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(5) The nature and extent of visitation between | ||
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(Source: P.A. 96-1338, eff. 1-1-11.)
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(755 ILCS 5/11-18) (from Ch. 110 1/2, par. 11-18)
Sec. 11-18.
Successor guardian.
Upon the death, incapacity, resignation
or removal of a standby guardian or a guardian, the court may appoint a
successor standby guardian or a successor guardian.
(Source: P.A. 88-529.)
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(755 ILCS 5/Art. XIa heading) ARTICLE XIa
GUARDIANS FOR ADULTS WITH DISABILITIES
(Source: P.A. 99-143, eff. 7-27-15.) |
(755 ILCS 5/11a-1) (from Ch. 110 1/2, par. 11a-1)
Sec. 11a-1. "Developmental disability", "intellectual disability", and "related condition" defined. "Developmental disability" means "developmental disability" as defined in Section 1-116 of the Mental Health and Developmental Disabilities Code. "Intellectual disability" means "intellectual disability" as defined in Section 1-116 of the Mental Health and Developmental Disabilities Code. "Related condition" means a condition that: (1) is attributable to cerebral palsy, epilepsy, or | ||
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(2) is manifested before the individual reaches age | ||
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(3) is likely to continue indefinitely; and (4) results in substantial functional limitation in 3 | ||
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(Source: P.A. 102-72, eff. 1-1-22; 102-109, eff. 1-1-22; 102-972, eff. 1-1-23.)
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(755 ILCS 5/11a-2) (from Ch. 110 1/2, par. 11a-2)
Sec. 11a-2. "Person with a disability" defined. "Person with a disability" means a person
18 years or older who (a) because of mental deterioration or physical
incapacity is not fully able to manage his person or estate, or (b) is a person
with mental illness or a person with a developmental disability and who because
of his mental illness or developmental disability is not fully able to manage
his person or estate, or (c) because of gambling, idleness, debauchery, or
excessive use of intoxicants or drugs, so spends or wastes his estate as to
expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects.
(Source: P.A. 102-813, eff. 5-13-22.)
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(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)
Sec. 11a-3. Adjudication of disability; Power to appoint guardian.
(a) Upon the filing of a petition by a reputable person or by the alleged
person with a disability himself or on its own motion, the court may adjudge a person
to be a person with a disability, but only if it has been demonstrated by clear and
convincing evidence that the person is a person with a disability as defined in Section
11a-2. If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated
by clear and convincing evidence that because of his disability he lacks
sufficient understanding or capacity
to make or communicate responsible decisions concerning the care of his
person, or (2) a guardian of his estate, if it has been demonstrated by clear
and convincing evidence that because of his disability he
is unable to manage his estate
or financial affairs, or (3) a guardian of his person and of his estate. The court may appoint co-guardians in accordance with Section 11a-15.
(b) Guardianship shall be utilized only as is necessary to promote
the well-being of the person with a disability, to protect him from neglect,
exploitation, or abuse, and to encourage development of his maximum
self-reliance and independence. Guardianship shall be ordered only to
the extent necessitated by the individual's actual mental, physical and
adaptive limitations. The order shall conform with Sections 11a-12 and 11a-14.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-3.1)
Sec. 11a-3.1. Appointment of standby guardian.
(a) The guardian of a person with a disability may designate in any writing,
including a will, a person qualified to
act under Section 11a-5 to be appointed as standby guardian of the person or
estate, or both, of the person with a disability. The
guardian may designate in any writing,
including a will, a person qualified to act under Section 11a-5 to be appointed
as successor standby guardian of the person or estate of the person with a disability, or
both. The designation must be witnessed by 2 or more credible witnesses at
least 18 years of age, neither of whom is the person designated as the
standby guardian. The designation may be proved by any competent evidence. If
the designation is executed and attested in the same manner as a will, it shall
have prima facie validity.
Prior to designating a proposed standby guardian, the guardian shall consult
with the person with a disability to determine the preference of the person with a disability as to
the person who will serve as standby guardian. The guardian shall give due
consideration to the preference of the person with a disability in selecting a standby
guardian.
(b) Upon the filing of a petition for the appointment of a standby guardian,
the court may appoint a standby guardian of the person or estate, or both, of
the person with a disability as the court finds to be in the best interests of the
person with a disability.
The court shall apply the same standards used in determining the suitability
of a plenary or limited guardian in determining the suitability of a standby
guardian, giving due consideration to the preference of the person with a disability as
to a standby guardian.
The court may not appoint the Office of State Guardian, pursuant to
Section 30 of the Guardianship and Advocacy Act, or a public guardian, pursuant
to Section 13-5 of this Act, as a standby guardian, without the written consent
of the State Guardian or public guardian or an authorized representative of the
State Guardian or public guardian.
(c) The standby guardian shall take and file an oath or affirmation that the
standby guardian will faithfully discharge the duties of the office of standby
guardian according to law, and shall file in and have approved by the court a
bond binding the standby guardian so to do, but shall not be required to file a
bond until the standby guardian assumes all duties as guardian of the person with a disability under Section 11a-18.2.
(d) The designation of a standby guardian may, but need not, be in the
following form:
DESIGNATION OF STANDBY GUARDIAN
[IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
A standby guardian is someone who has been appointed | ||
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1. Guardian and Ward. I, (insert name of designating | ||
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2. Standby Guardian. I hereby designate the | ||
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3. Successor Standby Guardian. If the person named | ||
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4. Date and Signature. This designation is made this | ||
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Signed: (designating guardian)
5. Witnesses. I saw the guardian sign this | ||
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[END OF FORM] (Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-3.2)
Sec. 11a-3.2. Short-term guardian.
(a) The guardian of a person with a disability
may appoint in writing, without court approval, a short-term guardian
of the person with a disability
to take over the guardian's duties, to the extent provided in Section
11a-18.3, each time the guardian is unavailable or unable to carry out those
duties. The guardian shall consult with the person with a disability to determine the
preference of the person with a disability concerning the person to be appointed as
short-term guardian and the guardian shall give due consideration to the
preference of the person with a disability in choosing a short-term guardian.
The written instrument appointing a short-term
guardian shall be dated and shall identify the appointing guardian, the
person with a disability, the person appointed to be the short-term guardian, and the
termination date of the appointment. The
written instrument shall be signed by, or at the direction of, the appointing
guardian in the presence of at least 2 credible witnesses at least 18 years of
age, neither of whom is the person appointed as the short-term guardian.
The person appointed as the short-term guardian shall also sign the written
instrument, but need not sign at the same time as the appointing guardian.
A guardian may not appoint the Office of State Guardian or a public guardian
as a short-term guardian, without the written consent of the State Guardian or
public guardian or an authorized representative of the State Guardian or public
guardian.
(b) The appointment of the short-term guardian is effective immediately upon
the date the written instrument is executed, unless the written instrument
provides for the appointment to become effective upon a later specified date or
event. A short-term guardian appointed by the guardian shall have authority to
act as guardian of the
person with a disability for a cumulative total of 60 days during any 12-month period.
Only one written instrument appointing a short-term guardian may be in force at
any given time.
(c) Every appointment of a short-term guardian may be amended or revoked by
the appointing guardian at any time and in any manner communicated to the
short-term guardian or to any other person. Any person other than the
short-term guardian to whom a revocation or amendment is communicated or
delivered shall make all reasonable
efforts to inform the short-term guardian of that fact as promptly as possible.
(d) The appointment of a short-term guardian or successor short-term
guardian does not affect the rights in the person with a disability of any guardian
other than the
appointing guardian.
(e) The written instrument appointing a short-term guardian may, but need
not, be in the following form:
APPOINTMENT OF SHORT-TERM GUARDIAN
[IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
By properly completing this form, a guardian is | ||
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1. Guardian and Ward. I, (insert name of appointing | ||
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2. Short-term Guardian. I hereby appoint the | ||
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3. Effective date. This appointment becomes | ||
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( ) On the date that I state in writing that I am no | ||
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( ) On the date that a physician familiar with my | ||
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( ) On the date that I am admitted as an in-patient | ||
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( ) On the following date: (insert date).
( ) Other: (insert other).
[NOTE: If this item is not completed, the | ||
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4. Termination. This appointment shall terminate on: | ||
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( ) On the date that I state in writing that I am | ||
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( ) On the date that a physician familiar with my | ||
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( ) On the date that I am discharged from the | ||
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( ) On the date which is (state a number of days) | ||
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( ) Other: (insert other).
[NOTE: If this item is not completed, the | ||
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5. Date and signature of appointing guardian. This | ||
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Signed: (appointing guardian)
6. Witnesses. I saw the guardian sign this | ||
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7. Acceptance of short-term guardian. I accept this | ||
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Signed: (short-term guardian)
[END OF FORM] (f) Each time the guardian appoints a short-term guardian, the guardian
shall: (i) provide the person with a disability with the name, address, and telephone
number of the short-term guardian; (ii) advise the person with a disability that he has
the right to object to the appointment of the short-term guardian by filing a
petition in court; and (iii) notify the person with a disability when the short-term
guardian will be taking over guardianship duties and the length of time that
the short-term guardian will be acting as guardian.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-4)
Sec. 11a-4. Temporary guardian. (a) Prior to the appointment of a guardian
under this Article, pending an appeal in relation to the
appointment, or
pending the
completion of a citation proceeding brought pursuant to Section 23-3 of this
Act,
or upon a guardian's death, incapacity, or resignation, the court may appoint a temporary guardian upon a showing of the necessity
therefor for the immediate welfare and protection of the alleged
person with a disability or his or her estate
and subject to such conditions as the court may prescribe. A petition for the appointment of a temporary guardian for an alleged person with a disability shall be filed at the time of or subsequent to the filing of a petition for adjudication of disability and appointment of a guardian. The petition for the appointment of a temporary guardian shall state the facts upon which it is based and the name, the post office address, and, in the case of an individual, the age and occupation of the proposed temporary guardian.
In determining the necessity for temporary guardianship, the immediate
welfare and protection of the alleged person with a disability and his or her estate
shall be
of paramount concern, and the interests of the petitioner, any care provider,
or any other party shall not outweigh the interests of the alleged person with a disability.
The temporary guardian shall have the limited powers and duties of a guardian
of the person or of the estate which are specifically enumerated by court
order. The court order shall state the actual harm identified by the court
that necessitates temporary guardianship or any extension thereof. (a-5) Notice of the time and place of the hearing on a petition for the appointment of a temporary guardian shall be given, not less than 3 days before the hearing, by mail or in person to the alleged person with a disability, to the proposed temporary guardian, and to those persons whose names and addresses are listed in the petition for adjudication of disability and appointment of a guardian under Section 11a-8. The court, upon a finding of good cause, may waive the notice requirement under this subsection. (a-10) Notice of the time and place of the hearing on a petition to revoke the appointment of a temporary guardian shall be given, not less than 3 days before the hearing, by mail or in person to the temporary guardian, to the petitioner on whose petition the temporary guardian was appointed, and to those persons whose names and addresses are listed in the petition for adjudication of disability and appointment of a guardian under Section 11a-8. The court, upon a finding of good cause, may waive the notice requirements under this subsection. (b) The temporary guardianship shall
expire within 60 days after the
appointment or whenever a guardian is regularly appointed, whichever occurs
first. No extension shall be granted except:
(1) In a case where there has been an adjudication of | ||
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(i) pending the disposition on appeal of an | ||
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(ii) pending the completion of a citation | ||
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(iii) pending the appointment of a successor | ||
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(iv) where the guardian's powers have been | ||
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(2) In a case where there has not been an | ||
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The ward shall have the right any time after the appointment
of a temporary guardian is made to petition the court to revoke the appointment
of the temporary guardian.
(Source: P.A. 102-72, eff. 1-1-22; 102-120, eff 7-23-21; 102-687, eff. 12-17-21.) |
(755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)
Sec. 11a-5. Who may act as guardian.
(a) A person is qualified to act as guardian of the person and as guardian of the
estate of a person with a disability if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the person with a disability and that the proposed guardian: (1) has attained the age of 18 years; (2) is a resident of the United States; (3) is not of unsound mind; (4) is not an adjudged person with a disability as | ||
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(5) has not been convicted of a felony, unless the | ||
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(b) Any public agency, or not-for-profit corporation found capable by
the court of providing an active and suitable program of guardianship for
the person with a disability, taking into consideration the nature of such person's
disability and the nature of such organization's services, may be appointed
guardian of the person or of the estate, or both, of the person with a disability.
The court shall not appoint as guardian an agency or employee of an agency that is directly
providing residential services to the ward. One person or agency may be
appointed guardian of the person and another person or agency appointed
guardian of the estate.
(b-5)(1) The court may appoint separate individuals or entities to act as the guardian of the person and the guardian of the estate of a person with a disability if the court finds it is in the best interests of the person with a disability that separate guardians be appointed. The court shall not appoint a separate person or entity to act as guardian of the person or guardian of the estate with a public guardian or the Office of State Guardian unless the public guardian or the Office of State Guardian agrees to such an appointment. (2) The court may appoint co-guardians to act as guardian of the person, guardian of the estate, or both the guardian of the person and the guardian of the estate if the court finds it is in the best interests of the person with a disability. When considering appointing co-guardians, the court shall consider the proposed co-guardians' history of cooperating and working together on behalf of the person with a disability. The court shall appoint only co-guardians who agree to serve together. The court shall not appoint a public guardian or the Office of State Guardian as a co-guardian for a person with a disability. (c) Any corporation qualified to accept and execute trusts in this State
may be appointed guardian or limited guardian of the estate of a person with a disability.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-5.1) Sec. 11a-5.1. Multiple guardianships. The court may not appoint an individual the guardian of the person or estate of an adult with disabilities before the individual has disclosed to the court the number of adults with disabilities over which the individual is currently appointed as guardian. If the court determines that an individual is appointed guardian over more than 5 adults with disabilities, then the court shall issue an order directing the circuit court clerk to notify the Guardianship and Advocacy Commission, in a form and manner prescribed by the Guardianship and Advocacy Commission. The clerk shall notify the Guardianship and Advocacy Commission no later than 7 days after the entry of the order. The Guardianship and Advocacy Commission shall maintain a list of all notifications it receives under this Section for reference by other agencies or units of government or the public. This Section does not apply to the Office of the State Guardian or a public guardian.
(Source: P.A. 100-659, eff. 1-1-19.) |
(755 ILCS 5/11a-6) (from Ch. 110 1/2, par. 11a-6)
Sec. 11a-6. Designation of Guardian.) A person, while of sound mind
and memory, may designate in writing a person, corporation or public agency
qualified to act under Section 11a-5, to be
appointed as guardian or as successor guardian of his person or of his
estate or both, in the event he is
adjudged to be a person with a disability. The designation may be proved
by any competent
evidence, but if it is executed and attested in the same manner as a
will, it shall have prima facie validity. If the court finds that the
appointment of the one designated will serve the best interests and
welfare of the ward, it shall make the appointment in accordance with
the designation. The selection of the guardian shall be in the
discretion of the court whether or not a designation is made.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-7) (from Ch. 110 1/2, par. 11a-7)
Sec. 11a-7.
Venue.) If the alleged ward is a resident of this State,
the proceeding shall be instituted in the court of the county in which he
resides. If the alleged ward is not a resident of this State, the proceeding
shall be instituted in the court of a county in which his real or personal
estate is located.
(Source: P.A. 80-1415.)
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(755 ILCS 5/11a-8) (from Ch. 110 1/2, par. 11a-8)
Sec. 11a-8. Petition. The petition
for adjudication of disability and for the
appointment of a guardian of the estate or the person or both of an alleged
person with a disability must state, if known or reasonably ascertainable: (a) the
relationship
and interest of the petitioner to the respondent; (b) the name, date of
birth, and place
of residence of the respondent; (c) the reasons for the guardianship;
(d) the name and post office address of the respondent's guardian, if
any, or of the respondent's agent or agents appointed under the Illinois
Power
of Attorney Act, if any; (e) the name and post office addresses of the
nearest relatives of
the respondent in the following order: (1) the spouse and adult
children, parents and adult brothers and
sisters, if any; if none, (2) nearest adult kindred known to
the
petitioner; (f) the name and address of the person with whom or the
facility in which the respondent is residing; (g) the approximate value
of the personal and real estate; (h) the amount of the anticipated annual gross
income and other receipts; (i) the name, post office address and in case
of an individual, the age, relationship to the respondent and occupation of
the proposed guardian.
In addition, if the petition seeks the appointment of a previously appointed
standby guardian as guardian of the person with a disability, the petition must also
state: (j) the facts concerning the standby guardian's previous appointment and
(k) the date of death of the guardian of the person with a disability or the facts concerning
the consent of the guardian of the person with a disability to the appointment of the standby
guardian as guardian, or the willingness and ability of the
guardian of the person with a disability to make and carry out day-to-day care decisions concerning the
person with a disability.
A petition for adjudication of disability and the appointment of a guardian
of the estate or the person
or both of an alleged person with a disability may not be dismissed or
withdrawn without
leave of the court. A petitioner who seeks to revoke or construe a power of attorney for the alleged person with a disability, or review the agent's conduct, shall do so in conformity with the Illinois Power of Attorney Act, and as set forth in subsection (c) of Section 11a-17 and subsection (e) of Section 11a-18 of this Act.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-8.1)
Sec. 11a-8.1. Petition for standby guardian of the person with a disability. The
petition for appointment of a standby guardian of the person or the estate, or
both, of a person with a disability must state, if known: (a) the name, date of birth,
and
residence of the person with a disability; (b) the names and post office addresses of
the nearest relatives of the person with a disability in the following order: (1) the
spouse and adult children, parents and adult brothers and sisters, if any; if
none, (2) nearest adult kindred known to the petitioner; (c) the name and post
office address of the
person having guardianship of the person with a disability, and of any person or persons
acting as agents of the person with a disability under
the Illinois Power of Attorney Act; (d) the name, post office
address, and, in case of any individual, the age and occupation of the proposed
standby guardian; (e) the preference of the person with a disability as to the choice of
standby guardian; (f) the facts concerning the consent of the guardian of the person with a disability to the appointment of the standby guardian, or the
willingness and ability of the guardian of the person with a disability to make and
carry out day-to-day care decisions concerning the person with a disability; (g) the
facts concerning the execution or admission to probate of the written
designation of the standby guardian, if any, a copy of which shall be attached
to or filed with the petition; (h) the facts concerning any guardianship
court actions pending concerning the person with a disability; and (i) the facts
concerning the willingness of the proposed standby
guardian to serve, and in the case of the Office of State Guardian and any
public guardian, evidence of a written acceptance to serve signed by the State
Guardian or public guardian or an authorized representative of the State
Guardian or public guardian, consistent with subsection (b) of Section
11a-3.1.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-9) (from Ch. 110 1/2, par. 11a-9)
Sec. 11a-9. Report. (a) The petition for adjudication of disability
and for appointment of a guardian
should be accompanied by a report which contains (1) a description of
the nature and type of the respondent's disability and an assessment of how
the disability impacts on the ability of the respondent to make decisions or
to function independently; (2) an analysis and results of evaluations of
the respondent's mental and physical condition and, where
appropriate, educational condition, adaptive behavior and social skills,
which have been performed within 3 months of the date of the filing of the
petition, or, in the case of an intellectual disability, a psychological evaluation of the respondent that has been performed by a clinical psychologist licensed under the Clinical Psychologist Licensing Act, within one year of the date of the filing of the petition; (3) an opinion as to whether guardianship is
needed, the type and scope of the guardianship needed, and the reasons
therefor; (4) a recommendation as to the most suitable living arrangement
and, where appropriate, treatment or habilitation plan for the respondent
and the reasons therefor; (5) the name, business address, business telephone number, and signatures of all persons who performed
the evaluations upon which the report is based, one of whom shall be
a licensed physician, or may, in the case of an intellectual disability, be a clinical psychologist licensed under the Clinical Psychologist Licensing Act, and a statement of the certification, license, or other
credentials that qualify the evaluators who prepared the report.
(b) If for any reason no report accompanies the petition, the court
shall order appropriate evaluations to be performed by a qualified
person or persons and a report prepared and filed with the court at least
10 days prior to the hearing.
(b-5) Upon oral or written motion by the respondent or the guardian ad
litem or upon the court's own motion, the court shall appoint one or more
independent experts to examine the respondent. Upon the filing with the
court of a verified statement of services rendered by the expert or
experts, the court shall determine a reasonable fee for the services
performed. If the respondent is unable to pay the fee, the court may
enter an order upon the petitioner to pay the entire fee or such
amount as
the respondent is unable to pay.
However, in cases where the Office of State Guardian is the petitioner,
consistent with Section 30 of the Guardianship and Advocacy Act, no expert
services fees shall be assessed against the Office of the State Guardian. (c) Unless the court otherwise directs, any report prepared pursuant
to this Section shall not be made
part of the public record of the proceedings but shall be available to
the court or an appellate court in which the proceedings are subject to
review, to the respondent, the petitioner, the guardian, and their
attorneys, to the
respondent's guardian ad litem, and to such other persons as the court
may direct.
Accessibility to a report prepared pursuant to this Section shall be in accordance with Section 5 of the Court Record and Document Accessibility Act. (Source: P.A. 102-109, eff. 1-1-22; 103-166, eff. 1-1-24.)
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(755 ILCS 5/11a-10) (from Ch. 110 1/2, par. 11a-10)
Sec. 11a-10. Procedures preliminary to hearing.
(a) Upon the filing of a petition pursuant to Section 11a-8, the court shall
set a date and place for hearing to take place within 30 days. The court
shall appoint a guardian ad litem to report to the court concerning the
respondent's best interests consistent with the provisions of this Section,
except that
the appointment of a guardian ad litem shall not be required when
the court determines that such appointment is not necessary for the protection
of the respondent or a reasonably informed decision on the petition.
If the guardian ad litem is not a licensed attorney, he or she shall be
qualified,
by
training or experience, to work with or advocate for persons with developmental disabilities, the mentally ill, persons with physical disabilities, the elderly, or persons with a disability due to mental deterioration, depending on the type of disability that is
alleged in the petition.
The court may allow the guardian ad litem reasonable compensation. The
guardian ad litem may consult with a person who by training or experience is
qualified to work with persons with a developmental disability, persons with
mental illness, persons with physical disabilities, or persons with a disability due to
mental deterioration, depending on the type of disability that is alleged.
The guardian ad litem shall personally observe the respondent prior to the
hearing and shall inform
him orally and in writing of the contents of the petition and of his rights, including providing a copy of the notice of rights required under subsection (e).
The guardian ad litem shall also attempt to elicit the respondent's position
concerning the adjudication of disability, the proposed guardian, a proposed
change in residential placement, changes in care that might result from the
guardianship, and other areas of inquiry deemed appropriate by the court.
Notwithstanding any provision in the Mental Health and Developmental Disabilities Confidentiality Act or any other law, a guardian ad litem shall have the right to inspect and copy any medical or mental health record of the respondent which the guardian ad litem deems necessary, provided that the information so disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings. At or before the hearing, the guardian ad litem shall file a written report
detailing his or her observations of the respondent, the responses of the
respondent to any of the inquiries detailed in this Section, the opinion of the
guardian
ad litem or other professionals with whom the guardian ad litem consulted
concerning the appropriateness of guardianship, and any other material issue
discovered by the guardian ad litem. The guardian ad litem shall appear at the
hearing and testify as to any issues presented in his or her report.
(b) The court (1) may appoint counsel for the respondent, if the court finds
that the interests of the respondent will be best served by the appointment,
and (2) shall appoint counsel upon the respondent's request or if the respondent
takes a position adverse to that of the guardian ad litem. The respondent
shall be permitted to obtain the appointment of counsel either at the hearing
or by any written or oral request communicated to the court prior to the
hearing. The summons shall inform the respondent of this right to obtain
appointed counsel. The court may allow counsel for the respondent reasonable
compensation.
(c) The allocation of guardian ad litem fees and costs is within the discretion of the court. No legal fees, appointed counsel fees, guardian ad litem fees, or costs shall be assessed against the Office of the State Guardian, the public guardian, an adult protective services agency, the Department of Children and Family Services, or the agency designated by the Governor under Section 1 of the Protection and Advocacy for Persons with Developmental Disabilities Act.
(d) The hearing may be held at such convenient place as the court directs,
including at a facility in which the respondent resides.
(e) Unless he is the petitioner, the respondent shall be personally
served with a copy of the petition and a summons not less than 14 days
before the hearing.
The summons shall be printed in large, bold type and shall include the
following:
NOTICE OF RIGHTS OF RESPONDENT
You have been named as a respondent in a guardianship petition asking that
you be declared a person with a disability. If the court grants the petition, a
guardian will be appointed for you. A copy of the guardianship petition is
attached for your convenience.
The date and time of the hearing are:The place where the hearing will occur is:The Judge's name and phone number is:
If a guardian is appointed for you, the guardian may be given the right to
make all
important personal decisions for you, such as where you may live, what medical
treatment you may receive, what places you may visit, and who may visit you. A
guardian may also be given the right to control and manage your money and other
property, including your home, if you own one. You may lose the right to make
these decisions for yourself.
You have the following legal rights:
(1) You have the right to be present at the court | ||
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(2) You have the right to be represented by a lawyer, | ||
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(3) You have the right to ask for a jury of six | ||
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(4) You have the right to present evidence to the | ||
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(5) You have the right to ask the Judge to appoint an | ||
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(6) You have the right to ask that the court hearing | ||
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(7) You have the right to tell the court whom you | ||
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(8) You have the right to ask a judge to find that | ||
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You do not have to attend the court hearing if you do not want to be there.
If you do not attend, the Judge may appoint a guardian if the Judge finds that
a guardian would be of benefit to you. The hearing will not be postponed or
canceled if you do not attend. If you are unable to attend the hearing in person or you will suffer harm if you attend, the Judge can decide to hold the hearing at a place that is convenient. The Judge can also follow the rule of the Supreme Court of this State, or its local equivalent, and decide if a video conference is appropriate.
IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO NOT WANT A
GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE PERSON NAMED IN THE GUARDIANSHIP
PETITION TO BE YOUR GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OR IF YOU HAVE ANY
OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND TELL THE
JUDGE.
Service of summons and the petition may be made by a private person 18
years
of
age or over who is not a party to the action.
[END OF FORM] (f) Notice of the time and place of the hearing shall be given by the
petitioner by mail or in person to those persons, including the proposed
guardian, whose names and addresses
appear in the petition and who do not waive notice, not less than 14 days
before the hearing.
(Source: P.A. 102-72, eff. 1-1-22; 102-191, eff. 1-1-22; 102-813, eff. 5-13-22.)
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(755 ILCS 5/11a-10.1) (from Ch. 110 1/2, par. 11a-10.1)
Sec. 11a-10.1. Domestic Violence: Order of Protection. An order of
protection, as defined in the Illinois Domestic Violence Act of 1986, may be issued in conjunction with a proceeding for
adjudication of disability and appointment of guardian if the petition for
an order of protection alleges that a person who is party to or the subject
of the proceeding has been abused by or has abused a family or household
member or has been neglected or exploited as defined in the Illinois
Domestic Violence Act of 1986.
If the subject of the order of protection is a high-risk adult with
disabilities for whom a guardian has been appointed, the court may appoint
a temporary substitute guardian under the provisions of this Act. The
court shall appoint a temporary substitute guardian if the appointed
guardian is named as a respondent in a petition for an order of protection
under the Illinois Domestic Violence Act of 1986. The
Illinois Domestic Violence Act of 1986 shall govern the issuance,
enforcement and recording of orders of protection issued under this Section.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-10.2)
Sec. 11a-10.2. Procedure for appointment of a standby guardian or a
guardian of a person with a disability. In any proceeding for the appointment of a
standby guardian or a guardian the court may appoint a guardian ad litem to
represent the person with a disability in the proceeding.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-11) (from Ch. 110 1/2, par. 11a-11)
Sec. 11a-11. Hearing.
(a) The respondent is entitled to be represented by counsel, to demand a
jury of 6 persons, to present evidence, and to confront and cross-examine all
witnesses. The hearing may be closed to the public on request of the
respondent, the guardian ad litem, or appointed or other counsel for the respondent. Unless excused by the court
upon a showing that the respondent refuses to be present or will suffer harm
if required to attend, the respondent shall be present
at the hearing.
(b) (Blank).
(c) (Blank).
(d) In an uncontested proceeding for the appointment of a guardian the
person who prepared the report required by Section 11a-9 will only be required
to testify at trial upon order of court for cause shown.
(e) At the hearing the court shall inquire regarding: (1) the nature
and extent of respondent's general intellectual and physical
functioning; (2) the extent of the impairment of his adaptive behavior
if he is a person with a developmental disability, or the nature and severity
of his mental illness if he is a person with mental illness; (3) the
understanding and capacity of the respondent to make and communicate
responsible decisions concerning his person; (4) the capacity of the respondent
to manage his estate and his financial affairs; (5) the appropriateness of
proposed and alternate living arrangements; (6) the impact of the
disability upon the respondent's functioning in the basic activities of daily
living and the important decisions faced by the respondent or normally faced by
adult members of the respondent's community; and (7) any other area of
inquiry deemed appropriate by the court.
(f) An authenticated transcript of the evidence taken in a judicial
proceeding concerning the respondent under the Mental Health and Developmental
Disabilities Code is admissible in evidence at the hearing.
(g) If the petition is for the appointment of a guardian for a
beneficiary of the Veterans Administration who has a disability, a certificate of
the Administrator of Veterans Affairs or his representative stating that
the beneficiary has been determined to be incompetent by the Veterans
Administration on examination in accordance with the laws and
regulations governing the Veterans Administration in effect upon the
date of the issuance of the certificate and that the appointment of a
guardian is a condition precedent to the payment of any money due the
beneficiary by the Veterans Administration, is admissible in evidence at the
hearing.
(Source: P.A. 98-1094, eff. 1-1-15; 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-11.5) Sec. 11a-11.5. Video conferencing. Any circuit court of this State may adopt rules consistent with the rules of the Supreme Court of this State permitting the use of video conferencing equipment in any hearing under Section 11a-11. No rule shall preclude a party from seeking the presentation of testimony in accordance with Supreme Court Rule 241.
(Source: P.A. 100-427, eff. 1-1-18.) |
(755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)
Sec. 11a-12. Order of appointment. (a) If basis for the
appointment of a guardian as specified in Section 11a-3 is not found,
the court shall dismiss the petition.
(b) If the respondent is adjudged to be a person with a disability and to lack some but not all of the capacity as specified in Section 11a-3, and if the court finds that
guardianship is necessary for the protection of the person with a disability, his or her estate, or both, the court shall appoint a
limited guardian for the respondent's person or estate or both. The
court shall enter a written order stating
the factual basis for its findings and specifying the duties and powers of the guardian and the legal disabilities to which the respondent is subject.
(c) If the respondent is adjudged to be a person with a disability and to be totally without capacity as specified in Section 11a-3, and if the court finds
that limited guardianship will not provide sufficient protection for the person with a disability, his
or her estate, or both, the court shall
appoint a plenary guardian for the respondent's person or estate or both.
The court shall enter a written order stating the factual basis
for its findings.
(d) The selection of the guardian shall be in the discretion
of the court, which shall give due consideration to the preference of the
person with a disability as to a guardian, as well as the qualifications of the
proposed guardian, in making its appointment. However, the paramount concern in the selection of the guardian is the best interests and well-being of the person with a disability.
One person or agency may be appointed a limited or plenary guardian of the person and another person or corporate trustee appointed as a limited or plenary guardian of the estate. If different persons are appointed, the court shall consider the factors set forth in subsection (b-5) of Section 11a-5. The court shall enter a written order stating the factual basis for its findings. (e) The order of appointment of a guardian of the person shall include the requirement that the guardian of the person complete the training program as provided in Section 33.5 of the Guardianship and Advocacy Act that outlines the responsibilities of the guardian of the person and the rights of the person under guardianship and file with the court a certificate of completion one year from the date of issuance of the letters of guardianship, except that: (1) the chief judge of any circuit may order implementation of another training program by a suitable provider containing substantially similar content; (2) employees of the Office of the State Guardian, public guardians, attorneys currently authorized to practice law, corporate fiduciaries, and persons certified by the Center for Guardianship Certification are exempt from this training requirement; and (3) the court may, for good cause shown, exempt from this requirement an individual not otherwise listed in item (2). For the purposes of this subsection (e), good cause may be proven by affidavit. If the court finds good cause to exempt an individual from the training requirement, the order of appointment shall so state. (Source: P.A. 102-72, eff. 1-1-22; 102-770, eff. 1-1-23.)
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(755 ILCS 5/11a-13) (from Ch. 110 1/2, par. 11a-13)
Sec. 11a-13. Costs in certain cases.) (a) No costs may be taxed or charged
by any public officer in any proceeding for the appointment of a
guardian or for any subsequent proceeding or report made in pursuance of
the appointment when the primary purpose of the appointment is as set forth
in Section 11-11 or is the management of the estate of a person with a mental disability who resides
in a state mental health or developmental disabilities facility when the
value of the personal estate does not exceed $1,000.
(b) No costs shall be taxed or charged against the Office of the State
Guardian by any public officer in any proceeding for the appointment of
a guardian or for any subsequent proceeding or report made in pursuance
of the appointment.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-13.5) Sec. 11a-13.5. Guardian fees. A guardian is entitled to reasonable and appropriate compensation for services related to guardianship duties, but all fees must be reviewed and approved by the court pursuant to a fee petition. In considering the reasonableness of any fee petition brought by a guardian under this Section, the court shall consider the following: (1) the powers and duties assigned to the guardian | ||
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(2) the necessity of any services provided; (3) the time required, the degree of difficulty, | ||
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(4) the needs of the ward and the costs of | ||
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(5) other facts and circumstances material to the | ||
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Upon the death of the ward, fees and costs awarded under this Section shall be considered as a first-class claim for administrative expenses as set forth in Section 18-10 and may be paid from the guardianship estate or from the decedent's estate.
(Source: P.A. 102-72, eff. 1-1-22.) |
(755 ILCS 5/11a-14) (from Ch. 110 1/2, par. 11a-14)
Sec. 11a-14.
Legal disabilities of ward.) (a) An order appointing a
limited guardian of the person under this Article removes from the
ward only that authority provided under Section 11a-17
which is specifically conferred on the limited guardian by the order.
(b) An order appointing a limited guardian of the estate under this
Article confers on the limited guardian the authority provided under Section
11a-18 not specifically reserved to the ward.
(c) The appointment of a limited guardian under this Article
shall not constitute a finding of legal incompetence.
(d) An order appointing a plenary guardian under this Article confers
on the plenary guardian
of the person the authority provided under Section 11a-17 and on the plenary
guardian of the estate the authority provided under Section 11a-18.
(Source: P.A. 81-795.)
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(755 ILCS 5/11a-14.1) (from Ch. 110 1/2, par. 11a-14.1)
Sec. 11a-14.1.
Residential placement.) No guardian appointed under this
Article, except for duly appointed Public Guardians and the Office of State
Guardian, shall have the power, unless specified by court order, to place
his ward in a residential facility. The guardianship order may specify
the conditions on which the guardian may admit the ward to a residential
facility without further court order.
In making residential placement decisions, the guardian shall
make decisions in conformity with the preferences of the ward unless the
guardian is reasonably certain that the decisions will result in substantial
harm to the ward or to the ward's estate. When the preferences of the ward
cannot be ascertained or where they will result in substantial harm to the
ward or to the ward's estate, the guardian shall make decisions with respect to
the ward's placement which are in the best interests of the ward.
The guardian
shall not remove the ward from his or her home or separate the ward from family
and friends unless such removal is necessary to prevent substantial harm to the
ward
or to the ward's estate.
The guardian
shall have a duty to investigate the availability of reasonable residential
alternatives. The guardian shall monitor the placement of the ward on an
on-going basis to ensure its continued appropriateness, and shall pursue
appropriate alternatives as needed.
(Source: P.A. 90-250, eff. 7-29-97.)
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(755 ILCS 5/11a-15) (from Ch. 110 1/2, par. 11a-15) (Text of Section before amendment by P.A. 103-740) Sec. 11a-15. Successor guardian.) Upon the death, incapacity, resignation or removal of a guardian of the estate or person of a living ward, the court shall appoint a successor guardian or terminate the adjudication of disability. The powers and duties of the successor guardian shall be the same as those of the predecessor guardian unless otherwise modified.(Source: P.A. 81-795.) (Text of Section after amendment by P.A. 103-740) Sec. 11a-15. Successor guardian.) Upon the death, incapacity, resignation or removal of a guardian of the estate or person of a living ward, the court shall appoint a successor guardian or terminate the adjudication of disability. The powers and duties of the successor guardian shall be the same as those of the predecessor guardian unless otherwise modified. Notice of the time and place of the hearing on a petition for the appointment of a successor guardian shall be given not less than 3 days before the hearing for a successor to a temporary guardian and not less than 14 days before the hearing for a successor to a limited or plenary guardian. The notice shall be by mail or in person to the alleged person with a disability, to the proposed successor guardian, and to those persons whose names and addresses are listed in the petition for adjudication of disability and appointment of a guardian under Section 11a-8. The court, upon a finding of good cause, may waive the notice requirement under this Section. (Source: P.A. 103-740, eff. 1-1-25.) |
(755 ILCS 5/11a-16) (from Ch. 110 1/2, par. 11a-16)
Sec. 11a-16. Testamentary guardian.) A parent of a person with a disability may
designate
by will a person, corporation or public agency qualified to act under
Section 11a-5, to be appointed as guardian or as successor guardian of the
person or of the estate or both of that person. If a conservator appointed
under a prior law or a guardian appointed under this Article is acting at
the time of the death of the parent, the designation shall become effective
only upon the death, incapacity, resignation or removal of the conservator
or guardian. If no conservator or guardian is acting at the time of the
death of the parent, the person, corporation or public agency so designated
or any other person may petition the court having jurisdiction over the
person or estate or both of the child for the appointment of the one so
designated. The designation shall be proved in the manner provided for
proof of will. Admission of the will to probate in any other jurisdiction
shall be conclusive proof of the validity of the designation. If the court
finds that the appointment of the one so designated will serve the best
interests and welfare of the ward, it shall appoint the one so designated.
The selection of a guardian shall be in the discretion of the court, whether
or not a designation is made.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)
Sec. 11a-17. Duties of personal guardian.
(a) To the extent ordered by the court and under the direction of the
court, the guardian of the person shall have custody of the ward and the
ward's minor and adult dependent children and shall procure for them and shall
make provision for their support, care, comfort, health, education and
maintenance, and professional services as are appropriate, but the ward's
spouse may not be deprived of the custody and education of the ward's minor
and adult dependent children, without the consent of the spouse, unless the
court finds that the spouse is not a fit and competent person to have that
custody and education. The guardian shall assist the ward in the
development of maximum self-reliance and independence. The guardian of the
person may petition the court for an order directing the guardian of the
estate to pay an amount periodically for the provision of the services
specified by the court order. If the ward's estate is insufficient to
provide for education and the guardian of the ward's person fails to
provide education, the court may award the custody of the ward to some
other person for the purpose of providing education. If a person makes a
settlement upon or provision for the support or education of a ward, the
court may make an order for the visitation of the ward by the person making
the settlement or provision as the court deems proper. A guardian of the person may not admit a ward to a mental health facility except at the ward's request as provided in Article IV of the Mental Health and Developmental Disabilities Code and unless the ward has the capacity to consent to such admission as provided in Article IV of the Mental Health and Developmental Disabilities Code.
(a-3) If a guardian of an estate has not been appointed, the guardian of the person may, without an order of court, open, maintain, and transfer funds to an ABLE account on behalf of the ward and the ward's minor and adult dependent children as specified under Section 16.6 of the State Treasurer Act. (a-5) If the ward filed a petition for dissolution of marriage under the
Illinois
Marriage and Dissolution of Marriage Act before the ward was adjudicated a
person with a disability under this Article, the guardian of the ward's person and estate may
maintain that
action for
dissolution of marriage on behalf of the ward. Upon petition by the guardian of the ward's person or estate, the court may authorize and direct a guardian of the ward's person or estate to file a petition for dissolution of marriage or to file a petition for legal separation or declaration of invalidity of marriage under the Illinois Marriage and Dissolution of Marriage Act on behalf of the ward if the court finds by clear and convincing evidence that the relief sought is in the ward's best interests. In making its determination, the court shall consider the standards set forth in subsection (e) of this Section. (a-10) Upon petition by the guardian of the ward's person or estate, the court may authorize and direct a guardian of the ward's person or estate to consent, on behalf of the ward, to the ward's marriage pursuant to Part II of the Illinois Marriage and Dissolution of Marriage Act if the court finds by clear and convincing evidence that the marriage is in the ward's best interests. In making its determination, the court shall consider the standards set forth in subsection (e) of this Section. Upon presentation of a court order authorizing and directing a guardian of the ward's person and estate to consent to the ward's marriage, the county clerk shall accept the guardian's application, appearance, and signature on behalf of the ward for purposes of issuing a license to marry under Section 203 of the Illinois Marriage and Dissolution of Marriage Act.
(b) If the court directs, the guardian of the person shall file
with the court at intervals indicated by the court, a report that
shall state briefly: (1) the current mental, physical, and social
condition of the ward and the ward's minor and adult dependent children; (2)
their present living arrangement, and a description and the address of
every residence where they lived during the reporting period and the length
of stay at each place; (3) a summary of the medical, educational,
vocational, and other professional services given to them; (4) a resume of
the guardian's visits with and activities on behalf of the ward and the ward's
minor and adult dependent children; (5) a recommendation as to the need for
continued guardianship; (6) any other information requested by the court or
useful in the opinion of the guardian. The Office of the State Guardian
shall assist the guardian in filing the report when requested by the
guardian. The court may take such action as it deems appropriate pursuant
to the report.
(c) Absent court order pursuant to the Illinois Power of Attorney Act
directing a guardian to exercise powers of the principal under an agency
that survives disability, the guardian has no power, duty, or liability
with respect to any personal or health care matters covered by the agency.
This subsection (c) applies to all agencies, whenever and wherever executed.
(d) A guardian acting as a surrogate decision maker under the Health
Care Surrogate Act shall have all the rights of a surrogate under that Act
without court order including the right to make medical treatment decisions
such as decisions to forgo or withdraw life-sustaining treatment.
Any decisions by the guardian to forgo or withdraw life-sustaining treatment
that are not authorized under the Health Care Surrogate Act shall require a
court order. Nothing in this Section shall prevent an agent acting under a
power of attorney for health care from exercising his or her authority under
the Illinois Power of Attorney Act without further court order, unless a court
has acted under Section 2-10 of the Illinois Power of Attorney Act. If a
guardian is also a health care agent for the ward under a valid power of
attorney for health care, the guardian acting as agent may execute his or her
authority under that act without further court order.
(e) Decisions made by a guardian on behalf of a ward shall be made in
accordance with the following
standards for decision making. The guardian shall consider the ward's current preferences to the extent the ward has the ability to participate in decision making when those preferences are known or reasonably ascertainable by the guardian. Decisions by the guardian shall conform to the ward's current preferences:
(1) unless the guardian reasonably believes that doing
so would result in substantial harm to the ward's welfare or personal or financial interests; and
(2) so long as such decisions give substantial weight to what the ward, if
competent, would have done or intended under the circumstances, taking into
account evidence that includes, but is not limited to, the ward's personal,
philosophical, religious and moral beliefs, and ethical values relative to the
decision to be made by the guardian. Where possible, the guardian shall
determine how the ward would have made a decision based on the ward's
previously expressed preferences, and make decisions in accordance with the
preferences of the ward. If the ward's wishes are unknown and remain unknown
after reasonable efforts to discern them, or if the guardian reasonably believes that a decision made in conformity with the ward's preferences would result in substantial harm to the ward's welfare or personal or financial interests, the decision shall be made on the
basis of the ward's best interests as determined by the guardian. In
determining the ward's best interests, the guardian shall weigh the reason for
and nature of the proposed action, the benefit or necessity of the action, the
possible risks and other consequences of the proposed action, and any available
alternatives and their risks, consequences and benefits, and shall take into
account any other information, including the views of family and friends, that
the guardian believes the ward would have considered if able to act for herself
or himself.
(f) Upon petition by any interested person (including the standby or
short-term guardian), with such notice to interested persons as the court
directs and a finding by the court that it is in the best interests of the
person with a disability, the court may terminate or limit the authority of a standby or
short-term guardian or may enter such other orders as the court deems necessary
to provide for the best interests of the person with a disability. The petition
for termination or limitation of the authority of a standby or short-term
guardian may, but need not, be combined with a petition to have another
guardian appointed for the person with a disability. (g)(1) Unless there is a court order to the contrary, the guardian, consistent with the standards set forth in subsection (e) of this Section, shall use reasonable efforts to notify the ward's known adult children, who have requested notification and provided contact information, of the ward's admission to a hospital, hospice, or palliative care program, the ward's death, and the arrangements for the disposition of the ward's remains. (2) If a guardian unreasonably prevents an adult child, spouse, adult grandchild, parent, or adult sibling of the ward from visiting the ward, the court, upon a verified petition, may order the guardian to permit visitation between the ward and the adult child, spouse, adult grandchild, parent, or adult sibling. In making its determination, the court shall consider the standards set forth in subsection (e) of this Section. The court shall not allow visitation if the court finds that the ward has capacity to evaluate and communicate decisions regarding visitation and expresses a desire not to have visitation with the petitioner. This subsection (g) does not apply to duly appointed public guardians or the Office of State Guardian.
(Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22; 102-258, eff. 8-6-21; 102-813, eff. 5-13-22.)
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(755 ILCS 5/11a-17.1) Sec. 11a-17.1. Sterilization of ward. (a) A guardian of the person shall not consent to the sterilization of the ward without first obtaining an order from the court granting the guardian the authority to provide consent. For purposes of this Article XIa, "sterilization" means any procedure that has as its purpose rendering the ward permanently incapable of reproduction; provided, however, that an order from the court is not required for a procedure that is medically necessary to preserve the life of the ward or to prevent serious impairment to the health of the ward and which may result in sterilization. (b) A guardian seeking authority to consent to the sterilization of the ward shall seek such authority by filing a verified motion. The verified motion shall allege facts which demonstrate that the proposed sterilization is warranted under subsection (f), (g) or (h) of this Section. The guardian ad litem will notify the ward of the motion in the manner set forth in subsection (c) of this Section. (c) Upon the filing of a verified motion for authority to consent to sterilization, the court shall appoint a guardian ad litem to report to the court consistent with the provisions of this Section. If the guardian ad litem is not a licensed attorney, he or she shall be qualified, by training or experience, to work with or advocate for persons with a developmental disability, mental illness, physical disability, or disability because of mental deterioration, depending on the type of disability of the ward that is alleged in the motion. The court may allow the guardian ad litem reasonable compensation. The guardian ad litem may consult with a person who by training or experience is qualified to work with persons with a developmental disability, mental illness, physical disability, or disability because of mental deterioration, depending on the type of disability of the ward that is alleged. The guardian ad litem may also consult with health care providers knowledgeable about reproductive health matters including sterilization, other forms of contraception, and childbirth. Outside the presence of the guardian, the guardian ad litem shall personally observe the ward prior to the hearing and shall inform the ward orally and in writing of the contents of the verified motion for authority to consent to sterilization. Outside the presence of the guardian, the guardian ad litem shall also attempt to elicit the ward's position concerning the motion, and any other areas of inquiry deemed appropriate by the court. At or before the hearing, the guardian ad litem shall file a written report detailing his or her observations of the ward; the responses of the ward to any of the inquiries detailed in this Section; the opinion of the guardian ad litem and any other professionals with whom the guardian ad litem consulted concerning the ward's understanding of and desire for or objection to, as well as what is in the ward's best interests relative to, sterilization, other forms of contraception, and childbirth; and any other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify, and may present witnesses, as to any issues presented in his or her report. (d) The court (1) may appoint counsel for the ward if the court finds that the interests of the ward will be best served by the appointment, and (2) shall appoint counsel upon the ward's request, if the ward is objecting to the proposed sterilization, or if the ward takes a position adverse to that of the guardian ad litem. The ward shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing. The court shall inform the ward of this right to obtain appointed counsel. The court may allow counsel for the ward reasonable compensation. (e) The court shall order a medical and psychological evaluation of the ward. The evaluation shall address the ward's decision-making capacity with respect to the proposed sterilization, the existence of any less permanent alternatives, and any other material issue. (f) The court shall determine, as a threshold inquiry, whether the ward has capacity to consent or withhold consent to the proposed sterilization and, if the ward lacks such capacity, whether the ward is likely to regain such capacity. The ward shall not be deemed to lack such capacity solely on the basis of the adjudication of disability and appointment of a guardian. In determining capacity, the court shall consider whether the ward is able, after being provided appropriate information, to understand the relationship between sexual activity and reproduction; the consequences of reproduction; and the nature and consequences of the proposed sterilization procedure. If the court finds that (1) the ward has capacity to consent or withhold consent to the proposed sterilization, and (2) the ward objects or consents to the procedure, the court shall enter an order consistent with the ward's objection or consent and the proceedings on the verified motion shall be terminated. (g) If the court finds that the ward does not have capacity to consent or withhold consent to the proposed sterilization and is unlikely to regain such capacity, the court shall determine whether the ward is expressing a clear desire for the proposed sterilization. If the ward is expressing a clear desire for the proposed sterilization, the court's decision regarding the proposed sterilization shall be made in accordance with the standards set forth in subsection (e) of Section 11a-17 of this Act. (h) If the court finds that the ward does not have capacity to consent or withhold consent to the proposed sterilization and is unlikely to regain such capacity, and that the ward is not expressing a clear desire for the proposed sterilization, the court shall consider the standards set forth in subsection (e) of Section 11a-17 of this Act and enter written findings of fact and conclusions of law addressing those standards. In addition, the court shall not authorize the guardian to consent to the proposed sterilization unless the court finds, by clear and convincing evidence and based on written findings of fact and conclusions of law, that all of the following factors are present: (1) The ward lacks decisional capacity regarding the | ||
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(2) The ward is fertile and capable of procreation. (3) The benefits to the ward of the proposed | ||
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(4) The court has considered less intrusive | ||
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(5) The proposed sterilization is in the best | ||
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(A) The possibility that the ward will | ||
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(B) The ward is or is likely to become sexually | ||
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(C) The inability of the ward to understand | ||
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(D) Any other factors that assist the court in | ||
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(Source: P.A. 102-72, eff. 1-1-22.) |
(755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
Sec. 11a-18. Duties of the estate guardian.
(a) To the extent
specified in the order establishing the guardianship, the guardian of
the estate shall have the care, management and
investment of the estate, shall manage the estate frugally and shall
apply the income and principal of the estate so far as necessary for the
comfort and suitable support and education of the ward, his minor and adult
dependent children, and persons related by blood or marriage
who are dependent upon or entitled to support from him, or for any other
purpose which the court deems to be for the best interests of the ward,
and the court may approve the making on behalf of the ward of such
agreements as the court determines to be for the ward's best interests.
The guardian may make disbursement of his ward's
funds and estate directly to the ward or other distributee or in such
other manner and in such amounts as the court directs. If the estate of
a ward is derived in whole or in part from payments of compensation,
adjusted compensation, pension, insurance or other similar benefits made
directly to the estate by the Veterans Administration, notice of the
application for leave to invest or expend the ward's funds or estate,
together with a copy of the petition and proposed order, shall be given
to the Veterans' Administration Regional Office in this State at least 7
days before the hearing on the application.
(a-5) The probate court, upon petition of a guardian, other than the
guardian of a minor, and after notice to all other persons interested as the
court directs, may authorize the guardian to exercise any or all powers over
the estate and business affairs of the ward that the ward could exercise if
present and not under disability. The court may authorize the taking of an
action or the application of funds not required for the ward's current and
future maintenance
and support in any manner approved by the court as being in keeping with the
ward's wishes so far as they can be ascertained. The court must consider the
permanence of the ward's disabling condition and the natural objects of the
ward's bounty. In ascertaining and carrying
out the ward's wishes the court may consider, but shall not be limited to,
minimization of State or federal income, estate, or inheritance taxes; and
providing gifts to charities, relatives, and friends that would be likely
recipients of donations from the ward. The ward's wishes as best they can be
ascertained shall be carried out, whether or not tax savings are involved.
Actions or applications of funds may include, but shall not be limited to, the
following:
(1) making gifts of income or principal, or both, of | ||
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(2) conveying, releasing, or disclaiming his or her | ||
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(3) releasing or disclaiming his or her powers as | ||
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(4) exercising, releasing, or disclaiming his or her | ||
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(5) entering into contracts;
(6) creating for the benefit of the ward or others, | ||
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(7) exercising options of the ward to purchase or | ||
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(8) exercising the rights of the ward to elect | ||
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(i) life insurance policies, plans, or benefits,
(ii) annuity policies, plans, or benefits,
(iii) mutual fund and other dividend investment | ||
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(iv) retirement, profit sharing, and employee | ||
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(9) exercising his or her right to claim or disclaim | ||
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(10) changing the ward's residence or domicile; or
(11) modifying by means of codicil or trust amendment | ||
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The guardian in his or her petition shall briefly outline the action or
application of funds for which he or she seeks approval, the results expected
to be accomplished thereby, and the tax savings, if any, expected to accrue.
The proposed action or application of funds may include gifts of the ward's
personal property or real estate, but transfers of real estate shall be subject
to the requirements of Section 20 of this Act. Gifts may be for
the benefit of prospective legatees, devisees, or heirs apparent of the ward
or may be made to individuals or charities in which the ward is believed to
have an interest. The guardian shall also indicate in the petition that any
planned disposition is consistent with the intentions of the ward insofar as
they can be ascertained, and if the ward's intentions cannot be ascertained,
the ward will be presumed to favor reduction in the incidents of various forms
of taxation and the partial distribution of his or her estate as provided in
this subsection. The guardian shall not, however, be required to include as
a beneficiary or fiduciary any person who he has reason to believe would be
excluded by the ward. A guardian shall be required to investigate and pursue
a ward's eligibility for governmental benefits.
(a-6) The guardian may, without an order of court, open, maintain, and transfer funds to an ABLE account on behalf of the ward and the ward's minor and adult dependent children as specified under Section 16.6 of the State Treasurer Act. (b) Upon the direction of the court which issued his letters,
a guardian may perform the contracts of his ward which were
legally subsisting at the time of the commencement of the ward's
disability. The court may authorize the guardian to execute and deliver
any bill of sale, deed or other instrument.
(c) The guardian of the estate of a ward shall
appear for and represent the ward in all legal proceedings unless another
person is appointed for that purpose as guardian or next friend. This does not
impair the power of any court to appoint a guardian ad litem or next friend
to defend the interests of the ward in that court, or to appoint or allow any
person as the next friend of a ward to commence, prosecute or defend any
proceeding in his behalf. Without impairing the power of the court in any
respect, if the guardian of the estate of a ward and another person as next
friend shall appear for and represent the ward in a legal proceeding in which
the compensation of the attorney or attorneys representing the guardian and
next friend is solely determined under a contingent fee arrangement, the
guardian of the estate of the ward shall not participate in or have any duty
to review the prosecution of the action, to participate in or review the
appropriateness of any settlement of the action, or to participate in or review
any determination of the appropriateness of any fees awarded to the attorney or
attorneys employed in the prosecution of the action.
(d) Adjudication of disability shall not revoke or
otherwise terminate a trust which is revocable by the ward. A guardian of the
estate shall have no authority to revoke a trust that is revocable by the
ward, except that the court may authorize a guardian to revoke a Totten trust
or similar deposit or withdrawable capital account in trust to the extent
necessary to provide funds for the purposes specified in paragraph (a) of
this Section. If the trustee of any trust for the benefit of the ward has
discretionary power to apply income or principal for the ward's benefit,
the trustee shall not be required to distribute any of the income or principal
to the guardian of the ward's estate, but the guardian may
bring an action on behalf of the ward to compel
the trustee to exercise the trustee's discretion or to seek relief from
an abuse of discretion. This paragraph shall not limit the right of a
guardian of the estate to receive accountings from the trustee
on behalf of the ward.
(d-5) Upon a verified petition by the plenary or limited guardian of the estate or the request of the ward that is accompanied by a current physician's report that states the ward possesses testamentary capacity, the court may enter an order authorizing the ward to execute a will or codicil. In so ordering, the court shall authorize the guardian to retain independent counsel for the ward with whom the ward may execute or modify a will or codicil. (e) Absent court order pursuant to the Illinois Power of Attorney
Act directing a guardian to exercise
powers of the principal under an agency that survives disability, the
guardian will have no power, duty or liability with respect to any property
subject to the agency. This subsection (e) applies to all agencies,
whenever and wherever executed.
(f) Upon petition by any interested person (including the standby or
short-term guardian), with such notice to interested persons as the court
directs and a finding by the court that it is in the best interests of the
person with a disability, the court may terminate or limit the authority of a standby or
short-term guardian or may enter such other orders as the court deems necessary
to provide for the best interests of the person with a disability. The petition for
termination or limitation of the authority of a standby or short-term guardian
may, but need not, be combined with a petition to have another guardian
appointed for the person with a disability.
(Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-18.1) (from Ch. 110 1/2, par. 11a-18.1)
Sec. 11a-18.1. Conditional gifts. (a) The court may authorize and
direct the guardian of the estate to make conditional gifts from the estate
of a person with a disability to any spouse, parent, brother or sister of the person with a disability who dedicates himself or herself to the care of the person with a disability
by living with and personally caring for the person with a disability for at least 3
years. It shall be presumed that the person with a disability intends to make such
conditional gifts.
(b) A conditional gift shall not be distributed to the donee until the
death of the person with a disability. The court may impose such other conditions
on the gift as the court deems just and reasonable. The court may provide
for an alternate disposition of the gift should the donee die before the
person with a disability; provided that if no such alternate disposition is made,
the conditional gift shall lapse upon the death of the donee prior to the
death of the person with a disability. A conditional gift may be modified or
revoked by the court at any time.
(c) The guardian of the estate, the spouse, parent, brother or sister of
a person with a disability, or any other interested person may petition the court to
authorize and direct the guardian of the estate to make a conditional gift
or to modify, revoke or distribute a conditional gift. All persons who
would be heirs of the person with a disability if the person with a disability died on the
date the petition is filed (or the heirs if the person with a disability is
deceased) and all legatees under any known last will of the person with a disability
shall be given reasonable notice of the hearing on the petition by
certified U. S. mail, return receipt requested. If a trustee is a legatee,
notice shall be given to the trustee and need not be given to the trust
beneficiaries. Any person entitled to notice of the hearing may appear and
object to the petition. The giving of the notice of the hearing to those
persons entitled to notice shall cause the decision and order of the court
to be binding upon all other persons who otherwise may
be interested or may become interested in the estate of the person with a disability.
(d) The guardian of the estate shall set aside conditional gifts in a
separate fund for each donee and shall hold and invest each fund as part of
the estate of the person with a disability. Upon order of the court, any conditional gift
may be revoked or modified in whole or part so that the assets may be used
for the care and comfort of the person with a disability should funds otherwise
available for such purposes be inadequate.
(e) Upon the death of the person with a disability, the guardian of the estate
shall hold each special fund as trustee and shall petition the court for
authorization to distribute the special fund and for any other appropriate
relief. The court shall order distribution upon such terms and conditions
as the court deems just and reasonable.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-18.2)
Sec. 11a-18.2. Duties of standby guardian of a person with a disability.
(a) Before a standby guardian of a person with a disability may act, the standby
guardian must be appointed by the court of the proper county and, in the case
of a standby guardian of the estate of the person with a disability, the standby guardian
must give the bond prescribed in subsection (c) of Section 11a-3.1 and Section
12-2.
(b) The standby guardian shall not have any duties or authority to act until
the standby guardian receives knowledge of the death or consent of the guardian of the person with a disability, or the inability of the guardian of the person with a disability to make
and carry out day-to-day care decisions concerning the person with a disability
for whom the standby guardian has been appointed. This inability of the
guardian of the person with a disability to make and carry out day-to-day care
decisions may be communicated either by the guardian's own admission or by the
written certification of the guardian's attending physician. Immediately upon
receipt of that knowledge, the standby guardian shall assume all duties as
guardian of the person with a disability as previously determined by the order
appointing the standby guardian, and as set forth in Sections 11a-17 and
11a-18, and the standby guardian of the person shall have the authority to act
as guardian of the person without direction of court for a period of up to 60
days, provided that the authority of the standby guardian may be limited or
terminated by a court of competent jurisdiction.
(c) Within 60 days of the standby guardian's receipt of knowledge of the
death or consent of the guardian of the person with a disability, or the inability of the
guardian of the person with a disability to make and carry out day-to-day care decisions
concerning the person with a disability, the standby guardian shall file or cause to be
filed a petition for the appointment of a guardian of the person or estate, or
both, of the person with a disability under Section 11a-3.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-18.3)
Sec. 11a-18.3. Duties of short-term guardian of a person with a disability.
(a) Immediately upon the effective date of the appointment of a short-term
guardian, the short-term guardian shall assume all duties as short-term
guardian of the person with a disability as provided in this Section. The short-term
guardian of the person shall have authority to act as short-term guardian,
without direction of the court, for the duration of the appointment, which in
no case shall exceed a cumulative total of 60 days in any 12-month period for
all short-term guardians appointed by the guardian. The authority of the
short-term guardian may be limited or terminated by a court of competent
jurisdiction.
(b) Unless further specifically limited by the instrument appointing the
short-term guardian, a short-term guardian shall have the authority to act as a
guardian of the person of a person with a disability as prescribed in Section 11a-17,
but shall not have any authority to act as guardian of the estate of a person with a disability, except that a short-term guardian shall have the authority to apply for
and receive on behalf of the person with a disability benefits to which the person with a disability may be entitled from or under federal, State, or local organizations or
programs.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-19) (from Ch. 110 1/2, par. 11a-19)
Sec. 11a-19. Notice of right to seek modification. At the time of
the appointment of a guardian the court shall inform the ward of his
right under Section 11a-20 to petition for termination
of adjudication of disability, revocation of the letters of guardianship
of the estate or person, or both, or modification of the duties of the guardian
and shall give the ward a written statement explaining this right and the
procedures for petitioning the court.
The notice shall be in large type and shall be in a format substantially similar to
the following:
IN THE CIRCUIT COURT OF THE ... JUDICIAL CIRCUIT OF ILLINOIS ... COUNTY IN RE THE ESTATE OF ) ) ....................., ) CASE NO. .... a Person with a Disability, ) NOTICE TO WARD OF RIGHT TO SEEK MODIFICATION [Insert name] was appointed your Guardian of the Person on [insert date]. [Insert name] was appointed your Guardian of the Estate on [insert date]. You have the right to ask the court to dismiss this guardianship, to revoke the power of this guardian to act for you, or to modify the duties of any such guardian. You, or someone on your behalf, can make this request, even by an informal letter, a telephone call, or a visit to the court. You should send your letter to the court at the following address; [insert name of judge and mailing address of courthouse]. The court may appoint a Guardian ad Litem to investigate and report to the court. You have the right to have a lawyer appointed for you, to have a hearing before the court, to have a jury of six persons decide the facts, to present evidence and tell your story, and to ask witnesses any questions in cross-examination. Entered this.....day of.............., 20.... ................. JUDGE[..] At the time of the appointment of the Guardian in this cause, the court informed the ward of his or her rights under Section 11a-20 of the Illinois Probate Act and gave the ward, in open court, the above-written notice explaining these rights and procedures. or [..] The Clerk of the Circuit Court shall mail a copy of the above-written notice to the above-named person with a disability at the residence address set forth in the petition filed herein. Copy Mailed: Clerk of the Circuit Court[END OF FORM](Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-20) (from Ch. 110 1/2, par. 11a-20)
Sec. 11a-20. Termination of adjudication of disability - Revocation
of letters - modification. (a) Except as provided in subsection (b-5), upon the filing of
a petition by or on behalf of a person with a disability or on its own motion, the
court may terminate the adjudication of disability of the ward, revoke the
letters of guardianship of the estate or person, or both, or modify the duties
of the guardian if the ward's capacity to perform the tasks necessary for
the care of his person or the management of his estate has been
demonstrated by clear and convincing evidence. A report or testimony by a
licensed physician is not a prerequisite for termination, revocation or
modification of a guardianship order under this subsection (a).
(b) Except as provided in subsection (b-5), a request by the ward or any other person on the ward's behalf,
under this Section may be communicated to the court or judge by any means,
including but not limited to informal letter, telephone call or visit. Upon
receipt of a request from the ward or another person, the court may
appoint a guardian ad litem to investigate and report to the court
concerning the allegations made in conjunction with said request, and if
the ward wishes to terminate, revoke, or modify the guardianship order, to
prepare the ward's petition and to render such other services as the court
directs.
(b-5) Upon the filing of a verified petition by the guardian of the person with a disability or the person with a disability, the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian if: (i) a report completed in accordance with subsection (a) of Section 11a-9 states that the person with a disability is no longer in need of guardianship or that the type and scope of guardianship should be modified; (ii) the person with a disability no longer wishes to be under guardianship or desires that the type and scope of guardianship be modified; and (iii) the guardian of the person with a disability states that it is in the best interests of the person with a disability to terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian, and provides the basis thereof. In a proceeding brought pursuant to this subsection (b-5), the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian, unless it has been demonstrated by clear and convincing evidence that the ward is incapable of performing the tasks necessary for the care of his or her person or the management of his or her estate. (c) Notice of the hearing on a petition under this Section, together
with a copy of the petition, shall be given to the ward, unless he is the
petitioner, and to each and every guardian to whom letters of guardianship
have been issued and not revoked, not less than 14 days before the hearing.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/11a-21) (from Ch. 110 1/2, par. 11a-21)
Sec. 11a-21. Hearing. (a) The court shall conduct a hearing on a petition
filed under Section 11a-20. The ward is entitled to be represented by counsel,
to demand a jury of 6 persons, to present evidence and to confront and cross-examine
all witnesses. The court (1) may appoint counsel for the ward, if the court
finds that the interests of the ward will be best served by the appointment
and (2) shall appoint counsel upon the ward's request or if the respondent
takes a position adverse to that of the guardian ad litem. The court may
allow the guardian ad litem and counsel for the ward reasonable compensation.
(b) If the ward is unable to pay the fee of the guardian ad litem or appointed
counsel, or both, the court shall enter an order upon the State to pay,
from funds appropriated by the General Assembly for that purpose, all such
fees or such amounts as the ward is unable to pay.
(c) Upon conclusion of the hearing, the court shall enter an order setting
forth the factual basis for its findings and may: (1) dismiss the petition;
(2) terminate the adjudication of disability; (3) revoke the letters of
guardianship of the estate or person, or both; (4) modify the duties of
the guardian; (5) require the guardian to complete a training program as provided in subsection (e) of Section 11a-12 of this Act; and (6) make any other order which the court deems appropriate
and in the interests of the ward.
(Source: P.A. 100-483, eff. 9-8-18.)
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(755 ILCS 5/11a-22) (from Ch. 110 1/2, par. 11a-22)
Sec. 11a-22. Trade and contracts with a person with a disability.
(a) Anyone who by trading with, bartering, gaming or any other device,
wrongfully possesses himself of any property of a person known to be a
person with a disability commits a Class A misdemeanor.
(b) Every note, bill, bond or other contract by any person for whom
a plenary guardian has been appointed or who is
adjudged to be unable to so contract is void as against that person and
his estate, but a person making a contract with the person so adjudged
is bound thereby.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/11a-23)
Sec. 11a-23. Reliance on authority of guardian, standby guardian,
short-term guardian. (a) For the purpose of this Section, "guardian", "standby guardian", and
"short-term guardian" includes temporary, plenary,
or limited guardians of all wards.
(b) Every health care provider and other person (reliant) has the right to
rely on any decision or direction made by the guardian, standby guardian, or
short-term guardian that is not clearly contrary to the law, to the same
extent
and with the same effect as though the decision or direction had been made or
given by the ward. Any person dealing with the guardian, standby guardian,
or
short-term guardian may presume in the absence of actual knowledge to the
contrary that the acts of the guardian, standby guardian, or short-term
guardian conform to the provisions of the law. A reliant shall not be
protected if the reliant has actual knowledge that the guardian, standby
guardian, or short-term guardian is not entitled to act or that any
particular action or inaction is contrary to the provisions of the law.
(c) A health care provider (provider) who relies on and carries out a
guardian's, standby guardian's, or short-term guardian's directions and who
acts with due care and in accordance with the law shall not be subject to any
claim based on lack of consent, or to criminal prosecution, or to
discipline for unprofessional conduct. Nothing in this Section shall be deemed
to protect a provider from liability for the provider's own negligence in the
performance of the provider's duties or in carrying out any instructions of the
guardian, standby guardian, or short-term guardian, and nothing in this
Section shall be deemed to alter the law of negligence as it applies to the
acts of any guardian or provider.
(d) A guardian, standby guardian, or short-term guardian, who acts or
refrains from acting is not subject to criminal prosecution or any claim based
upon lack of his or her authority or failure to act, if the act or failure to
act was with due care and in accordance with law. The guardian, standby
guardian, or short-term guardian, shall not be liable merely because he or
she
may benefit from the act, has individual or conflicting interests in relation
to the care and affairs of the ward, or acts in a different manner with
respect to the guardian's, standby guardian's, or short-term guardian's
own care or interests.
(Source: P.A. 98-756, eff. 7-16-14.)
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(755 ILCS 5/11a-24) Sec. 11a-24. Notification; Illinois State Police. When a court adjudges a respondent to be a person with a disability under this Article, the court shall direct
the circuit court clerk to notify the
Illinois State Police, Firearm Owner's Identification
(FOID) Office, in a form and manner prescribed by the Illinois State Police, and shall forward a copy of the court order to the Department no later than 7 days after the entry of the order. Upon receipt of the order, the Illinois State Police shall provide notification to the National Instant Criminal Background Check System.
(Source: P.A. 102-538, eff. 8-20-21.) |
(755 ILCS 5/11a-25) Sec. 11a-25. Notification; Secretary of State. When a court adjudges a respondent to be a person with a disability and appoints a plenary guardian for that person under this Article pursuant to subsection (c) of Section 11a-12 or enters an order under this Article finding that the respondent should not operate a motor vehicle, the court shall direct the circuit court clerk to notify the Secretary of State's Driver Services Department, in a form and manner prescribed by the Secretary of State, and shall forward a copy of the court order to the Secretary of State's Driver Services Department no later than 7 days after the entry of the order.
(Source: P.A. 102-749, eff. 1-1-23.) |
(755 ILCS 5/Art. XII heading) ARTICLE XII
BONDS - OATHS - ACCEPTANCE OF OFFICE
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(755 ILCS 5/12-1) (from Ch. 110 1/2, par. 12-1)
Sec. 12-1.
Corporate representative - acceptance of
office.) The bonds provided for in this Act, except appeal
bonds, are not required of corporations qualified to
administer trusts in this State. Before entering upon the
performance of its duties, a corporate representative shall
file in the court an acceptance of office.
(Source: P.A. 79-328.)
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(755 ILCS 5/12-2) (from Ch. 110 1/2, par. 12-2)
Sec. 12-2. Individual representative; oath and bond.
(a) Except as provided in subsection (b), before undertaking the
representative's duties, every individual representative shall take and file an
oath or affirmation that the individual will faithfully discharge the duties of
the office of the representative according to law and shall file in and have
approved by the court a bond binding the individual representative so to do.
The court may waive the filing of a bond of a representative of the person of a
ward or of a standby guardian of a minor or person with a disability.
(b) Where bond or security is excused by the will or as provided in
subsection (b) of Section 12-4, the bond of the representative in the
amount from time to time required under this Article shall be in full force
and effect without writing, unless the court requires the filing of a written
bond.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/12-3) (from Ch. 110 1/2, par. 12-3)
Sec. 12-3.
Surety.) Every bond provided for in this
Article must have as security thereon not less than 2 sureties
acceptable to the court or one surety company qualified
to do business in this State and acceptable to the court.
(Source: P.A. 79-328.)
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(755 ILCS 5/12-4) (from Ch. 110 1/2, par. 12-4)
Sec. 12-4. When security excused or specified.)
(a) Except as provided
in paragraph (c) of Section 6-13 with respect to a nonresident executor, no
security is required of a person who is excused by the will from giving
bond or security and no greater security than is specified by the will
is required, unless in either case the court, from its own knowledge or
the suggestion of any interested person, has cause to suspect the
representative of fraud or incompetence or believes that the estate of
the decedent will not be sufficient to discharge all the claims against
the estate, or in the case of a testamentary guardian of the estate,
that the rights of the ward will be prejudiced by failure to give security.
(b) If a person designates a guardian of his person or estate or
both to be appointed in the event he is adjudged a person with a disability
as provided in Section 11a-6 and excuses the guardian from giving
bond or security, or if the guardian is the Office of State Guardian, the
guardian's bond in the amount from time to time
required under this Article shall be in full force and effect without
writing, unless the court requires the filing of a written bond.
(c) The Office of State Guardian shall not be required to have sureties or
surety companies as security on its bonds. The oath and bond of the
representative without surety shall be sufficient.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/12-5) (from Ch. 110 1/2, par. 12-5)
Sec. 12-5.
Amount of bond.) (a) The bond of a
representative shall be for an amount not less than double the value
of the personal estate if individuals act as sureties or if bond or
security is excused, and not
less than 1 1/2 times the value of the personal estate if a
surety company acts as surety. If the representative takes
possession of the decedent's or ward's real estate, the bond
shall be for such additional amount as the court determines,
having regard to the income from the real estate.
(b) For the purpose of fixing the amount of the bond,
a cause of action for wrongful death of the decedent or for
personal injury to the ward is considered of the value
of $500, but unless excused by the court from doing so,
it is the duty of the representative to file in and have approved
by the court a bond for an amount not less than double the
amount likely to come into his hands as the proceeds of the
judgment or settlement if individuals act as sureties and not
less than 1 1/2 times the amount likely to come into his hands
as the proceeds of the judgment or settlement if a surety
company acts as surety.
(Source: P.A. 84-555; 84-690.)
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(755 ILCS 5/12-6) (from Ch. 110 1/2, par. 12-6)
Sec. 12-6.
Waiver or reduction of bond of representative of ward in
certain cases.) (a) If the primary purpose for the appointment of a
representative of a ward is the sale of the ward's interest in real
estate pursuant to Section 25-4, the court may waive the surety on the
bond of the representative or may fix the amount of the bond in a sum
less than $1,000.
(b) If the primary purpose for the appointment of a representative
of a ward is the proper expenditure of public assistance awarded to the
ward under any Act of the General Assembly of this State, the court may
waive the giving of a bond by the representative.
(c) If (1) the primary purpose for the appointment of a
representative of a ward is the collection, disbursement or
administering of moneys awarded by the Veterans Administration to the
ward, (2) the net value of the ward's estate does not exceed $500,
including accrued unpaid benefits to be received, (3) the benefits to be
received do not exceed $60 per month and (4) substantially all income
will be required for the maintenance of the ward and his dependents, the
court may waive the giving of bond by the representative or may fix the
amount of the bond in a sum less than $500. If the bond has previously
been filed, it may be released upon the conditions prescribed in this
Section upon proper accounting after notice to the Veterans'
Administration Regional Office.
If a bond has been waived or nominal bond only required, an
adequate bond as otherwise required by this Section shall be required
whenever the value of the estate exceeds $500 or for other cause
appearing to the court.
(Source: P.A. 79-328; 79-358; 79-1454.)
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(755 ILCS 5/12-7) (from Ch. 110 1/2, par. 12-7)
Sec. 12-7.
Deposit in lieu or reduction of bond.)
Upon petition of a representative and upon such notice as the
court directs, the court may order the representative to
deposit for safe-keeping with a corporation qualified to
accept and execute trusts in this State such portion or all
of the personal estate as the court deems proper, subject
to the further order of the court, and that the bond of the
representative be reduced so as to cover only the estate
remaining in the possession or custody of the representative.
(Source: P.A. 79-328.)
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(755 ILCS 5/12-8) (from Ch. 110 1/2, par. 12-8)
Sec. 12-8.
Joint or several bonds.) (a) The court may permit a
representative of the estates or persons of more than one ward to
include his obligations to some or all in one bond.
(b) When 2 or more persons are appointed representatives of the same
estate or person, the court may take a separate bond with sureties from
each or a joint bond with sureties from both or all.
(Source: P.A. 80-1415.)
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(755 ILCS 5/12-9) (from Ch. 110 1/2, par. 12-9)
Sec. 12-9.
Additional bond for proceeds of sale or mortgage.) (a) Except
as provided in subsection (d), at or before the entry of an order
authorizing a representative to sell or mortgage real estate or any
interest therein or to sell any oil, gas, coal or other mineral interest
and before a representative sells or mortgages real estate or any interest
therein pursuant to a power in the will or pursuant to subsection (i) of
Section 28-8, the representative shall file a bond and have it approved by
the court.
(b) Where written additional bond is required, the bond shall
identify the real estate or interest therein being sold or mortgaged.
(c) The bond shall be for an amount not less than
double the value of the personal estate likely to come into
the hands of the representative as proceeds of the sale or
mortgage if individuals act as sureties and not less than
1 1/2 times that value if a surety company acts as surety; but
in case of the sale of any oil, gas, coal or other mineral
interest upon a royalty basis and not for a lump sum, and except as
provided in subsection (d), the bond prescribed in this Section shall be
for such an amount as the court directs.
(d) Where bond or security by the representative is excused
by the will, the bond of the representative shall be increased without
writing by double the value of the personal estate coming from time to time
into the hands of the representative from the proceeds of such sale or
mortgage, unless the court requires the filing of a written additional bond.
(Source: P.A. 84-555; 84-690.)
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(755 ILCS 5/12-10) (from Ch. 110 1/2, par. 12-10)
Sec. 12-10.
Further bond or security.) (a) If letters are
issued to a representative without his giving sufficient
bond or security or if his bond or the security therefor
becomes excessive or insufficient in the judgment of the court,
it may on petition of any interested person or on its own
motion require the representative to give a proper bond or
security.
(b) At each accounting of a representative other than
the final accounting, it is the duty of the court to inquire
into the sufficiency of the security and of the bond.
(Source: P.A. 79-328.)
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(755 ILCS 5/12-11) (from Ch. 110 1/2, par. 12-11)
Sec. 12-11.
Counter security - release of surety.)
(a) If the court believes a representative to be insolvent or in
doubtful circumstances, upon petition of the surety on his
bond, the court may require the representative to give counter
security to his surety.
(b) If a representative or the surety on his bond
petitions the court to have the surety released from further
liability on the bond, except for good cause shown the court
shall require the representative within a reasonable time
to be fixed by the court to settle his accounts and to give
a new bond in such amount and security as may be approved by
the court.
(c) Notice of hearing on the account shall be given
as provided by this Act for the hearing on final accounts.
Upon approval by the court of the account and of the new
bond the surety on the old bond is discharged from all
further liability.
(d) If a representative fails to pay the annual bond premium within
120 days of the date he has received notice from the surety company that
the premium is due and owing, the surety company may elect to terminate
its liability on the bond by notifying the representative and his attorney,
if any, and all interested parties that liability on the bond shall cease
60 days after the date of said notice which shall be given by certified
mail and a copy thereof shall be filed with the Court forthwith. If payment
is not made within the required time, the terminating surety shall by motion
notify the court of its election to terminate and shall give notice of such
motion to the representative and all interested parties. The court shall
then require the representative to give a new bond in such amount and with
such security as it may require.
(Source: P.A. 83-859.)
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(755 ILCS 5/12-12) (from Ch. 110 1/2, par. 12-12)
Sec. 12-12.
Notice to representative of action on
bond - answer.) Unless the representative is before the court in
person or by his attorney, he is entitled to such reasonable
notice of any contemplated action of the court to require
sufficient bond or security or counter security or to release a
surety on his bond as the court may provide and he may file
an answer setting up any reasons he may have why the court
should not take such action.
(Source: P.A. 79-328.)
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(755 ILCS 5/12-13) (from Ch. 110 1/2, par. 12-13)
Sec. 12-13.
New or additional bond.) A new or additional
bond, other than an additional bond for the sale or mortgage
of real estate, must be signed, approved and filed in the
same manner as other bonds of representatives and relates
back to the date of the issuance of the letters.
(Source: P.A. 79-328.)
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(755 ILCS 5/12-14) (from Ch. 110 1/2, par. 12-14)
Sec. 12-14.
Bond on appeal.) A bond of a representative
on appeal from the order or judgment of any court must be
in the form prescribed by law in other civil cases, except
that the bond of a representative of a decedent's estate
must be conditioned to pay the judgment with costs in due
course of administration and the bond of a representative of
a ward's estate must be conditioned to pay the judgment
with costs as he has funds therefor.
(Source: P.A. 79-328.)
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(755 ILCS 5/12-15) (from Ch. 110 1/2, par. 12-15)
Sec. 12-15.
Suit on bond.
Suit on a bond executed
under this Act may be prosecuted against one or more of the
obligors named in the bond in the name of the people of the State
of Illinois for the use of any person who may have been
injured by reason of the neglect or improper conduct of the
principal on the bond. Suits may be prosecuted on the bond
from time to time and the bond does not become void on a
recovery thereon until the whole penalty is recovered. It is not necessary to
a recovery that a devastavit shall have previously been established against the
principal.
A
copy of the bond, authenticated by the clerk of the court,
is admissible in evidence to authorize recovery on the bond.
The person for whose use suit on a bond is prosecuted is
liable for all costs which may be taxed by the court in which
suit is brought if the plaintiff fails to recover thereon.
(Source: P.A. 89-364, eff. 8-18-95.)
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(755 ILCS 5/Art. XIII heading) ARTICLE XIII
PUBLIC ADMINISTRATORS, GUARDIANS AND CONSERVATORS
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(755 ILCS 5/13-1) (from Ch. 110 1/2, par. 13-1)
Sec. 13-1. Appointment and term of public administrator and public guardian.
(a) Except as provided in Section 13-1.1, before the first Monday of December,
1977 and every 4 years thereafter, and as often as vacancies occur, the
Governor, by and with the advice and consent of the Senate, shall
appoint in each county a suitable person to serve as public
administrator and a suitable person to serve as public guardian of the county.
The Governor may designate, without the advice and consent of the Senate, the Office of State Guardian as an interim public guardian to fill a vacancy in one or more counties having a population of 500,000 or less if the designation: (1) is specifically designated as an interim | ||
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(2) requires the Office of State Guardian to affirm | ||
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(3) expires in a pending case of a person with a | ||
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When appointed as an interim public guardian, the State Guardian will perform the powers and duties assigned under the Guardianship and Advocacy Act. The Governor may appoint the same person to serve as public guardian and public administrator in one or more counties. In considering the number of counties of service for any prospective public guardian or public administrator the Governor may consider the population of the county and the ability of the prospective public guardian or public administrator to travel to multiple counties and manage estates in multiple counties. Each person so appointed holds his office for
4 years from the first Monday of December, 1977 and every 4 years
thereafter or until his successor is appointed and qualified.
(b) Within 14 days of notification to the current public guardian of the appointment by the Governor of a new public guardian pursuant to this Section, the outgoing public guardian shall provide the incoming successor public guardian with a list of current guardianships. Within 60 days of receipt of the list of guardianships, the incoming public guardian may petition the court for a transfer of a guardianship to the incoming public guardian. The transfer of a guardianship of the person, estate, or both shall be made if it is in the best interests of the ward as determined by the court on a case-by-case basis. Factors for the court to consider include, but are not limited to, the following: (1) the ward's preference as to the transfer of the | ||
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(2) the recommendation of the guardian ad litem, the | ||
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(3) the length of time in which the outgoing public | ||
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(4) the ward's relationship with the outgoing public | ||
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(5) the nature and extent of the ward's disabilities; (6) the ward's current residential placement, his or | ||
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(7) the costs involved in the transfer of the ward's | ||
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(8) the status of pending legal matters or other | ||
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(9) the obligation to post bond and the cost thereof; (10) the guardians' status with regard to | ||
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(11) other good causes. If the court approves a transfer to the incoming public guardian, the outgoing public guardian shall file a final account of his or her activities on behalf of the ward within 30 days or within such other time that the court may allow. The outgoing public guardian may file a petition for final fees pursuant to subsection (b) of Section 13-3.1. (Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/13-1.1) (from Ch. 110 1/2, par. 13-1.1)
Sec. 13-1.1.
Appointment and term of public guardian in counties having
a population in excess of 1,000,000.) As soon as practicable
after the effective date of this amendatory Act, the chief judge of the
Circuit Court in each circuit shall appoint for each county in the circuit
having a population in excess of 1,000,000 to the office of public guardian
a duly licensed attorney who shall hold office, death or resignation not
intervening, at the pleasure of the chief judge; and whenever a vacancy
occurs in the office it shall be filled in a like manner.
(Source: P.A. 81-1052.)
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(755 ILCS 5/13-1.2) Sec. 13-1.2. Certification requirement. Each person appointed as a public guardian by the Governor shall be certified as a National Certified Guardian by the Center for Guardianship Certification within 6 months after his or her appointment. The Guardianship and Advocacy Commission shall provide public guardians with information about certification requirements and procedures for testing and certification offered by the Center for Guardianship Certification. The cost of certification shall be considered an expense connected with the operation of the public guardian's office within the meaning of subsection (b) of Section 13-3.1 of this Article. A public guardian shall additionally complete a one-hour course regarding Alzheimer's disease and dementia within 6 months of appointment and annually thereafter. The training program shall include, but not be limited to, the following topics: effective communication strategies; best practices for interacting with people with Alzheimer's disease and related forms of dementia; and strategies for supporting people living with Alzheimer's disease or related forms of dementia in exercising their rights.
(Source: P.A. 103-64, eff. 1-1-24.) |
(755 ILCS 5/13-2) (from Ch. 110 1/2, par. 13-2)
Sec. 13-2. Bond and oath.) Before entering upon the performance of
his duties, every public administrator and every public guardian shall take
and file in the court an oath or affirmation that
he will support the Constitution of the United States and the
Constitution of the State of Illinois and will faithfully discharge the
duties of his office and shall enter into a bond payable to the people
of the State of Illinois in a sum of not less than $5,000 with security
as provided by this Act and approved by the court of the county in
which he is appointed, conditioned that he will faithfully discharge
the duties of his office. The court may from time to time require
additional security of the public administrator or guardian
and may require him to give the usual bond required of representatives
of estates of decedents, or persons with disabilities
in other cases. In
default of his giving bond within 60 days after receiving his commission
or of his giving additional security within 60 days after being ordered
by the court to do so, his office is deemed vacant and upon certificate
of a judge of the court of that fact the Governor or the Circuit Court
shall fill the
vacancy.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/13-3) (from Ch. 110 1/2, par. 13-3)
Sec. 13-3.
Compensation of public administrator.
(a) In counties having a population in excess of 1,000,000
the public administrator shall pay all the fees collected by the office into
the county treasury. Each year, the county board shall appropriate an amount
to be paid to the public administrator as compensation for the public
administrator's performance of his or her duties and such compensation shall be
paid at a minimum level of $20,000 annually. That amount shall be paid
from the fees collected by the office of the public administrator. The
county board in such counties shall fix the amount for the public
administrator's compensation and necessary clerk hire,
assistants,
and office expense in the annual county budget and appropriation ordinances,
which shall be paid from the
county treasury. In such counties all fees of the office of public
administrator are subject to audit the same as are fees of other county
officers.
(b) In counties having a population of 1,000,000 or
less the public administrator may receive all the fees
of his office and shall bear the expenses connected with
the operation of such office.
(Source: P.A. 89-135, eff. 7-14-95.)
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(755 ILCS 5/13-3.1) (from Ch. 110 1/2, par. 13-3.1)
Sec. 13-3.1. Compensation of public guardian. (a) In counties having a population
in excess of 1,000,000 the public guardian shall be paid an annual salary,
to be set by the County Board at a figure not to exceed the salary of the
public defender for the county. All expenses connected with the operation
of the office shall be subject to the approval of the County Board and shall
be paid from the county treasury. All fees collected shall be paid into
the county treasury.
(b) In counties having a population of 1,000,000 or less the public guardian shall receive all the fees of his office and bear the expenses connected with the operation of the office. A public guardian shall be entitled to reasonable and appropriate compensation for services related to guardianship duties but all fees must be reviewed and approved by the court. A public guardian may petition the court for the payment of reasonable and appropriate fees. In counties having a population of 1,000,000 or less, the public guardian shall do so on not less than a yearly basis, or sooner as approved by the court. Any fees or expenses charged by a public guardian shall be documented through billings and maintained by the guardian and supplied to the court for review. In considering the reasonableness of any fee petition brought by a public guardian under this Section, the court shall consider the following: (1) the powers and duties assigned to the public | ||
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(2) the necessity of any services provided; (3) the time required, the degree of difficulty, and | ||
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(4) the needs of the ward and the costs of | ||
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(5) other facts and circumstances material to the | ||
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(c) When the public guardian is appointed as the temporary guardian of an adult with a disability pursuant to an emergency petition under circumstances when the court finds that the immediate establishment of a temporary guardianship is necessary to protect the health, welfare, or estate of the adult with a disability, the public guardian shall be entitled to reasonable and appropriate fees, as determined by the court, for the period of the temporary guardianship, including fees directly associated with establishing the temporary guardianship. (Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/13-4) (from Ch. 110 1/2, par. 13-4)
Sec. 13-4.
Powers and duties of public administrator.)
(a) When a person dies owning any real or personal
estate in this State and there is no person in this State
having a prior right to administer his estate, the public
administrator of the county of which the decedent was a
resident, or of the county in which his estate is situated, if
the decedent was a nonresident of this State, may take such
measures as he deems proper to protect and secure the estate
from waste, loss or embezzlement until letters of office
on the estate are issued to the person entitled thereto or
until a demand for the removal of the personal estate from
this State is made by a nonresident representative pursuant
to the authority granted by this Act. When letters of office
are issued to the public administrator, he has the same
powers and duties as other representatives of decedents'
estates appointed under this Act until he is discharged or
his authority is sooner terminated by order of court.
(b) In counties having a population in excess of 1,000,000 inhabitants,
a public administrator shall retain his or her records in accordance with the Local Records Act.
(Source: P.A. 97-882, eff. 1-1-13.)
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(755 ILCS 5/13-5) (from Ch. 110 1/2, par. 13-5)
Sec. 13-5. Powers and duties of public guardian.) The court may appoint
the public guardian as the guardian of any adult with a disability who is in need
of a public guardian and whose estate exceeds $25,000. When an adult with a disability
who has a smaller estate is in need of guardianship services, the court
shall appoint the State guardian pursuant to Section 30 of the Guardianship
and Advocacy Act.
If the public guardian is appointed guardian of an adult with a disability and the
estate of the adult with a disability is thereafter reduced to less than $25,000, the
court may, upon the petition of the public guardian and the approval by the
court of a final accounting of the estate of the adult with a disability, discharge the
public guardian and transfer the guardianship to the State guardian. The
public guardian shall serve not less than 14 days' notice to the State guardian
of the hearing date regarding the transfer.
When appointed by the court, the public guardian has the
same powers and duties as other guardians appointed under this Act, with
the following additions and modifications:
(a) The public guardian shall monitor the ward and his care and progress
on a continuous basis. Monitoring shall at minimum consist of monthly
contact with the ward, and the receipt of periodic reports from all
individuals and agencies, public or private, providing care or related
services to the ward.
(b) Placement of a ward outside of the ward's home may be made only after
the public guardian or his representative has visited the facility in which
placement is proposed.
(c) The public guardian shall prepare an inventory of the ward's belongings
and assets and shall maintain insurance on all of the ward's real and personal
property, unless the court determines, and issues an order finding, that (1) the real or personal property lacks sufficient equity, (2) the estate lacks sufficient funds to pay for insurance, or (3) the property is otherwise uninsurable. No personal property shall be removed from the ward's possession
except for storage pending final placement or for liquidation in accordance
with this Act.
(d) The public guardian shall make no substantial distribution of the
ward's estate without a court order.
(e) The public guardian may liquidate assets of the ward to pay for the
costs of the ward's care and for storage of the ward's personal property
only after notice of such pending action is given to all potential heirs
at law, unless notice is waived by the court; provided, however, that a
person who has been so notified may elect to pay for care or storage or
to pay fair market value of the asset or assets sought to be sold in lieu
of liquidation.
(f) Real property of the ward may be sold at fair market value after an
appraisal of the property has been made by a licensed appraiser; provided,
however, that the ward's residence may be sold only if the court finds that
the ward is not likely to be able to return home at a future date.
(g) The public guardian shall, at such intervals as the court may direct,
submit to the court an affidavit setting forth in detail the services he
has provided for the benefit of the ward.
(h) Upon the death of the ward, the public guardian shall turn over to
the court-appointed administrator all of the ward's assets and an account
of his receipt and administration of the ward's property. A guardian ad
litem shall be appointed for an accounting when the estate exceeds the amount
set in Section 25-1 of this Act for administration of small estates.
(i)(1) On petition of any person who appears to have an interest in
the estate, the court by temporary order may restrain the public guardian
from performing specified acts of administration, disbursement or distribution,
or from exercise of any powers or discharge of any duties of his office,
or make any other order to secure proper performance of his duty, if it
appears to the court that the public guardian might otherwise take some
action contrary to the best interests of the ward. Persons with whom the
public guardian may transact business may be made parties.
(2) The matter shall be set for hearing within 10 days unless the parties
otherwise agree or unless for good cause shown the court determines that
additional time is required. Notice as the court directs shall be given
to the public guardian and his attorney of record, if any, and to any other
parties named defendant in the petition.
(j) On petition of the public guardian, the court in its discretion may
for good cause shown transfer guardianship to the State guardian.
(k) No later than January 31 of each year, the public guardian shall file
an annual report with the clerk of the Circuit Court, indicating, with respect
to the period covered by the report, the number of cases which he has handled,
the date on which each case was assigned, the date of termination of each
case which has been closed during the period, the disposition of each
terminated case, and the total amount of fees collected during the period
from each ward.
(l) (Blank).
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/Art. XIV heading) ARTICLE XIV
INVENTORY AND APPRAISAL
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(755 ILCS 5/14-1) (from Ch. 110 1/2, par. 14-1)
Sec. 14-1.
Inventory.) (a) Within 60 days after the issuance of his letters
the representative of the estate of a decedent or ward shall file in the
court a verified inventory of the real and personal estate which has come
to his knowledge and of any cause of action on which he has a right to sue.
If any real or personal estate comes to the knowledge of the representative
after he has filed an inventory he shall file a supplemental inventory thereof
within 60 days after it comes to his knowledge.
(b) The inventory must describe the real estate and the improvements and
encumbrances thereon, state the amount of money on hand and list all personal estate.
(Source: P.A. 81-213.)
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(755 ILCS 5/14-2) (from Ch. 110 1/2, par. 14-2)
Sec. 14-2.
Appraisal.) If the representative believes that it is necessary
for the proper administration of the estate to determine the value of any
goods and chattels, the representative may appraise them or may employ one
or more competent, disinterested appraisers for that purpose and pay each
of them reasonable compensation for his services.
(Source: P.A. 81-213.)
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(755 ILCS 5/14-3) (from Ch. 110 1/2, par. 14-3)
Sec. 14-3.
Inventories and appraisals as evidence.)
Inventories and appraisals and authenticated copies thereof may
be given in evidence in any suit by or against the representative
but are not conclusive for or against him if other
evidence is given that the estate was worth or was sold in
good faith for more or less than its appraised value.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. XV heading) ARTICLE XV
SPOUSE AND CHILD AWARDS
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(755 ILCS 5/15-1) (from Ch. 110 1/2, par. 15-1)
Sec. 15-1. Spouse's award.
(a) The surviving spouse of
a deceased resident of this State whose estate, whether
testate or intestate, is administered in this State, shall be
allowed as the surviving spouse's own property, exempt from the enforcement
of a judgment, garnishment or attachment in the possession of the
representative, a sum of money that the court deems reasonable
for the proper support of the surviving spouse for the
period of 9 months after the death of the decedent in a manner
suited to the condition in life of the surviving spouse
and to the condition of the estate and an additional sum
of money that the court deems reasonable for the proper
support, during that period, of minor
children of the decedent who resided with the surviving spouse at
the time of the decedent's death. The award may in no case
be less than $20,000, together with an additional sum not
less than $10,000 for each such child. The award shall be
paid to the surviving spouse at such time or times, not
exceeding 3 installments, as the court directs. If the
surviving spouse dies before the award for his support is paid
in full, the amount unpaid shall be paid to his estate. If
the surviving spouse dies or abandons a child before the
award for the support of a child is paid in full, the amount
unpaid shall be paid for the benefit of the child to such
person as the court directs.
(a-5) The surviving spouse of a deceased resident of this State whose estate, whether testate or intestate, is administered in this State, shall be allowed as the surviving spouse's own property, exempt from the enforcement of a judgment, garnishment, or attachment in the possession of the representative, for each adult child of the decedent who is likely to become a public charge and was financially dependent on the decedent and resided with the surviving spouse at the time of the decedent's death, a sum of money that the court deems reasonable, or agreed upon by the surviving spouse and representative of the decedent's estate or affiant under a small estate affidavit pursuant to Section 25-1, for the proper support of the adult child for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the adult child of the decedent and to the condition of the estate. The award shall be at least $5,000 for each such adult child and shall otherwise be consistent with the financial support that the decedent was providing the adult child immediately prior to the decedent's death. The award shall be paid to the surviving spouse at such time or times, not exceeding 3 installments, as the court directs. If the surviving spouse dies or abandons an adult child before the award for the support of an adult child is paid in full, the amount unpaid shall be paid for the benefit of the adult child to such person as the court directs. Within 30 days of the surviving spouse or adult child receiving written notice of this potential award from the representative of the decedent's estate or from the affiant under a small estate affidavit pursuant to Section 25-1, the surviving spouse or the adult child, or the adult child's agent or guardian or other adult on behalf of the adult child, shall provide written notice to the representative or affiant asserting that the adult child was financially dependent on the decedent at the time of the decedent's death. Failure to provide written notice to the representative or affiant within 30 days after receiving notice from the representative or affiant shall be a bar to the right to receive the award. The notice by the representative may be combined with the notices given pursuant to Sections 6-21 and 8-1. (b) The surviving spouse is entitled to the award
unless the will of the decedent expressly provides that the
provisions thereof for the surviving spouse are in lieu of
the award and the surviving spouse does not renounce the will. (c) The changes made by Public Act 96-968 apply to a decedent whose date of death is on or after July 2, 2010 (the effective date of Public Act 96-968). The changes to this Section made by this amendatory Act of the 100th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 100th
General Assembly.
(Source: P.A. 100-478, eff. 6-1-18.)
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(755 ILCS 5/15-2) (from Ch. 110 1/2, par. 15-2)
Sec. 15-2. Child's award.
(a) If a minor child of the decedent does not reside
with the surviving spouse of the decedent at the time of the decedent's death,
there shall be allowed to that child, exempt from the enforcement of a
judgment, garnishment or attachment in the possession of the
representative, a sum of money that the court deems reasonable for the
proper support of the child for the period of 9 months after the death of
the decedent, in a manner suited to the condition in life of the minor
child and to the condition of the estate. The award may in no case be less
than $10,000 and shall be paid for the benefit of the child to such person
as the court directs.
(b) If a deceased resident of this State leaves no
surviving spouse, there shall be allowed to all children of the
decedent who were minors at the date of death, exempt from the enforcement of a judgment, garnishment
or attachment in the possession of the representative, a sum of money that
the court deems reasonable for the proper support of those children for the
period of 9 months after the death of the decedent in a manner suited to
the condition in life of those children and to the condition of the estate.
The award may in no case be less than $10,000 for each of those children,
together with an additional sum not less than $20,000 that shall be divided
equally among those children or apportioned as the court directs and that
shall be paid for the benefit of any of those children to any person that
the court directs.
(b-5) If an adult child of the decedent is likely to become a public charge and was financially dependent on the decedent at the time of the decedent's death, and if the adult child of the decedent did not reside with the surviving spouse of the decedent at the time of the decedent's death, there shall be allowed to that adult child, exempt from the enforcement of a judgment, garnishment, or attachment in the possession of the representative, a sum of money that the court deems reasonable, or agreed upon by the surviving spouse and representative of the decedent's estate or affiant under a small estate affidavit pursuant to Section 25-1, for the proper support of the adult child for the period of 9 months after the death of the decedent, in a manner suited to the condition of life of the adult child and to the condition of the estate. The award shall be at least $5,000 and shall otherwise be consistent with the financial support that the decedent was providing the adult child immediately prior to the decedent's death. The award shall be paid for the benefit of the adult child to such person as the court or affiant under a small estate affidavit pursuant to Section 25-1 directs. Within 30 days after receiving written notice of this potential award from the representative of the decedent's estate or from the affiant under a small estate affidavit pursuant to Section 25-1, the adult child, or the adult child's agent or guardian or other adult on behalf of the adult child, shall provide written notice to the representative or affiant, asserting that the adult child was financially dependent on the decedent at the time of the decedent's death and that the adult child did not reside with the surviving spouse at the time of the decedent's death. Failure to provide such written notice to the representative or affiant within 30 days after receiving notice from the representative or affiant shall be a bar to the right to receive the award. The notice by the representative may be combined with the notices given pursuant to Sections 6-21 and 8-1. (c) The changes made by Public Act 96-968 apply to a decedent whose date of death is on or after July 2, 2010 (the effective date of Public Act 96-968). The changes to this Section made by this amendatory Act of the 100th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 100th
General Assembly. (Source: P.A. 100-478, eff. 6-1-18.)
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(755 ILCS 5/15-3) (from Ch. 110 1/2, par. 15-3)
Sec. 15-3.
Allowance, notice and review of award.)
(a) The representative shall apply to the court to make the award
when an award is allowable and is not waived or barred, and
when an award is allowed, shall mail or deliver a copy of the
award to each person in whose favor the award is made, unless
service is waived.
(b) On petition of the surviving spouse, the representative,
an heir or legatee, or a creditor of the estate, the
court may hear evidence and may increase or diminish the
award as justice requires.
(Source: P.A. 79-328.)
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(755 ILCS 5/15-4) (from Ch. 110 1/2, par. 15-4)
Sec. 15-4.
Selection.) (a) The surviving spouse is entitled to
receive the amount of the award in money or, at the election of the
surviving spouse, to accept payment thereof in whole or in part in goods
and chattels of the decedent not specifically bequeathed, at their
appraised value. The selection shall be made in writing by the surviving
spouse within 30 days after he is notified in writing of the allowance
of the award and shall be filed in the court. If the surviving spouse
dies before the expiration of the time within which he may make the
selection, the representative of his estate may make the selection for
the benefit of the estate.
(b) If the decedent leaves no surviving spouse, the children of the
decedent have the same right of selection of goods and chattels as the
surviving spouse under this Section. The selection shall be made and
filed in the same manner as the surviving spouse's selection.
(c) If a surviving spouse or child entitled to make a selection is a
ward his representative may make the selection on his
behalf.
(Source: P.A. 80-1415.)
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(755 ILCS 5/Art. XVI heading) ARTICLE XVI
RECOVERY OF PROPERTY AND DISCOVERY OF
INFORMATION
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(755 ILCS 5/16-1) (from Ch. 110 1/2, par. 16-1)
Sec. 16-1. Citation on behalf of estate.
(a) Upon the filing of a
petition therefor by the representative or by any other person
interested in the estate or, in the case of an estate of a ward by any other
person, the court shall order a citation to
issue for the appearance before it of any person whom the petitioner
believes (1) to have concealed, converted or embezzled or to have in his
possession or control any personal property, books of account, papers or
evidences of debt or title to lands which belonged to a person whose
estate is being administered in that court or which belongs to his
estate or to his representative or (2) to have information or knowledge
withheld by the respondent from the representative and needed by the
representative for the recovery of any property by suit or otherwise.
The petition shall contain a request for the relief sought.
(b) The citation must be served not less than 10 days before the
return day designated in the citation and must be served and returned in
the manner provided for summons in civil cases.
If there is a personal representative who is not the respondent, notice of
the proceeding shall be given by mail or in person to the personal
representative not less than 5 days before the return day designated in the
citation.
(c) If the representative is the respondent, the court may appoint a
special administrator to represent the estate. The court may permit the
special administrator to prosecute or defend an appeal.
(d) The court may examine the respondent on oath whether or not the
petitioner has proved the matters alleged in the petition, may hear the
evidence offered by any party, may determine all questions of title,
claims of adverse title and the right of property and may enter such
orders and judgment as the case requires. If the respondent refuses to
answer proper questions put to him or refuses to obey the court's order
to deliver any personal property or, if converted, its proceeds or
value, or books of account, papers or evidences of debt or title to
lands, the court may commit him to jail until he complies with the order
of the court or is discharged by due course of law and the court may
enforce its order against the respondent's real and
personal property in the manner in which judgments for the payment of
money are enforced. The court may tax the costs of the proceeding against
the respondent and enter judgment therefor against him.
(Source: P.A. 99-93, eff. 1-1-16; 99-497, eff. 1-29-16.)
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(755 ILCS 5/16-2) (from Ch. 110 1/2, par. 16-2)
Sec. 16-2.
Personal property claimed by third party.) Upon the
filing of a petition therefor by any person and upon such notice as the court may
direct, the court may order a representative having in his possession or control
any personal property, book of account, paper or evidence of title to land or of
debt which belongs to the petitioner to deliver the same to the petitioner or his
agent. The court may hear the evidence offered by any party, may determine all
questions of title, claims of adverse title and the right of property and may enter
such orders and judgment as the case requires.
(Source: P.A. 79-328.)
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(755 ILCS 5/16-3) (from Ch. 110 1/2, par. 16-3)
Sec. 16-3.
Trial by jury.
Upon the demand of a party to a proceeding
under Section 16-1 or 16-2, questions of title, claims of adverse title and the
right of property shall be determined by a jury.
(Source: P.A. 91-357, eff. 7-29-99.)
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(755 ILCS 5/Art. XVIII heading) ARTICLE XVIII
CLAIMS AGAINST ESTATES
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(755 ILCS 5/18-1) (from Ch. 110 1/2, par. 18-1)
Sec. 18-1.
Filing of claims - mailing or delivery of copies).
(a) A claim
against the estate of a decedent or ward, whether based on contract,
tort, statutory custodial claim or otherwise, may be filed
with the representative or the court or both. When a claim is filed with
the representative but not with the court, the representative may file the
claim with the court but has no duty to do so.
(b) Within 10 days after a claimant files his claim with the court, the
claimant (1) shall cause a copy of the claim to be mailed or delivered
to each representative to whom letters of office have been issued
and not revoked, including the guardian of the person of a ward and to the
representative's attorney of record, unless the
representative
or the attorney has in writing either consented to allowance of the
claim
or waived mailing or delivery of a copy, and (2) shall file with the court
proof of any required mailing or delivery of copies. Failure to mail or
deliver copies of the claim or to file proof thereof does not affect the
validity of the claim filing under subsection 18-1(a).
(Source: P.A. 89-396, eff. 8-20-95.)
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(755 ILCS 5/18-1.1) (from Ch. 110 1/2, par. 18-1.1)
Sec. 18-1.1. Statutory custodial claim. Any spouse, parent, brother,
sister, or child of a person with a disability who dedicates himself or herself to the
care of the person with a disability by living with and personally caring for the
person with a disability for at least 3 years shall be entitled to a claim against
the estate upon the death of the person with a disability. The claim shall take
into consideration the claimant's lost employment opportunities, lost
lifestyle opportunities, and emotional distress experienced as a result of
personally caring for the person with a disability. Notwithstanding the statutory claim amounts stated in this Section, a court may reduce an amount to the extent that the living arrangements were intended to and did in fact also provide a physical or financial benefit to the claimant. The factors a court may consider in determining whether to reduce a statutory custodial claim amount may include but are not limited to: (i) the free or low cost of housing provided to the claimant; (ii) the alleviation of the need for the claimant to be employed full time; (iii) any financial benefit provided to the claimant; (iv) the personal care received by the claimant from the decedent or others; and (v) the proximity of the care provided by the claimant to the decedent to the time of the decedent's death. The claim shall be in addition
to any other claim, including without limitation a reasonable claim for
nursing and other care. The claim shall be based upon the nature and
extent of the person's disability and, at a minimum but subject to the
extent of the assets available, shall be in the amounts set forth below:
1. 100% disability, $180,000
2. 75% disability, $135,000
3. 50% disability, $90,000
4. 25% disability, $45,000
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/18-2) (from Ch. 110 1/2, par. 18-2)
Sec. 18-2.
Claim form.) Every claim filed must be in writing and state
sufficient information to notify the representative of the nature of the
claim or other relief sought.
(Source: P.A. 81-213.)
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(755 ILCS 5/18-3) (from Ch. 110 1/2, par. 18-3)
Sec. 18-3.
Notice - Publication.
(a) It is the duty of the representative to
publish once each week for 3 successive
weeks, and to mail or deliver to each creditor of the decedent whose name
and post office address are known to or are reasonably ascertainable by the
representative and whose claim has not been allowed or disallowed as
provided in Section 18-11,
a notice stating the death of the decedent, the name and address of
the representative and
of his attorney of record, that claims may be filed on or
before the date stated in the notice, which date shall be not less than 6
months from the date of the first publication or 3 months from the date of
mailing or delivery, whichever is later, and that any claim not filed on or
before
that date is barred.
(b) The published notice under subsection (a) of this Section must
be published in a newspaper published
in the county where the estate is being administered and may be combined
with any notice under Section 6-10 or subsection (b) of Section 9-5.
The representative
must file proof of publication with the clerk of the court.
(Source: P.A. 86-815.)
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(755 ILCS 5/18-4) (from Ch. 110 1/2, par. 18-4)
Sec. 18-4.
Claims not due.) A claim against a decedent's estate that
is not due may be filed and allowed and paid out of the estate as other
claims but interest which has been included as a part of the principal obligation,
computed from the time of the allowance of the claim to the time when it
would have become due, shall be deducted.
(Source: P.A. 81-213.)
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(755 ILCS 5/18-5) (from Ch. 110 1/2, par. 18-5)
Sec. 18-5.
Pleadings.) (a) The representative or any other person whose rights may
be affected by the allowance of a claim or counterclaim may file pleadings
with the clerk of the
court within 30 days after mailing or delivery of the copy of the claim.
A claim or counterclaim
may be filed in favor of the estate and against any claimant named in the claim.
(b) The court may order the claimant, the representative or any other
interested person to
file such pleadings as the court directs.
(Source: P.A. 79-328.)
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(755 ILCS 5/18-6) (from Ch. 110 1/2, par. 18-6)
Sec. 18-6.
Jury trial.) Any interested person may demand a jury to try
the issue in accordance with the following, otherwise he waives a jury:
(a) A claimant or counterclaimant must file the jury demand at the time of filing the
claim or counterclaim.
(b) A person opposing a claim or counterclaim must file the jury demand not later than
the filing of his answer or other pleading.
(c) If the claimant or counterclaimant files a jury demand and thereafter
waives a jury,
the person opposing the claim or counterclaim shall be granted a jury trial
upon demand therefor
made promptly after being advised of the waiver. For good cause shown,
the court may permit a
jury demand to be filed after expiration of the time specified.
(Source: P.A. 80-808.)
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(755 ILCS 5/18-7) (from Ch. 110 1/2, par. 18-7)
Sec. 18-7.
Procedure on hearing of claims.) (a) On the call of a claim
it may be allowed, set for trial, continued or dismissed. A claim which is
consented to by the representative or his attorney or to which no pleading
has been filed within the time provided by this Act may be taken as proved
or the court may require the claimant to prove his claim.
(b) If it appears at the hearing on a counterclaim filed in favor of the
estate and against a claimant that he is indebted to the estate, after
allowing him all just credits, deductions and set-offs, the court may enter
judgment for the amount of the indebtedness.
(Source: P.A. 84-547; 84-551.)
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(755 ILCS 5/18-8) (from Ch. 110 1/2, par. 18-8)
Sec. 18-8. Claim of representative or his
attorney.) If a representative or the representative's
attorney has a claim against the estate, that
person must file a claim as other
persons and the court may appoint a special administrator to appear and
defend for the estate.
The court may permit the special administrator to prosecute or defend an appeal
from the
allowance or disallowance of the claim.
In the administration of the estate of a person with a disability, notice of the claim of a
representative or his or her attorney shall be given by mail or in person to
the
ward and to all other representatives of the ward's person or estate, within 10
days of filing.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/18-9) (from Ch. 110 1/2, par. 18-9)
Sec. 18-9.
Costs.) If a claim for which a filing fee is required to be paid is filed,
the clerk of the court shall collect the filing fee from the claimant.
All other costs of
proceedings with respect to claims and counterclaims shall be awarded in
the discretion of
the court.
(Source: P.A. 79-328.)
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(755 ILCS 5/18-10) (from Ch. 110 1/2, par. 18-10)
Sec. 18-10. Classification of claims against decedent's estate. All
claims against the estate of a decedent are divided into classes in the
manner following:
1st: Funeral and burial expenses, expenses of administration,
statutory custodial claims, and final fees and costs as determined by the court relating to guardianship, including fees awarded under Section 11a-13.5, 13-3, 13-3.1, 27-1, 27-2, or 27-4. For the purposes of this paragraph, funeral and
burial expenses paid by any person, including a surviving spouse, are
funeral and burial expenses; and funeral and burial expenses include
reasonable amounts paid for a burial space, crypt or niche, a marker on the
burial space, care of the burial space, crypt or niche, and interest on
these amounts. Interest on these amounts shall accrue beginning 60 days
after issuance of letters of office to the representative of the decedent's
estate, or if no such letters of office are issued, then beginning 60 days
after those amounts are due, up to the rate of 9% per annum as allowed by
contract or law.
2nd: The surviving spouse's or child's award.
3rd: Debts due the United States.
4th: Reasonable and necessary medical, hospital, and nursing home expenses for the care of the decedent during the year immediately preceding death; and money due employees of the decedent of not more than $800 for each
claimant for services rendered within 4 months prior to the decedent's
death.
5th: Money and property received or held in trust by decedent which
cannot be identified or traced.
6th: Debts due this State and any county, township, city, town, village
or school district located within this State.
7th: All other claims.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/18-11) (from Ch. 110 1/2, par. 18-11)
Sec. 18-11.
Allowance and disallowance of claims by representative.
(a) The representative may at any time pay or consent in writing to all
or any part of any claim that is not barred under Section 18-12, if
and to the extent the claim has not been disallowed by the
court and the representative determines it to be valid. Payment or consent
by the representative constitutes allowance of the claim and binds the estate.
When a claim filed with the court is allowed by the representative, the
representative must promptly file notice of the allowance with the court,
but failure to do so will not affect the allowance. At the request of any
interested person the representative must establish the propriety of his
allowance of any claim.
(b) The representative may at any time disallow all or any part of any
claim that has not been filed with the court by mailing or delivering a
notice of disallowance to the claimant, and to the claimant's attorney if
the attorney's name and address are known to the representative, stating
that if the claim is not filed with the court on or before the date stated
in the notice, which date shall be not less than 2 months from the date of
the notice, the claim will be barred. A claim
disallowed by the representative under this subsection and not filed with
the court on or before the date stated in the notice shall be barred under
Section 18-12 in the same manner as a claim not timely filed.
(Source: P.A. 86-815.)
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(755 ILCS 5/18-12) (from Ch. 110 1/2, par. 18-12)
Sec. 18-12.
Limitations on payment of claims.
(a) Every claim against the estate of a decedent, except expenses of
administration and surviving spouse's or child's award, is barred as to all of
the decedent's estate if:
(1) Notice is given to the claimant as provided in | ||
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(2) Notice of disallowance is given to the claimant | ||
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(3) The claimant or the claimant's address is not | ||
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(b) Unless sooner barred under subsection (a) of this Section, all
claims which could have been barred under this Section
are, in any event, barred 2 years after decedent's death, whether or not
letters of office are issued upon the estate of the decedent.
(c) This Section does not bar actions to establish liability of the
decedent to the extent the estate is protected by liability insurance.
(d) Except with respect to a claimant whose claim is known to the
representative and is not paid or otherwise barred under this Section, a
representative who acts in good faith to determine and give notice to
creditors of a decedent, as provided in Section 18-3, is not personally
liable to a creditor of a decedent, but any claim not barred under this
Section may be asserted against (1) the estate, to the extent that assets
have not been distributed, and (2) a distributee of the estate (other than
a creditor), but only to the extent that the distributee's share of the
estate will not, in effect, be diminished below what the distributee would
have received had the claim been paid by the representative.
(Source: P.A. 89-21, eff. 7-1-95; 89-686, eff. 12-31-96.)
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(755 ILCS 5/18-13) (from Ch. 110 1/2, par. 18-13)
Sec. 18-13.
Priority of payment.) Except as provided in Section 19-6,
the representative of a decedent's estate shall pay from the estate all
claims entitled to be paid therefrom, in the order of their classification,
and when the estate
is insufficient to pay the claims in any one class, the claims in that class
shall be paid pro rata.
(Source: P.A. 81-213.)
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(755 ILCS 5/18-14) (from Ch. 110 1/2, par. 18-14)
Sec. 18-14.
Estate chargeable with legacies, expenses and claims.) All the real and
personal estate of the decedent and the income therefrom during the period
of administration
are chargeable with the claims against the estate, expenses of administration,
estate and
inheritance taxes and legacies without distinction except as otherwise provided
in this Act
or by decedent's will and may be leased, sold, mortgaged or pledged as the
court directs in
the manner prescribed in this Act. In determining what property in the estate shall be
leased, sold, mortgaged or pledged for any purpose provided in this Section, there is no
priority as between real and personal estate, except as provided in this
Act or by decedent's
will.
(Source: P.A. 79-328.)
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(755 ILCS 5/18-15) (from Ch. 110 1/2, par. 18-15)
Sec. 18-15.
Payment of claims against wards' estates.) Claims allowed against the
estate of a ward shall be paid by the representative as he has funds therefor.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. XIX heading) ARTICLE XIX
ADMINISTRATION OF PERSONAL ESTATE
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(755 ILCS 5/19-1) (from Ch. 110 1/2, par. 19-1)
Sec. 19-1.
Lease, sale, mortgage or pledge of personal estate of decedent.) (a) By
leave of court, a representative may lease, sell, mortgage or pledge the
personal estate of the
decedent when it is necessary for the proper administration of the estate. Personal
property selected by the surviving spouse or child or specifically bequeathed
or directed
by the testator not to be sold may not be sold, mortgaged or pledged unless
necessary for
the payment of claims, expenses of administration, estate or inheritance
taxes or the proper
administration of the estate.
(b) If the sale of the personal estate is not necessary for the payment of claims or
expense of administration or the proper distribution of the estate, the
court may order the
personal estate to be distributed in kind.
(c) The provisions of this Article for the lease, sale, mortgage or pledge of personal
estate do not apply to leases, sales, mortgages or pledges made without
order of court by a
representative under a power given in the will. The lease, sale, mortgage
or pledge of any
personal estate by a representative under a power given in a will is valid
regardless of the
subsequent setting aside of the will or any other action which might limit
or restrain the
right of the representative to transfer title or to lease, sell, mortgage or pledge such
personal estate. A lessee, purchaser, mortgagee or pledgee from a representative
under a
power in a will obtains the same title or interest as though the instrument
were executed by
the decedent immediately prior to his death and the rights and claims of
all parties claiming
under or through the decedent shall be transferred to the consideration
received or to be
received from the lease, sale, mortgage or pledge.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-2) (from Ch. 110 1/2, par. 19-2)
Sec. 19-2. Lease, sale, mortgage or pledge of personal estate of ward. By leave
of court a representative may lease, sell, mortgage or pledge any personal estate of the
ward, when in the opinion of the court it is for the best interests of the
ward or his estate.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/19-3) (from Ch. 110 1/2, par. 19-3)
Sec. 19-3.
Mortgage of agricultural commodities.) By leave of
court, a representative of an estate eligible therefor may obtain a loan
and mortgage or pledge for a term of not to exceed one year agricultural
commodities as security for a loan pursuant to the provisions of the
federal Agricultural Adjustment Act of 1938, may execute and deliver
such evidences of indebtedness, security interests, pledges and other documents
as may be required in connection therewith, and may repay the
loan or deliver the commodity mortgaged or pledged therefor in
accordance with the terms upon which the loan is made. The proceeds of
the loan are personal estate in the hands of the representative.
(Source: P.A. 80-662.)
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(755 ILCS 5/19-4) (from Ch. 110 1/2, par. 19-4)
Sec. 19-4.
Petition to lease, sell, mortgage or pledge personal estate-notice.)
Before
leasing, selling, mortgaging or pledging any personal estate the representative
shall file a petition in the court which issued his letters stating the facts and
circumstances on which it is founded and a brief description of the personal
estate sought to be leased, sold, mortgaged or pledged. The court may order
such notice of the time and place of the hearing on the petition to be given to
any interested persons as it deems expedient or the court may hear the petition
without notice.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-5) (from Ch. 110 1/2, par. 19-5)
Sec. 19-5.
Order of sale.) (a) The court shall provide in its order of
sale whether the sale shall be public or private.
(b) A public sale shall be for cash or wholly or partly upon credit of not
more than 12 months by taking a note with good security, as the court directs.
The court shall direct that notice of a public sale be given by either of the
following methods: (1) inserting a notice or advertisement of sale in a newspaper
published in the county where the sale is to be made not less than once nor more than
3 times, as the court directs, the first publication to be not less than 5 nor more
than 21 days before the date of sale, or (2) posting a notice or advertisement of
sale in at least 4 public places in the county where the sale is to be made for a
period specified by the court of not less than 5 nor more than 21 days before the
date of sale.
(c) If the court orders a public sale of both personal and real estate the notice
of public sale may be given as provided in Section 20-7 and both types of property
shall be included in the same publication notice.
(d) A private sale shall be for cash or wholly or partly upon credit with or without
security, as the court directs.
(e) In all public sales of personal estate the representative may employ necessary
clerks and auctioneers who shall receive such compensation as the court
deems reasonable,
to be paid as expenses of administration.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-6) (from Ch. 110 1/2, par. 19-6)
Sec. 19-6.
Operating business of decedent.) (a) Except as otherwise directed
by the decedent in his will or except as otherwise provided by law, a representative
has authority, for the preservation and settlement of the estate of a decedent,
to continue
the decedent's unincorporated business during one month next following the
date of issuance
of his letters unless the court directs otherwise, and for such further
time as the court
from time to time may authorize, without personal liability except for malfeasance or
misfeasance for losses incurred. The court may order such notice of the
time and place of
the hearing on the petition to be given to any interested persons as it
deems expedient or
the court may hear the petition without notice. Obligations incurred or
contracts entered
into are entitled to priority of payment out of the assets of the business, but, without
approval of the court first obtained, do not involve the estate beyond these assets.
(b) During the time the business is so conducted, unless otherwise ordered by the
court, the representative shall file monthly reports in the court, setting
forth the receipts
and disbursements of the business for the preceding month and such other
pertinent information
as the court may require.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-7) (from Ch. 110 1/2, par. 19-7)
Sec. 19-7.
Operating business of ward.) Upon receiving the approval of the court,
a representative may operate any unincorporated business belonging to the
ward or in which
he may have any interest and the court may direct the representative in connection
therewith.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-8) (from Ch. 110 1/2, par. 19-8)
Sec. 19-8.
Compounding, compromising or exchanging personal estate.) By leave of
court without notice or upon such notice as the court directs, a representative
may compound or
compromise any claim or any interest of the ward or the decedent in any
personal estate or exchange
any claim or any interest in personal estate for other claims or personal
estate upon such terms
as the court directs.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-9) (from Ch. 110 1/2, par. 19-9)
Sec. 19-9.
Removal of property.) The representative may not remove any personal
estate of his decedent or ward beyond the limits of this State, without the order of the
court. If the representative removes the estate from this State without order of court
he and his surety may be sued and judgment may be rendered against him and
his surety for
the benefit of the estate for the full value of the personal estate removed and the
damages sustained by the removal.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-10) (from Ch. 110 1/2, par. 19-10)
Sec. 19-10.
Contracts of decedent.) By order of court a contract made
by a decedent may be performed by his representative.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-11) (from Ch. 110 1/2, par. 19-11)
Sec. 19-11.
Desperate personal estate of decedent.) (a) Upon
suggestion made in the final account or report or on petition of a
representative stating that any personal estate of the
decedent other than goods and chattels is of desperate
value and giving the reasons therefor, the court may order
the evidence of the desperate personal estate to be deposited
with the clerk of the court for the benefit of such of the
heirs, legatees or creditors of the decedent as may be entitled
thereto, except that if it appears to the court that the
desperate personal estate or any part thereof is totally
worthless the court may direct the representative to destroy
or otherwise dispose of the evidence thereof and file an
affidavit of destruction or disposition with the clerk.
Notice of the hearing on a petition under this Section
shall be given, as the court directs, to unpaid creditors
and to every person entitled to a share of the estate who
has not received that share in full, but no notice need be
given to any person who waives notice. After the deposit
is made or the affidavit is filed the representative has no
further responsibility with respect to or liability for the
desperate personal estate.
(b) By leave of court any heir, legatee or creditor having
an interest in any deposited personal estate may take action
necessary to realize its value, in the name of the representative
or in his own name. Upon realizing the value of the desperate
personal estate or any part thereof, the heir, legatee or creditor
shall report to the court and be chargeable therewith and, after
deducting his claim or distributive share and reasonable
compensation for realizing the value, shall distribute the
overplus as directed by the court. The representative is not
liable for costs or other expenses incurred in any proceeding
or action under this Section.
(c) At any time after 21 years following the deposit of any
desperate personal estate, by leave of the court, the clerk
may destroy or otherwise dispose of the evidence without notice
or upon such notice to interested persons as the court directs
and shall place a certificate of destruction or of disposition
in the estate file.
Any sums realized from the disposition of said personal property shall
be transferred by the clerk pursuant to an order of court to the county
treasurer of the county in which the estate was administered for deposit
into the general fund of the county.
Any person having a right thereto may file a claim with the court which
ordered the disposition of the property for the sum realized from such
disposition. Upon proof of the claimant's right thereto the court may enter
an order upon the county treasurer to pay the claimant the amount to which
the claimant is entitled without interest.
Unless a claim is filed within one year from the date of the order
transferring the sums realized to the county treasurer said sums shall
escheat to and become the property of the county.
(Source: P.A. 84-555; 84-690.)
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(755 ILCS 5/19-12) (from Ch. 110 1/2, par. 19-12)
Sec. 19-12.
Nominee registration.) Unless otherwise provided by the will, a
representative or his agent, custodian or depositary may cause stocks, bonds and other
personal property of the estate to be registered and held in the name of
a nominee without
mention of the fiduciary relationship in any instrument or record constituting or
evidencing title thereto. The representative is liable for the acts of the nominee with
respect to any property so registered. The records of the representative shall at all
times show the ownership of the property. Any property so registered shall be in the
possession and control of the representative and kept separate from his
individual property.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-13) (from Ch. 110 1/2, par. 19-13)
Sec. 19-13.
Decedent's account books.) The books of account of a decedent are
subject to the inspection of all persons interested therein.
(Source: P.A. 79-328.)
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(755 ILCS 5/19-14)
Sec. 19-14.
Administrator or executor; legal proceeding; participation.
If there is more than one
administrator or executor of a decedent's estate and one of the administrators
or
executors is a corporation qualified to act as a representative of the estate
of a decedent
and if the administrators or executors of the decedent's estate appear for and
represent the estate in a legal proceeding in which the compensation of the
attorney or
attorneys representing the administrators or executors is solely determined
under a
contingent fee arrangement, then upon petition and approval by the court, the
administrator or executor of the decedent's
estate which
is a corporation shall not participate in or have any duty to review the
prosecution of the
action, to participate in or review the appropriateness
of any settlement of the action, or
to
participate in or review any determination of the appropriateness of any fees
awarded to
the attorney or attorneys employed in the prosecution of the action.
(Source: P.A. 92-288, eff. 8-9-01.)
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(755 ILCS 5/Art. XX heading) ARTICLE XX
ADMINISTRATION OF REAL ESTATE
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(755 ILCS 5/20-1) (from Ch. 110 1/2, par. 20-1)
Sec. 20-1.
Administration and possession of decedent's real estate.) (a) Except
as otherwise provided by subsection (b) of this Section or by decedent's will, every
representative shall take possession, subject to the exempt estate of homestead, of all
real estate of the decedent during the period of administration and, while retaining
possession, (1) shall collect the rents and earnings therefrom, (2) shall keep in
tenantable repair the buildings and fixtures, (3) shall pay the taxes, mortgages
and other
liens thereon in accordance with their terms, (4) may protect the real estate
by insurance,
(5) may employ agents and custodians and (6) may make all reasonable expenditures
necessary
to preserve the real estate. He may maintain an action for the possession of or to
determine the title to real estate, except that no action to determine the title to real
estate may be commenced without authorization of the court which issued his letters.
(b) The representative may not take possession of real estate or the portion
thereof occupied
by the heir or legatee thereof as his residence unless otherwise provided
by the decedent's will
or unless the court at any time finds that possession is necessary for the
payment of claims,
expenses of administration, estate or inheritance taxes or legacies, the
preservation of the
real estate, or any part thereof, or the proper distribution of the estate.
(c) Upon petition of any interested person, the court may grant possession
of real estate
on such terms as it deems appropriate to the heir or legatee thereof, if
it appears that the real
estate or income therefrom will not be needed for the payment of claims,
expenses of administration,
estate or inheritance taxes or legacies. An order granting possession of
real estate does not
constitute a determination of title to the real estate.
(d) Nothing in this Section affects the power of the representative to sell or
mortgage any real estate of the decedent under this Act.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-2) (from Ch. 110 1/2, par. 20-2)
Sec. 20-2.
Leasing real estate.
(a) A representative may lease the real estate of a decedent or ward upon
such terms and for such length of time not inconsistent with the provisions of
the decedent's will, if any, as the court may authorize. Real estate
specifically bequeathed may not be leased without the written assent of the
legatee filed with the court.
(b) Before leasing real estate, a representative must file in the court
which issued his letters a petition setting forth a description of the real
estate sought to be leased, its improvements, and the facts and circumstances
upon which the petition is founded. A copy of the proposed lease must be
attached to the petition. Upon the filing of the petition the court shall set
it for hearing not less than 10 days thereafter. It
is the duty of the petitioner to mail a notice of the hearing and a copy of the
petition to the heirs or legatees of the decedent or to the ward, as the case
may be, not less than 5 days prior to the hearing, but where the duration of a
lease of a ward's real estate does not exceed 5 years or extend beyond the
minority of the ward, the court in its discretion may hear the petition without
notice.
(c) A representative who has a lease of farm property owned by a decedent
or ward in existence on or before the date he or she assumed the duty
of representative may continue according to the terms of the lease until
(1) the estate of the decedent is closed, (2) the wardship is terminated, or
(3) a court order is entered finding that the terms of the lease are unfair or
that service as a representative, under the facts before the court, is
incompatible with the representative's operation of the decedent's or ward's
farm property. The fact that the representative receives profits from the
lease is not a violation of the representative's fiduciary duty imposed by this
Act.
(Source: P.A. 89-540, eff. 1-1-97.)
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(755 ILCS 5/20-3) (from Ch. 110 1/2, par. 20-3)
Sec. 20-3.
Sale or mortgage of ward's real estate.) By leave of court and upon such
terms as the court directs, a representative of a ward may sell or mortgage
the ward's real
estate or any interest in real estate including the oil, gas, coal or other
mineral interest
therein, when the court deems it necessary or expedient for the support and education of
the persons entitled thereto under this Act, for the payment of the debts of the ward or
for reinvestment.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-4) (from Ch. 110 1/2, par. 20-4)
Sec. 20-4.
Sale or mortgage of decedent's real estate.) (a) By leave
of court and upon
such terms as the court directs, a representative of a decedent's estate
may sell or mortgage any
real estate or interest therein to which the decedent had claim or title,
including the oil, gas,
coal or other mineral interest therein, when it is necessary for the proper
administration of the
decedent's estate.
(b) Real estate specifically bequeathed or directed by the testator not
to be sold may not
be sold or mortgaged unless necessary for the payment of claims, expenses
of administration or
estate or inheritance taxes or the proper distribution of the estate.
(Source: P.A. 84-395.)
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(755 ILCS 5/20-5) (from Ch. 110 1/2, par. 20-5)
Sec. 20-5.
Procedure for sale or mortgage of real estate.) (a)
Before selling or mortgaging real estate, the representative shall file
a petition in the court which issued his letters setting forth the facts
and circumstances upon which it is founded, a description of the real
estate or interest therein, or of the oil, gas, coal or other mineral
interest involved, the approximate value thereof, the interest of the
ward or decedent therein, and the nature and extent of all liens upon
and other interests, if any, in the real estate, or in the oil, gas,
coal or other mineral interest so far as they may be known to the
petitioner. A copy of the proposed mortgage or of the proposed contract
for sale of the real estate, if any, shall be attached to the petition.
(b) All persons holding liens against or having an interest in the
real estate, or in the oil, gas, coal or other mineral interest or in
any part thereof, described in the petition, in possession or otherwise,
whose rights are sought to be affected by the order, except the ward
shall be made parties defendant.
(c) Upon the filing of the petition, process shall be issued, served
and returned as in other civil cases.
(d) The court shall appoint a guardian ad litem for any party to the
proceeding who is a ward and who is not represented by a guardian. If it
appears that any person not in being upon coming
into being is or may become or may claim to be entitled to any interest
in the property sought to be sold or mortgaged, the court shall appoint
some competent and disinterested person as guardian ad litem to appear
for and represent such interest in the proceeding and to defend the
proceeding on behalf of the person not in being, and any judgment or
order rendered in the proceeding is as effectual for all purposes as
though the person were in being and were a party to the proceeding.
(e) On or before entry of an order authorizing a sale or mortgage
under this Article, it is the duty of the petitioner to comply with the
provisions of Section 12-9.
(Source: P.A. 84-555; 84-690.)
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(755 ILCS 5/20-6) (from Ch. 110 1/2, par. 20-6)
Sec. 20-6.
Power of court.) In any proceeding to sell or mortgage real estate
the court may:
(a) investigate and determine all questions of conflicting and controverted titles
arising between any of the parties, remove clouds from any title or interest involved
therein, and invest the mortgagee or purchaser with a good and indefeasible title to the
property sold or mortgaged;
(b) direct the sale or mortgage of the property free of all mortgage, judgment
or other liens that are due, provide for the satisfaction of all those liens out of the
proceeds of the sale or mortgage and settle and adjust all equities and all questions
of priority among all interested persons;
(c) with the assent of the owner of a mortgage lien that is not due, direct that
the property be sold or mortgaged free of the lien and provide for the satisfaction
of the
lien out of the proceeds of the sale or mortgage;
(d) set off the homestead and order the sale of the balance of the premises, or if
the value of the premises exceeds the exemption and the premises cannot be divided, the
court may order the sale of the whole free of homestead with or without
the consent of the
person entitled thereto and shall ascertain the value of the homestead and shall order
that a sum of money equal to the gross value of the homestead be paid from the proceeds
of the sale to the person entitled thereto;
(e) upon the filing in court of the written consent of the person entitled to an
estate for life or for years, order the sale or mortgage free of the estate, but the
court shall ascertain the value of the estate and order that a sum of money equal to the
gross value of the estate be paid from the proceeds of the sale or mortgage to the
person entitled thereto or that a proper proportion of the proceeds of the
sale or mortgage
as ascertained by the court be invested and the income paid to the person
entitled thereto
during the continuance of the estate;
(f) direct the sale of the property free of any lien or claim for lien of this State
(except the lien for general taxes), provide for the satisfaction of the
lien or claim for lien
out of the proceeds of sale according to its relative priority in respect
to other liens to the
extent the proceeds are available, and adjudicate the priority of the State's
lien or claim for
lien with respect to all other liens against the property. The petition
must describe the
lien of the State. Not less than 20 days before the hearing on the petition,
the petitioner must
notify the Attorney General of the filing of the petition by delivering
or mailing 2 copies of
the petition to the Attorney General's office in Springfield, Illinois.
The petitioner must
file proof of the delivery or mailing in the proceeding in which the estate
is being administered.
The Attorney General may intervene and take such action as he deems expedient
to protect the
interest of the State.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-7) (from Ch. 110 1/2, par. 20-7)
Sec. 20-7.
Place and terms of sale.
(a) The court may designate the
place and manner
of holding the sale, whether private or public, and whether for cash or
on reasonable credit.
The sale may be conducted by means of the Internet or any other electronic
medium as approved by the court.
When mining, oil or gas rights only are sold, the court may require security
of the purchaser
and may direct the sale to be made upon a royalty basis or for a lump sum
in such manner and
upon such terms as appears to the court to be to the best interests of the
estate.
(b) Every public sale under this Article, except a sale conducted by means
of the Internet or another electronic medium, shall be held between the hours
of 10:00 o'clock
in the forenoon and 5:00 o'clock in the afternoon of the same day. Notice
of the time, place
and terms of holding the sale, containing a description of the property
sought to be sold, must
be published once each week for 3 successive weeks, the first publication
to be not less than
25 days prior to the sale, in some newspaper published in the county where
the property sought
to be sold, or the greater part thereof, lies.
A sale conducted by means of the Internet or another electronic medium
shall be conducted according to terms and notice given by means of the Internet
or other electronic medium. The notice required under this paragraph must
include a statement that
public access to the Internet is available at public libraries. Any notice
required under this paragraph is in addition to any other notice
required under this subsection (b).
(Source: P.A. 92-97, eff. 7-18-01.)
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(755 ILCS 5/20-8) (from Ch. 110 1/2, par. 20-8)
Sec. 20-8.
Appointment of appraisers.) The court may appoint 1, 2 or 3
disinterested appraisers, who, after taking an oath fairly to appraise the property,
shall go upon the premises, make an appraisal, and report to the court in writing
the result of the appraisal. The court shall fix a reasonable sum for the
services of the
appraisers, which, with the expenses of the appraisal, shall be allowed as costs. When
the property lies in more than one county the court may appoint appraisers
for the tracts
in each county. If an appraisal is made, the sale may not be made for a sum less than
2/3 of the appraised value of the property to be sold, but each tract need not bring 2/3
of its appraised value if the total sum received for all tracts equals 2/3
of the appraised
value of all tracts.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-9) (from Ch. 110 1/2, par. 20-9)
Sec. 20-9.
Report of sale and approval.) (a) It is the duty of the representative
to present to the court authorizing the sale a verified report of the sale
describing the
property sold and stating the name of the purchaser, the date and the terms of the sale,
and the manner in which the terms of the order were executed, but no report of sale is
required if the sale has been made under a contract authorized by the court upon
petition under Section 20-5. Notice of the hearing on a report of sale, accompanied
by a copy of the report, shall be given as the court directs to all persons who have
entered their appearance in the proceeding.
(b) Upon the hearing the court may approve the report and confirm the sale or
disapprove the report and order the property to be resold.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-10) (from Ch. 110 1/2, par. 20-10)
Sec. 20-10.
Deed or conveyance.) (a) Within 30 days after the court approves
report of sale, it is the duty of the representative to execute and deliver to the
purchaser a deed or other conveyance conveying the interest of the ward or the decedent
in the property ordered to be sold.
(b) If the representative dies, becomes incapacitated or is removed before the
execution of the deed, conveyance or mortgage, his successor in office shall proceed in
the premises and execute the deed, conveyance or mortgage in the same manner as if he
had originally been the petitioner.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-11) (from Ch. 110 1/2, par. 20-11)
Sec. 20-11.
Terms of mortgage.) An order authorizing that a mortgage be made
must designate the time of the maturity thereof, the amount of the indebtedness and
the rate of interest to be paid thereon.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-12) (from Ch. 110 1/2, par. 20-12)
Sec. 20-12.
Accounting for proceeds of sale or mortgage.)
It is the duty of the representative to account for the proceeds of every
sale or mortgage under this
Article in his next current or final account filed in the court where the estate is
being administered.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-13) (from Ch. 110 1/2, par. 20-13)
Sec. 20-13.
Compelling lease, sale or mortgage of real estate.) The court
may make all necessary orders to compel the representative to perform such acts as
may be necessary to lease, sell or mortgage the real estate or interest therein for
any purpose authorized by this Article.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-14) (from Ch. 110 1/2, par. 20-14)
Sec. 20-14.
No strict foreclosure.) No order of strict foreclosure may be
made upon any mortgage executed or joined in under this Article,
but redemption shall be allowed as is provided by law in cases of sale
for the enforcement of a judgment for the payment of money.
(Source: P.A. 83-346.)
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(755 ILCS 5/20-15) (from Ch. 110 1/2, par. 20-15)
Sec. 20-15.
Lease, sale or mortgage of real estate under power in will
or under subsection (i) of Section 28-8.) The provisions of this Article
for the lease, sale or mortgage of real estate or interest therein do not
apply to leases, sales or mortgages made without order of court by a
representative under a power given in the will or under subsection (i) of
Section 28-8, but before making a sale or mortgage of real estate it is the
duty of the representative to comply with the provisions of Section 12-9.
If a contract of the decedent to convey or lease real estate or interest
therein requires the giving of warranties, the instrument given by the
representative in fulfillment of the contract shall contain the warranties
required and they bind the estate as though made by the decedent but do not
bind the representative personally. If a representative leases, sells or
mortgages a decedent's real estate or interest, the lease, sale or mortgage
is valid regardless of the subsequent setting aside of the will or any
other action which might limit or restrain the right of the representative
to lease or to convey title or to mortgage the real estate or interest. A
lessee, purchaser or mortgagee from a representative obtains the same title
or interest as though the instrument were executed by the decedent
immediately prior to his death, and the rights and claims of all parties
claiming under or through the decedent thereupon are transferred to the
consideration received or to be received from such lease, sale or mortgage.
(Source: P.A. 84-555; 84-690.)
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(755 ILCS 5/20-16) (from Ch. 110 1/2, par. 20-16)
Sec. 20-16.
Completion of decedent's contract to purchase real estate.) (a)
When a decedent has contracted to purchase real estate and the payment therefor has not
been completed, the representative may file a petition in the court which issued his
letters asking for leave to complete the payment therefor or for directions as to the
manner in which he may proceed with respect to the real estate. The court may authorize
the payment out of the estate of the decedent in the name of the representative or the
persons entitled to the estate, or may direct the representative as to the manner in
which he shall deal with the real estate. This Section does not
supersede the provisions of the will of the decedent or the rights of the vendor under
the contract of sale.
(b) The petition must state a description of the real estate involved, the
nature of the improvements thereon, if any, an estimate of the value of the real
estate and the amount unpaid on the purchase price thereof. Notice of the time and
place of the hearing on the petition must be given as the court directs or the court
may hear the petition without notice if it finds that notice is not required to be given
to any interested person to protect his interests.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-17) (from Ch. 110 1/2, par. 20-17)
Sec. 20-17.
Completion of contract to convey or lease real estate.) Upon
petition of a representative of a decedent's or ward's estate or other interested
person,
the court, without notice or upon such notice as it orders, may direct the
representative
to perform a contract of the decedent or ward, which was legally subsisting at the time
of his death or adjudication, to convey real estate or interest therein and to execute a
deed, lease or other instrument in fulfillment thereof. The petition must show the
description of the real estate and the facts upon which the right to a conveyance or
lease is based. The court may authorize the representative to waive a default or to
compound or compromise any balance due upon such terms as the court orders. If the
contract requires the giving of warranties, the instrument to be given by
the representative
shall contain the warranties required and they shall bind the estate as
though made by the
decedent or ward but shall not bind the representative personally.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-18) (from Ch. 110 1/2, par. 20-18)
Sec. 20-18.
Effect of proceedings.) All deeds or conveyances executed
by a representative to the purchaser under this Act convey to and vest in
the purchaser all the estate, right, title and interest, legal or equitable,
of the decedent or ward in the real estate or interest therein sold. All
mortgages executed by a representative under this Act convey to and vest
in the mortgagee all the estate, right, title and interest, legal or equitable,
of the decedent or ward in the property mortgaged for the purpose, and as
security for the indebtedness, described in the mortgage and intended to
be secured thereby.
(Source: P.A. 80-808.)
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(755 ILCS 5/20-19) (from Ch. 110 1/2, par. 20-19)
Sec. 20-19.
No exoneration of encumbered interests in real estate.) Except
as otherwise expressly provided by decedent's will:
(a) When any real estate or leasehold estate in real estate subject to an encumbrance,
or any beneficial interest under a trust of real estate or leasehold estate
in real estate
subject to an encumbrance, is specifically bequeathed or passes by joint
tenancy with right
of survivorship or by the terms of a trust agreement or other nontestamentary
instrument,
the legatee, surviving tenant or beneficiary to whom the real estate, leasehold
estate or
beneficial interest is given or passes, takes it subject to the encumbrance and is not
entitled to have the indebtedness paid from other real or personal estate
of the decedent.
(b) If the representative pays all or any part of the indebtedness from assets
other than the real estate, leasehold estate or beneficial interest or the income or
proceeds therefrom, he is entitled to reimbursement from the legatee, surviving
tenant or beneficiary and, in the event of nonreimbursement, the court may adjudge a
lien on the real estate, leasehold estate or beneficial interest for the amount so paid
with interest.
(c) If the encumbrance embraces or extends to other property, the reimbursement shall
be limited to the portion of the amount paid by the representative which
the value of the
real estate, leasehold interest or beneficial interest bears to the value
of all property
subject to the encumbrance as of the date of the decedent's death.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-20) (from Ch. 110 1/2, par. 20-20)
Sec. 20-20.
Leasing for oil, gas, coal and other mineral
developments.) (a) A representative may lease for oil, gas, coal or
other mineral development, the real estate or any interest in real
estate of the decedent or the ward upon such terms and conditions as the
court may authorize. This includes the authority to join or participate
in a cooperative coal marketing association or similar entity.
(b) The lease for oil, gas and other minerals, except coal, may be for
a term not exceeding 10 years and for as
long thereafter as oil, gas, or other minerals except coal,
may be produced from
the premises embraced in the lease even though in the case of a ward the
term of the lease may exceed the period of disability of the ward. The lease
for coal or participation in a cooperative coal marketing association
or similar entity, may be for a term not exceeding 15 years and for as long
thereafter as coal may be produced from the mining area described in the
lease or the cooperative coal marketing association agreement even though
in the case of a ward the term of the lease or the cooperative coal
marketing association may exceed the period of disability of the ward.
(c) The representative shall file in the court of the county where
his letters were issued, a petition for authority to lease the real
estate or interest therein for oil, gas, coal or other mineral
development. The petition must set forth the description of the real
estate or interest therein to be leased and the reasons it is for the
best interests of the estate of the decedent or the ward to enter into
the lease. A copy of the proposed lease must be attached to the
petition.
(d) Upon the filing of the petition, the court shall set it for
hearing not less than 10 days thereafter. It is the duty of the
petitioner to mail a notice of the hearing and a copy of the petition to
the heirs or legatees of the decedent or to the ward, as the case may be,
not less than 5 days before the hearing. No guardian ad litem need be appointed
for any ward unless the court finds it necessary for his protection.
(e) Upon the hearing the court may authorize the representative to
execute and deliver a lease of the real estate or interest therein by a
private letting with the proposed lessee on the form proposed or such
form as is satisfactory to the court, or the court may order the leasing
of the real estate or interest therein to be conducted at a public
letting. If a public letting is ordered, the court shall designate the
time, place and manner of holding the letting and the time and manner in
which notice thereof shall be given. In case of a public letting, it is
the duty of the representative to file with the court, within 10 days
after the letting, a verified report describing the real estate or
interest therein let, the name of the lessee, the terms of the letting,
and the manner in which the terms of the order of the court were
executed. Within 5 days after the time for filing the report has
expired any person interested in the property leased may file objections
to the report. Upon the hearing, the court may approve the report,
confirm the letting, and authorize the representative to execute and
deliver the lease or disapprove the report and order the property to be
reoffered. When the making of a lease has been authorized as provided
in this Section, it shall be executed by the representative and shall be
valid and binding.
(f) Upon the filing of a petition and upon such notice as the court
directs, the court may authorize a representative who has leased the
real estate or interest therein of the decedent or ward for oil, gas,
coal or other mineral purposes to enter into agreements unitizing any
part or all of the real estate or interest therein so leased with
adjacent lands so that the entire unitized tract may be developed and
operated as a unit for the production of oil, gas, coal and other
minerals, or any of them. In like manner, the court may authorize a
representative to execute agreements supplemental to or amendatory of
any oil, gas, coal or mineral leases, including without being limited to
agreements relating to secondary recovery operations on the lands of the
decedent or ward alone or in conjunction with other lands.
(g) The court may authorize a representative to sell upon such terms
as the court directs all or any part of the oil, gas, coal or other
mineral estate reserved to the lessor in any lease, including all or
part of the royalty or other income reserved to the lessor by the lease,
by following the procedure provided in this Act for the sale of real
estate.
(Source: P.A. 81-401.)
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(755 ILCS 5/20-21) (from Ch. 110 1/2, par. 20-21)
Sec. 20-21.
Joining with spouse of ward in sale or mortgage.) By leave of the court
and upon such terms as the court directs, a representative of a ward may
join in the execution
and delivery of a deed or mortgage in the name of the ward or otherwise
release or convey the
right of the ward to homestead. Leave of court must be obtained in the
same manner as nearly
may be as in the case of leasing a ward's real estate.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-22) (from Ch. 110 1/2, par. 20-22)
Sec. 20-22.
Assent to sale free of ward's interest.) When any court in this State is
about to order the sale of real estate in which a ward has an estate of
homestead or any other
interest, the representative may assent in writing on behalf of the sale
of the homestead or
other interest of the ward pursuant to the direction of the court by which
the representative
was appointed. On the filing of the assent in the court in which the proceeding
for the sale
of the real estate is pending, that court may order the sale of the real estate
free of the homestead or other interest of the ward, but the court shall
ascertain the value of the homestead or other interest and order that a
sum of money equal
to the gross value of the homestead or other interest be paid from the proceeds
of the sale
to the representative, less any portion of the costs equitably chargeable
to the ward's interest.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-23) (from Ch. 110 1/2, par. 20-23)
Sec. 20-23.
Representative may be authorized to pay taxes.) When it appears
to the
court that it is for the interest of any estate being administered in that
court that the taxes
on real estate forming a part of the estate not in possession of the
representative
under
Section 20-1 be paid, the court may authorize the representative to pay taxes
from any
money on hand.
(Source: P.A. 79-328.)
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(755 ILCS 5/20-24) (from Ch. 110 1/2, par. 20-24)
Sec. 20-24.
Notice of probate - Recorder's filing.
(a) If a decedent's
estate in supervised or independent administration includes an interest
in real estate that is not sold or conveyed by the representative during
administration, the representative shall sign and record a notice of probate.
The notice shall include the decedent's name, address and date of death,
the legal description and street address (if any) of the real estate, the
court name and case number to identify the estate, the date the representative
was appointed, and the representative's name and address. The notice shall
be recorded in the county where the real estate is located before the representative
is discharged.
(b) Any heir or legatee who claims title to an interest in real estate
from a decedent for whose estate no notice has been recorded under subsection
(a) of this Section (or any successor in interest to such an heir or legatee)
may record a notice of probate in substantially the same form as that required
in subsection (a).
(c) A representative acting under independent administration may combine
in one instrument the notice of probate and release as provided in Section 28-10.
(Source: P.A. 85-376.)
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(755 ILCS 5/Art. XXI heading) ARTICLE XXI
INVESTMENTS BY REPRESENTATIVE
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(755 ILCS 5/21-1) (from Ch. 110 1/2, par. 21-1)
Sec. 21-1.
Investments - decedent's estate.) In addition to any investments
which a decedent may authorize his executor to make by the terms of his will, the
representative of his estate, in his discretion, may invest money of the estate of a
decedent in any one or more of the investments specified in Sections 21-1.01
through 21-1.07.
(Source: P.A. 84-494.)
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(755 ILCS 5/21-1.01) (from Ch. 110 1/2, par. 21-1.01)
Sec. 21-1.01.
Direct obligations of the United States or any instrumentality or agency
thereof or obligations fully guaranteed by the United States, or any instrumentality
or agency thereof, if the maturity date of the obligations is no longer than 5 years
from the date of purchase.
(Source: P.A. 79-328.)
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(755 ILCS 5/21-1.02) (from Ch. 110 1/2, par. 21-1.02)
Sec. 21-1.02.
Obligations of a local public agency (as defined in Section
110(h) of the
federal Housing Act of 1949) or of a public housing agency (as defined in the federal
Housing Act of 1937, as amended) which have a maturity of not more than
18 months if such
obligations are secured by an agreement between the obligor agency and the Secretary of
Housing and Urban Development in which the agency agrees to borrow from the Secretary,
and the Secretary agrees to lend to the agency, prior to the maturity of
such obligations,
money in an amount which (together with any other money irrevocably committed to the
payment of interest on such obligations) will suffice to pay the principal of such
obligations with interest to maturity, which money under the terms of the agreement is
required to be used for that purpose.
(Source: P.A. 79-328.)
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(755 ILCS 5/21-1.03) (from Ch. 110 1/2, par. 21-1.03)
Sec. 21-1.03.
Savings accounts or certificates of deposit of a state bank
or a national
bank doing business in Illinois to the extent that the deposits are insured by the
United States or any agency thereof, even though the bank of deposit is
the representative
of the estate, but this authority does not affect the power of a representative
to establish a checking account or continue in his or the decedent's
name a decedent's savings deposit, time certificate of deposit or
checking account in any amount.
(Source: P.A. 79-328.)
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(755 ILCS 5/21-1.04) (from Ch. 110 1/2, par. 21-1.04)
Sec. 21-1.04.
Withdrawable capital accounts, deposits, investment certificates
or certificates of deposit of a state savings and loan association or a
federal savings and loan association doing business in this State to the
extent that such accounts, deposits or certificates are insured by the United
States or any agency thereof.
(Source: P.A. 81-403.)
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(755 ILCS 5/21-1.05) (from Ch. 110 1/2, par. 21-1.05)
Sec. 21-1.05.
Interests in one or more common trust funds, as
defined in and from time to time established, maintained and
administered pursuant to the Common Trust Fund Act, the investments of
which are not restricted to the investments otherwise
authorized for representatives by Sections 21-1.01 through 21-1.04 and 21-1.06
of this Act, provided that the investment in such common trust fund
meets the standard of the prudent person rule for the investment
of trust funds; and provided further that in the case of an administrator,
the approval of the court, by written order, be first obtained.
(Source: P.A. 84-494.)
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(755 ILCS 5/21-1.05a) (from Ch. 110 1/2, par. 21-1.05a)
Sec. 21-1.05a.
Interests in any open-end registered investment company
registered under the federal Investment Company Act of 1940, provided that
the portfolio of any such company is limited to securities and investments
authorized for investment by representatives in Sections 21-1.01 through
21-1.06 of this Act and to agreements to repurchase such obligations, which
agreements, with respect to principal and interest are (1) at least 100%
collateralized by such obligations marked to market on a daily basis, and
(2) the investment company takes delivery of such obligations either
directly or through an independent custodian. To the extent that such
investment company engages in when issued or delayed
delivery transactions, it may do so only as a part of its normal security
acquisition practices and not as a means of speculating on interest rates.
(Source: P.A. 85-639.)
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(755 ILCS 5/21-1.06) (from Ch. 110 1/2, par. 21-1.06)
Sec. 21-1.06.
Any other investments authorized by a court
of competent jurisdiction or which from time to time have been or may
be expressly declared by the General Assembly to be legal investments by representatives
of decedents' estates.
(Source: P.A. 79-328.)
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(755 ILCS 5/21-1.07) (from Ch. 110 1/2, par. 21-1.07)
Sec. 21-1.07.
Interests in any open-end or closed-end management type
investment company or investment trust (hereafter referred to as a "mutual
fund") registered under the
Investment Company Act of 1940, the investments of which are not restricted to
the investments otherwise authorized for representatives in
Sections
21-1.01 through 21-1.06 of this Act, including without limitation a mutual
fund that receives services from or pays fees to the representative or its
affiliate, provided that the investment in the mutual fund or funds meets the
standard of the prudent investor rule for the investment of trust funds.
A representative or its affiliate is not required to reduce or waive
its compensation for services provided in connection with the investment and
administration of the estate because the representative invests, reinvests, or
retains estate assets in a mutual fund for which it or its affiliate
provides services and receives compensation, if the total compensation
paid by the estate as fees of the representative and mutual fund fees,
including
any advisory or management fees, is reasonable. However, a
representative may receive fees equal to the amount of those fees
that would be paid to any other party under Securities and Exchange Commission
Rule 12b-1.
(Source: P.A. 89-344, eff. 8-17-95.)
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(755 ILCS 5/21-2) (from Ch. 110 1/2, par. 21-2)
Sec. 21-2.
Investments; ward's estate.
(a) It is the duty of the
representative to invest the ward's money. A representative is chargeable
with interest at a rate equal to the rate on 90-day United
States Treasury Bills upon any money that the representative
wrongfully or negligently allows to remain uninvested after it
might have been invested. Reasonable sums of money retained uninvested
by the representative in order to pay for the current or imminent expenses
of the ward shall not be considered wrongfully or negligently uninvested.
(b) Upon receiving the approval of the court, a representative may hold
any investments,
or any increase thereof, received by the representative at the time
of the representative's appointment
or acquired by the ward,
although the investment is not otherwise authorized under this Act, and
the court has power
to direct the representative in connection therewith.
(c) A representative may invest only in the types of
property specified in Sections 21-2.01 through 21-2.15.
(Source: P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.01) (from Ch. 110 1/2, par. 21-2.01)
Sec. 21-2.01.
Obligations of the United States.
(Source: P.A. 84-494.)
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(755 ILCS 5/21-2.02) (from Ch. 110 1/2, par. 21-2.02)
Sec. 21-2.02.
Obligations of which both the principal and interest are
guaranteed unconditionally by the United States.
(Source: P.A. 84-494.)
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(755 ILCS 5/21-2.03) (from Ch. 110 1/2, par. 21-2.03)
Sec. 21-2.03.
Obligations of any corporation wholly owned, directly or
indirectly, by the United States or any agency or instrumentality of the
United States.
(Source: P.A. 84-494.)
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(755 ILCS 5/21-2.04) (from Ch. 110 1/2, par. 21-2.04)
Sec. 21-2.04.
Insured accounts, deposits, and certificates.
Withdrawable capital accounts, deposits,
investment certificates or certificates of deposit of state and federal
savings and loan associations but, unless otherwise authorized by a court
of competent jurisdiction, only to the extent that the accounts, deposits
or certificates are insured by the United States or any of its agencies, and
share accounts in federal and state credit unions if the
credit unions are insured by the National Credit Union Administration.
Amounts invested in a savings and loan association in excess of the amount
insured by the United States or any of its agencies shall be
secured by a surety bond taken from a surety authorized to transact
business in this State in such sum, under such conditions, and with such
security sufficient to save the estate from loss.
(Source: P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.05) (from Ch. 110 1/2, par. 21-2.05)
Sec. 21-2.05.
Municipal bonds.
Instruments providing for the payment of money executed by or on behalf of any
state of the United States or the District of Columbia or any governmental
entity organized by or under the laws of any state of the United States or the
District of Columbia, to carry out a public governmental or proprietary
function, acting through its corporate authorities, or that any governmental
entity has assumed or agreed to pay and that, at the time of investment, have
been given one of the top 4 rating grades by a nationally recognized rating
service.
(Source: P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.06) (from Ch. 110 1/2, par. 21-2.06)
Sec. 21-2.06.
Savings and time deposit certificates of a state bank
or a national bank doing business in this State but, unless otherwise
authorized by a court of competent jurisdiction, only to the extent that such
deposits are insured by the United States or any agency thereof, even
though the bank of deposit is the representative of the ward's estate. Amounts
deposited in savings and time deposit certificates of such bank in excess
of the amount insured by the United States or any agency thereof shall be
secured by a surety bond taken from a surety authorized to transact business
in this State in such sum, under such conditions and with such security
sufficient to save the estate from loss.
(Source: P.A. 83-1445.)
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(755 ILCS 5/21-2.07) (from Ch. 110 1/2, par. 21-2.07)
Sec. 21-2.07.
Notes secured by real estate.
All of the notes secured by
a first mortgage or trust deed upon improved or income producing real
estate situated in this State and not exceeding two-thirds of the
value thereof at the time of the investment.
(Source: P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.08) (from Ch. 110 1/2, par. 21-2.08)
Sec. 21-2.08.
Corporate obligations.
Obligations of any company
incorporated under the
laws of the United States or of any state of the United States or the
District of Columbia that, at the time of investment, have been given one
of the top 4 rating grades by a nationally recognized rating service.
(Source: P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.09) (from Ch. 110 1/2, par. 21-2.09)
Sec. 21-2.09.
(Repealed).
(Source: P.A. 79-328. Repealed by P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.10) (from Ch. 110 1/2, par. 21-2.10)
Sec. 21-2.10.
Real estate located in any state of the United
States or the District of Columbia.
(Source: P.A. 79-328.)
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(755 ILCS 5/21-2.11) (from Ch. 110 1/2, par. 21-2.11)
Sec. 21-2.11.
Life, endowment, or annuity policies.
Life, endowment, or
annuity policies on the life of the ward, or on the life of any person in whose
life the ward has an insurable interest, if the ward is the beneficiary, when
the policies are issued by companies, associations or fraternal organizations
that, at the time of investment, have been given one of the top 4 rating grades
by a nationally recognized rating service. The order may authorize the
payment of annual premiums without further application to the court.
(Source: P.A. 90-796, eff. 12-15-98; 91-357, eff. 7-29-99.)
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(755 ILCS 5/21-2.12) (from Ch. 110 1/2, par. 21-2.12)
Sec. 21-2.12.
Stock.
Shares of any corporation
with a market capitalization of over $200,000,000 if the shares are listed and
registered on an exchange registered with the Securities and Exchange
Commission as a national securities exchange or an electronic securities
quotation system regulated by the Securities and Exchange Commission.
No investment in shares of a corporation may be made under this Section
that, at the time such investment is made, would cause the market
value of all stock held in the ward's estate to exceed two-thirds of the
market value of the estate then held by the representative.
(Source: P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.13) (from Ch. 110 1/2, par. 21-2.13)
Sec. 21-2.13.
Common trust funds.
Interests in one or more common trust
funds, as defined in and from time to time established, maintained and
administered pursuant to the Common Trust Fund Act, the investments of which
are not restricted to the investments otherwise authorized for representatives
by Sections 21-2.01 through 21-2.12 and 21-2.14 of this Act, provided that the
investment in such common trust fund meets the standard of the prudent investor
rule for the investment of trust funds.
(Source: P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.13a) (from Ch. 110 1/2, par. 21-2.13a)
Sec. 21-2.13a.
(Repealed).
(Source: P.A. 85-639. Repealed by P.A. 90-796, eff. 12-15-98.)
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(755 ILCS 5/21-2.14) (from Ch. 110 1/2, par. 21-2.14)
Sec. 21-2.14.
Mutual funds.
Interests in any open-end management type
investment company or investment trust (hereafter referred to as a "mutual
fund") registered under the
Investment Company Act of 1940, the investments of which are not restricted to
the investments otherwise authorized for
representatives in Sections 21-2.01 through 21-2.13 and 21-2.15, including
without limitation a mutual fund that receives services from or pays fees
to the representative or its affiliate, provided that the investment in
the mutual fund or funds meets the standard of the prudent investor rule for
the investment of trust funds. A representative or its affiliate is
not required to reduce or waive its compensation for services provided in
connection with the investment and administration of the estate because the
representative invests, reinvests, or retains estate assets in a mutual fund
for
which it or its affiliate provides services and receives compensation
if the total compensation paid by the estate as fees of the representative
and mutual fund fees, including any advisory or management fees, is reasonable.
However, a representative may receive fees equal to
the amount of those fees that would be paid to any other party under Securities
and Exchange Commission Rule 12b-1.
(Source: P.A. 89-344, eff. 8-17-95.)
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(755 ILCS 5/21-2.14a)
Sec. 21-2.14a.
Illinois prepaid tuition contract.
An Illinois prepaid
tuition contract, as defined under the Illinois Prepaid Tuition Act.
(Source: P.A. 91-867, eff. 6-22-00.)
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(755 ILCS 5/21-2.15) (from Ch. 110 1/2, par. 21-2.15)
Sec. 21-2.15.
Any other investments which from time to time
have been or may be expressly declared by the General Assembly to be
legal investments for representatives of wards' estates.
(Source: P.A. 84-494.)
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(755 ILCS 5/Art. XXII heading) ARTICLE XXII
NONRESIDENT REPRESENTATIVE
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(755 ILCS 5/22-1) (from Ch. 110 1/2, par. 22-1)
Sec. 22-1.
Power to collect and remove personal estate.)
A representative to whom letters are issued on the estate of a nonresident decedent
or ward by a court of competent jurisdiction of any other state,
territory, country or the District of Columbia may collect and receive any
personal estate in this State of the decedent or ward and
remove it to the jurisdiction in which his letters are issued upon delivering
to the person or corporation indebted to or holding the personal estate of the
decedent or ward, the following: (a) an affidavit by the representative
that to his knowledge no letters, which have been issued upon the petition
of an heir, legatee
or creditor of the decedent or kindred of the ward, are then outstanding
on the estate in this
State, no petition for letters by an heir, legatee or creditor of the decedent or
kindred of the ward is pending on the estate in this State, and there are no
creditors of the estate in this State, and (b) a copy of his letters certified within 60
days before the date of presentation. Upon payment or delivery of the assets,
after receipt of the affidavit and certified copy, the person or corporation
is released to the same extent as if the payment or delivery had been made to a
legally qualified resident representative and is not required to see to the
application or disposition of the property; but no payment or delivery may be made
sooner than 30 days after decedent's death.
(Source: P.A. 79-328.)
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(755 ILCS 5/22-2) (from Ch. 110 1/2, par. 22-2)
Sec. 22-2.
Transfer of estate of nonresident ward to nonresident representative
when letters issued in this State.) If it appears to the court of this State which has
appointed a representative of the estate of a nonresident ward that
the removal of the ward's estate will not conflict with the interest of
the ward, the terms of
limitations attending the right by which the ward owns the estate or the
rights of creditors, the
court may order the resident representative to pay and deliver to the nonresident
representative the whole
or any part of the ward's estate. The order may be entered only upon petition
of the nonresident representative and the production of a copy of his letters
authenticated
within 60 days before the date of presentation. Unless excused by the court for
good cause shown, 10 days' notice of the hearing on the petition shall be given
to the resident representative.
(Source: P.A. 79-328.)
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(755 ILCS 5/22-3) (from Ch. 110 1/2, par. 22-3)
Sec. 22-3.
Right to sue.) If no letters are issued in this State upon
the estate of a nonresident decedent or ward, a representative to whom letters
are issued
on the estate by a court of competent jurisdiction of any other state, territory,
country
or the District of Columbia may sue in this State in any case in which a
resident representative may sue. The court in which the suit is filed
may order the nonresident representative to give bond for costs as in case of other
nonresidents.
(Source: P.A. 79-328.)
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(755 ILCS 5/22-4) (from Ch. 110 1/2, par. 22-4)
Sec. 22-4.
Lease, sale or mortgage of real or personal estate.) (a) If
no letters are issued in this State upon the estate of a decedent who at
the time of his death owned
real or personal estate or any interest therein within this State or upon the estate
of a ward who owns real or personal estate or any interest therein
within this State and if any person is appointed in any other state,
territory, country or the District of Columbia as representative
of the estate of the decedent or as guardian, conservator, committee or in
any like capacity for the ward, the person so appointed may file his
petition for leave to lease, sell or mortgage the real or personal estate
or the mining, oil or gas rights or other interest therein for any of the purposes
for which a representative appointed in this State may lease, sell
or mortgage under this Act or for such other purposes as the court which
appointed such person
may direct. A petition under this Section must be filed in the court of the county
in which the personal estate, or the greater part thereof, or the real estate,
or the greater part thereof, as the case may
be, may be located.
(b) The nonresident representative must file with the petition: (1)
a copy of his letters authenticated within 60 days before the date of presentation, (2)
an authenticated copy of the order of the court which issued letters to
him authorizing him to
apply to a court in this State for leave to lease, sell or mortgage the property,
(3) an authenticated copy of any bond required by the court which issued letters to him
and (4) an authenticated copy of the order of the court
which issued letters to him approving any bond required to be filed.
(c) The practice and procedure in the proceedings
commenced by a nonresident representative
are the same, as near as may be, as the practice and procedure in similar
proceedings brought
by resident representatives.
(Source: P.A. 79-328.)
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(755 ILCS 5/22-5) (from Ch. 110 1/2, par. 22-5)
Sec. 22-5.
Letters issued in this State.) If after any proceedings
are commenced by a nonresident representative under Section 22-3 or 22-4,
letters are issued on the estate of the decedent or ward in this State,
on motion the resident representative shall be substituted as petitioner in
the proceedings, which shall be heard and determined as if originally instituted
by the resident representative and the benefits of the judgment or order shall
inure to him and are assets in his hands.
(Source: P.A. 79-328.)
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(755 ILCS 5/22-6) (from Ch. 110 1/2, par. 22-6)
Sec. 22-6.
Deed by foreign executor under will.) A deed
executed under the power vested in a representative to whom letters of office
were issued
by any court of competent jurisdiction in any other state of the United States
or the District of Columbia under a foreign will admitted to probate in that
jurisdiction is evidence of title in the grantee to the same extent
as was vested in the testator at the time of his death, if the will is admitted
to probate in the court of the proper county in this State before delivery
of the deed, unless letters of office on the estate of the decedent have
been issued in this State and remain unrevoked.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. XXIII heading) ARTICLE XXIII
RESIGNATION AND REMOVAL
OF REPRESENTATIVE
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(755 ILCS 5/23-1) (from Ch. 110 1/2, par. 23-1)
Sec. 23-1.
Resignation.) Upon petition of a representative, the court may permit
him to resign. The petition may be heard without notice or after giving
notice to such persons and in such manner as the court directs.
If the petitioner is permitted to resign the court shall revoke his letters.
(Source: P.A. 79-328.)
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(755 ILCS 5/23-2) (from Ch. 110 1/2, par. 23-2)
Sec. 23-2. Removal.
(a) On petition of any interested person or on
the court's own motion, the court may remove a representative if:
(1) the representative is acting under letters | ||
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(2) the representative is adjudged a person subject | ||
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(3) the representative is convicted of a felony;
(4) the representative wastes or mismanages the | ||
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(5) the representative conducts himself or herself in | ||
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(6) the representative fails to give sufficient bond | ||
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(7) the representative fails to file an inventory or | ||
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(8) the representative conceals himself or herself so | ||
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(9) the representative becomes incapable of or | ||
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(10) there is other good cause.
(b) If the representative becomes a nonresident of the
United States, the court may remove the representative as such
representative.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/23-3) (from Ch. 110 1/2, par. 23-3)
Sec. 23-3.
Procedure on removal.) (a) Before removing a
representative for any of the causes set forth in Section 23-2, the court shall
order a citation to issue directing the respondent to show cause why he
should not be removed
for the cause stated in the citation. The citation must be served not less than 10 days
before the return day designated in the citation and must be served and
returned in the manner
provided for summons in civil cases. The address recorded by the representative
with the
clerk of the court shall be considered the place where citations, notices or other
process may be served upon him.
(b) If (1) the petitioner or his attorney files in the office of the
clerk of the court an affidavit stating that the respondent resides or has
gone out of this State, is concealed within this State, or on due inquiry
cannot be found
so that the citation cannot be served on him, and stating the last known post
office address of the respondent or (2) the citation is issued on the court's own
motion and is not served on the respondent, the clerk shall prepare a notice which
must state the name of the decedent or ward, the number of the case, the
name of the person to whom the notice is given, the alleged cause of removal
and place of hearing and shall direct the respondent to appear and show cause
why he should not be removed. Not less than 15 days before the return day designated
in the notice, the clerk of the court shall send by registered mail one
copy of the notice to the respondent at his last known post office address as
stated in the affidavit if one is filed, one copy of the notice to the respondent at
his last known post office address as shown by the last document filed
in the court in which he stated his post office address and one copy of the notice to
his attorney of record.
(c) The representative whose removal is sought may file a pleading
to the petition or charges for removal on or before the return day designated in the
citation or notice or within such further time as the court permits.
If on the hearing the court finds that he should be removed for any cause listed
in Section 23-2, the court may remove him and revoke his letters.
(d) The court may assess the costs of the proceeding against a representative
who is removed for any cause listed in Section 23-2.
(Source: P.A. 79-328.)
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(755 ILCS 5/23-4) (from Ch. 110 1/2, par. 23-4)
Sec. 23-4.
Transfer to another county in the State.) If it appears to the
court in which a ward's estate is being administered that the interests of the ward are
best served by the transfer of the administration of the ward's
estate to another county in this State by reason of the residence of the ward
or of the representative or of the location of the major portion of the ward's
property in that county, the court may enter an order in the estate transferring
the administration
of the estate to the court of that county. Upon the filing of authenticated
copies of the
order of transfer and of all documents filed and all orders entered in the court
from which the transfer is made and the qualifying by the representative in the court
to which the transfer is made, that court shall enter the estate upon its docket,
issue letters of office and direct the administration of the estate as if letters of
office had originally issued from that court. Upon the filing of
an authenticated copy of the letters in the court from which the
transfer is made, the letters issued by that court shall be revoked.
The representative shall file in the court to which the transfer is made
authenticated copies of his final account and all orders in connection
therewith entered in the court from which the transfer is made.
Authenticated copies of documents and orders of the court from which
the transfer is made have the same force and effect as if the documents were filed or
the orders entered in the court to which the transfer is made.
(Source: P.A. 79-328.)
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(755 ILCS 5/23-5) (from Ch. 110 1/2, par. 23-5)
Sec. 23-5.
Letters revoked when will is produced.) If the will of a
decedent is admitted to probate after letters of administration have been issued on
his estate, the letters of administration shall be revoked.
(Source: P.A. 79-328.)
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(755 ILCS 5/23-6) (from Ch. 110 1/2, par. 23-6)
Sec. 23-6.
Letters revoked when will is set aside.) If a will which has
been admitted to probate is set aside after letters of office are issued
thereon, the letters shall be revoked.
(Source: P.A. 79-328.)
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(755 ILCS 5/23-8) (from Ch. 110 1/2, par. 23-8)
Sec. 23-8.
Acts done before revocation of letters are valid.) If the
letters of a representative are revoked, all acts done by him according to law
before the revocation of his letters are valid.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. XXIV heading) ARTICLE XXIV
ACCOUNTS
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(755 ILCS 5/24-1) (from Ch. 110 1/2, par. 24-1)
Sec. 24-1.
Duty to account.) (a) Except as provided in subsection
(b), within 60 days after the expiration of
12 months after the issuance of letters or within such further
time as the court allows
and thereafter whenever required by the court until the administration
is completed, and if the letters are revoked, within such time as the court
directs, every representative of a decedent's estate shall prepare and present a
verified account of his administration to the court which issued
his letters. The account shall state the receipts and
disbursements of the representative since his last accounting and all
real and personal estate which is on hand and shall be accompanied
by such evidence of the disbursements as the court may require.
(b) If written consents of all interested persons are filed in the
court, the court may excuse the preparation and presentation of an account,
subject to such conditions as the court deems appropriate.
(Source: P.A. 84-555; 84-690.)
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(755 ILCS 5/24-2) (from Ch. 110 1/2, par. 24-2)
Sec. 24-2.
Notice of accounting - effect.) Notice of the hearing
on any account of a representative of a decedent's estate shall be given
as the court directs to unpaid creditors and to all other interested
persons. If the account is approved by the court upon the hearing, in the
absence of fraud, accident or mistake, the account as approved is binding
upon all persons to whom the notice was given. No notice, however, shall
be required under this Section either (a) to any person
from whom a receipt in full is exhibited to the court or who waives
notice, or (b) whenever a trustee of a trust is an interested person, to any
beneficiary of the trust by reason of the beneficiary's interest in the
trust, but a trustee given notice of an account under this Section shall be
liable to the trust beneficiaries for any breach of fiduciary duty by the
trustee in connection with the account.
(Source: P.A. 85-994.)
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(755 ILCS 5/24-3) (from Ch. 110 1/2, par. 24-3)
Sec. 24-3.
Order of distribution, abatement and contribution on settlement
of estate.) (a) The court may enforce the settlement of estates. On every settlement
the court may order the representative of a decedent's estate to pay the
claims against the estate, as provided in Section 18-13. If it appears
that there are sufficient assets to pay all claims against the
estate the court may order the representative to distribute the estate
to the persons entitled thereto.
(b) Unless otherwise provided by the will, if the estate of a
testator is insufficient to pay all legacies under his will,
specific legacies shall be satisfied pro rata before
general legacies, and general legacies shall be satisfied pro rata, without
any priority in either case as between real and personal estate.
(c) If real or personal estate which has been specifically bequeathed
is sold by the representative, the other legatees shall contribute to the legatee
whose legacy has been sold, so as to accomplish abatement and equalization
as provided in this Section. The court shall determine the amount of the
respective contributions, the manner in which they shall be paid, and whether with
or without security.
(d) On final distribution of an estate, payments made from
principal or income shall be accounted for as provided in Sections 5 and
6 of the
Principal and Income Act.
(Source: P.A. 84-395.)
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(755 ILCS 5/24-4) (from Ch. 110 1/2, par. 24-4)
Sec. 24-4.
Distribution before the expiration of the period when
claims are barred.) (a) If it appears that there are sufficient assets to pay
all claims against the estate of a decedent, the court may order the
representative to pay the distributive share to a distributee before
the expiration of the period when claims are barred under Section 18-12
if the distributee
gives bond payable to and for the indemnity of the representative in double
the value of the distributive share to be paid, with surety to be approved by the court,
conditioned to refund the due proportion of any claim entitled to be paid from the
estate distributed together with the expenses of recovery,
including reasonable attorneys' fees and additional expenses of administration.
(b) If at any time after payment of a distributive share
it becomes necessary for all or any part of the distributive share
to be refunded for the payment of any claim entitled to be paid from the estate
distributed, upon petition of any interested person the court shall order
the distributee to refund that portion of his distributive
share which is necessary to pay the claim. If there is more
than one distributee, the court shall apportion among the distributees
the amount to be refunded according to the amount received by each of them,
but specific and general legacies need not be refunded unless the
residue is insufficient to satisfy the claims entitled to be
paid from the estate distributed. If a distributee refuses to
refund within 60 days after being ordered by the court to do so and upon
demand, the refusal is deemed a breach of the bond and a civil action
may be maintained by the representative against the distributee and the surety or either
of them for the amount due together with the expenses of recovery, including
reasonable attorneys' fees. The order of the court is evidence of the amount due.
(Source: P.A. 84-395.)
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(755 ILCS 5/24-5) (from Ch. 110 1/2, par. 24-5)
Sec. 24-5.
Distribution on presumption of death - deposit in court or
in depositaries.)
(a) Before distribution is made to a distributee of the estate of a person
presumed to be dead, the distributee or someone for and on behalf of the
distributee must give bond payable to the people of the State of Illinois in double
the value of the distributive share to be paid, with surety to be approved
by the court, conditioned to refund to the person presumed to be dead, if alive, or to
any other person lawfully entitled thereto, the share received by the distributee. The
bond may provide that it is binding on the surety for a period of not to exceed
10 years from the date thereof, but the release of the surety at the expiration
of the 10 years does not release the distributee from liability to
refund the distributive share received by him.
(b) In any case where funds have been deposited pursuant to the order of any court
in the office of the county treasury or any other depositary for the benefit
of any person
and have there remained for a period of 20 years or more without lawful claim being made
therefor, the funds are thereafter distributable to the heirs or legatees of
such person under the presumption of death testate or intestate, as
found by any court of competent jurisdiction, upon the entry
into bond by each distributee, without surety, conditioned to refund
on demand, to the presumed decedent, if alive, or to any other person lawfully
entitled thereto, all money and other property or assets received by the distributee
as heir or legatee; and in all cases of distribution there shall not thereafter
be any recourse
to, or liability on the part of the treasurer, depositary or any representative
or officer of court.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-6) (from Ch. 110 1/2, par. 24-6)
Sec. 24-6.
Filing of bond.) After approval by the court, the bonds
provided for in Section 24-4 or 24-5 of this Act must be filed with the clerk of the
court.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-7) (from Ch. 110 1/2, par. 24-7)
Sec. 24-7.
When estate does not exceed surviving spouse's award.)
If it appears to the court that the value of the real and personal estate of
a decedent after payment of 1st class claims does not exceed the amount of the surviving
spouse's or child's award, or both, the court shall order the representative to deliver
the personal estate to the person entitled to the award and
discharge the representative. The order operates to vest the person entitled to the
award with complete title to the personal estate. The person entitled to the
award is liable only for unpaid 1st class claims against the
estate to the extent of the personal estate so delivered to that person.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-8) (from Ch. 110 1/2, par. 24-8)
Sec. 24-8.
Accounting to distributee.) If a representative has taken
possession of all or a part of the estate of the decedent and refuses
or fails to pay the claims, to account or to pay the distributive share
to any distributee including a co-representative who is entitled
to a distributive share, after being ordered to do so by the court, the
distributee may maintain an action for an accounting and to recover the
proportion of the estate belonging to or due him.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-9) (from Ch. 110 1/2, par. 24-9)
Sec. 24-9.
Reopening estate.) If a decedent's estate has been
closed and the representative discharged, it may be reopened to permit the
administration of a newly discovered asset or of an unsettled portion of the
estate on the petition of any interested person. If the petition asks the
appointment of
the former representative or a successor designated by the will, the court may
order such notice of the hearing on the petition to be given to any
interested persons as it directs or the court may hear the petition without
notice. If the
petition asks the appointment of a representative other than the one who was acting
when the prior administration was completed or a successor designated by the
will, notice of the hearing on the petition must be given as the court directs
to the former representative and to all persons entitled either to
administer or to nominate a person to administer equally with or
in preference to the petitioner. No notice need be given
to any person who personally appears at the hearing or who
files his waiver of notice. On the hearing, the court
may vacate the order of discharge or issue letters of office
as the case requires. A new bond based on the value
of the newly discovered asset or the unsettled portion of
the estate and limited to the administration thereof must be
furnished as provided by this Act.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-10) (from Ch. 110 1/2, par. 24-10)
Sec. 24-10.
Interest on property withheld by representative of decedent's
estate.) At the expiration of a period of 2 years after the issuance of letters
of office in a decedent's estate, the representative shall be charged
with interest at the rate of 10% per year on the fair
market value of all the personal estate which has come into
his possession or control and has not been properly paid out
or distributed, except for good cause shown. The interest
shall run from 2 years after the issuance of letters or
if personal estate comes into his possession or control
subsequent to 2 years after the issuance of letters,
interest on the subsequently acquired personal estate runs from 6
months after such personal estate comes into his possession or control,
except for good cause shown.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-11) (from Ch. 110 1/2, par. 24-11)
Sec. 24-11.
Duty to account - ward's estate.) (a) The representative
of a ward's estate shall present a verified account of his administration
to the court which issued his letters within 30 days
after the expiration of one year after the issuance of letters or within
such further time as the court allows; within 30 days after the
termination of his office or within such further time as the court
allows, and whenever required by the court until the office is
terminated; provided however, if no time is set by the court, the
representative shall present a verified account within 30 days after the
expiration of 3 years from the date of the preceding account or within such
further time as the court allows. The account shall state the receipts
and disbursements of the
representative since his last accounting and all personal estate which
is on hand, and shall be accompanied by such evidence of the
disbursements as the court may require. On every accounting the court
may require the representative to produce satisfactory evidence that he
has in his possession or control the personal estate shown by the
account to be on hand.
(b) If the estate of a ward is derived in whole or in part from
payments of compensation, adjusted compensation, pension, insurance or
other similar benefits made directly to the estate by the Veterans
Administration, notice of the hearing on any account filed in the ward's
estate and a copy of the account must be given to the Veterans'
Administration Regional Office at least 10 days before the hearing. If
notice of the hearing on any
account except the final account of a representative is served at least
10 days before the hearing on the account and the court appoints a
guardian ad litem to represent the ward at the hearing, in the absence
of fraud, accident or mistake the account as approved is binding upon
the ward. Notice of the hearing on any final account of a
representative must be given to the ward if he is living and to such
other persons and in such manner as the court directs.
(c) On final settlement of the estate of a ward or sooner if the
court directs, the representative shall pay and deliver the estate and
title papers of the ward in the hands of the representative or with
which he is chargeable to the person entitled thereto.
(Source: P.A. 84-494.)
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(755 ILCS 5/24-12) (from Ch. 110 1/2, par. 24-12)
Sec. 24-12.
Termination of office of a representative of a ward.) The
office of a representative of a ward terminates when the ward if a minor
attains his majority, when the letters of a representative are revoked,
when the representative dies or, subject to Section 24-19, when the ward
dies. The marriage of a minor ward terminates the right of the minor's
guardian to the ward's custody and education but not to the minor's estate.
(Source: P.A. 80-1364.)
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(755 ILCS 5/24-13) (from Ch. 110 1/2, par. 24-13)
Sec. 24-13.
Accounting for a deceased
representative or a representative under legal disability.) If a representative
dies or is adjudged to be under legal disability or
is adjudged a person subject to involuntary admission or meeting the standard
for judicial admission under the Mental
Health and Developmental Disabilities
Code before he is discharged, the surety on his bond or his
representative or any of his heirs or legatees may present an account in
his behalf.
(Source: P.A. 83-706.)
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(755 ILCS 5/24-14) (from Ch. 110 1/2, par. 24-14)
Sec. 24-14.
Accounting by surety on bond of representative.) If the
letters issued to a representative are revoked and he fails or refuses to
file an account within the time fixed by the court, the surety on his
bond may present an account in his behalf.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-15) (from Ch. 110 1/2, par. 24-15)
Sec. 24-15.
Stating an account.) The court may state an account on behalf
of a representative who dies or is adjudged to be a person under legal
disability and on whose behalf
an account is not presented to the court within 60 days after the death or adjudication
or who fails or refuses to present an account as required by law. When entered
of record the account is binding and conclusive against the representative and the
surety on his bond.
(Source: P.A. 83-706.)
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(755 ILCS 5/24-16) (from Ch. 110 1/2, par. 24-16)
Sec. 24-16.
Citation - attachment.) (a) If the representative fails or refuses
to make settlement within 30 days after the expiration of the time provided by this
Act, the court may order a citation to issue directing the respondent to
appear on the return
day designated in the citation and to make settlement of the estate or to
show cause why settlement is not made. The citation must be served not less than 10
days before the return day designated in the citation and be served and returned
in the manner provided for summons in civil cases. If the respondent appears
in court on the return of the citation and fails or refuses
to make settlement within the time ordered by the court or to show cause
why settlement is not made, he may be dealt with as for contempt and may
be removed as representative.
(b) If after being served with the citation, the respondent fails to
appear before the court on the return day designated in the citation,
the court may order an attachment to issue requiring the sheriff to bring the body
of the respondent before the court forthwith. If after having
been so attached, the respondent fails to make settlement
under the order of the court he may be dealt with as for
contempt and may be removed as representative.
(c) If a representative fails or refuses to pay any money or deliver
any property to a person entitled thereto in pursuance of the lawful order of the
court within 30 days after demand therefor is made upon the representative,
except for good cause shown, on the petition of any interested party or
on the court's own motion, the court may order an attachment
to issue requiring the sheriff to bring the body of the
respondent before the court forthwith and may commit him to jail
until he complies with the order of the court or until he is discharged by due
course of law and may remove him as representative.
(d) The costs of the citation and attachment shall be paid by the delinquent
respondent and the court may enter judgment therefor.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-17) (from Ch. 110 1/2, par. 24-17)
Sec. 24-17.
Devastavit.) The failure or refusal of a representative
to pay any money or deliver any property to the person entitled thereto
in pursuance of the lawful order of the court within 30 days after
demand therefor amounts to a devastavit and an action upon the representative's bond
may be forthwith instituted and maintained. The failure or refusal to pay or
deliver is sufficient breach of the condition of the bond to authorize a
recovery thereon against the representative and his surety, or either.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-18) (from Ch. 110 1/2, par. 24-18)
Sec. 24-18.
Liability for mismanagement.) A representative
and the surety on his bond are liable to a successor representative,
to a co-representative or to any person aggrieved thereby for any
mismanagement of the estate committed to his care. The successor
representative, the co-representative or the person so aggrieved
may institute and maintain an action against the representative
and the surety on his bond for all money and property which have
come into his possession and are withheld or may have been wasted,
embezzled or misapplied and no satisfaction made therefor.
(Source: P.A. 79-328.)
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(755 ILCS 5/24-19) (from Ch. 110 1/2, par. 24-19)
Sec. 24-19.
Administration of deceased ward's estate.) (a) Without
order of appointment and until the issuance of letters testamentary or of
administration or until sooner discharged by the court, a representative of
the estate of a deceased ward has the powers and duties of an administrator
to collect.
(b) When 30 days or such further time as the court allows have elapsed
after the death of a ward, letters of administration may be issued to the
person who was guardian of the estate of the deceased ward upon his
petition therefor, unless a petition for letters has theretofore been
presented to the court of the proper county, in which case the court shall
first dispose of the pending petition before issuing letters to the
representative. If letters of administration are issued to another on a
petition filed, letters may not be issued to the person who was guardian.
(Source: P.A. 85-692.)
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(755 ILCS 5/24-20) (from Ch. 110 1/2, par. 24-20)
Sec. 24-20. Deposit of unclaimed money. Before July 1, 2024, when the receipt of a
ward, a distributee of an estate, or a claimant
cannot be obtained for money or any other asset of the estate, the
representative by leave of court may sell the asset and deposit the net
proceeds together with any other money of the estate belonging to the ward,
distributee, or claimant with the county treasurer of the county in which the
estate is being administered. The representative shall notify the county
treasurer in writing of the identity of the persons entitled
thereto and, if known, their last known post office address. The
county treasurer shall give the representative a receipt
therefor which shall be filed in the court. The person entitled to the
money so deposited may obtain it, plus interest at a rate equal to
the average interest rate on 3 month United States Treasury Bills issued during
the time the money was on deposit, upon application to the court and
satisfactory proof of his right thereto. On or after July 1, 2024, when the receipt of a ward, a distributee of an estate, or a claimant cannot be found, the representative shall report and remit the share of the missing person to the State Treasurer for disposition under the Revised Uniform Unclaimed Property Act.
(Source: P.A. 103-148, eff. 6-30-23.)
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(755 ILCS 5/24-21) (from Ch. 110 1/2, par. 24-21)
Sec. 24-21. Deposit or investment of money of a ward, subject to
court order. (a) If the estate of a ward consists only of money, on
the petition of the representative of the estate or of the
representative of an estate of which the ward is a legatee or heir, or
of any other interested person, or on its own motion, the court may, if
it appears practicable and to the best interests of the ward to do so,
order the money (1) deposited in a bank to the credit of the ward at
interest or otherwise but, unless otherwise authorized by the court, only
to an amount not exceeding the amount for which it
is insured by the Federal Deposit Insurance Corporation, or (2)
deposited in any state or federal savings and loan association but, unless
otherwise authorized by the court, only to an
amount not exceeding the amount for which it is insured by the Federal
Savings and Loan Insurance Corporation, or (3) invested in United States
obligations and deposited for safekeeping for the account of the ward in
a bank or trust company qualified to accept and execute trusts in this
State, or with the Secretary of the Treasury of the United States or in
a Federal Reserve Bank or in such other agency as may be designated by
the Secretary of the Treasury, or (4) invested in shares of any state
or federal credit union to the credit of the ward at interest or otherwise
to an amount not exceeding the amount for which said shares are insured
as required by The Illinois Credit Union Act or the Federal Credit Union
Act, as applicable, or (5) deposited in a qualified tuition program under Section 529 of the Internal Revenue Code. The receipt of the bank or trust company
constitutes a voucher for accounting purposes. Amounts deposited pursuant
to clauses (1), (2) and (4) herein, in excess of the amount
insured by the United States or any agency thereof shall be secured by a
surety bond taken from a surety authorized to transact business in this
State in such sum, under such conditions and with such security sufficient
to save the estate from loss.
(b) If a representative of the estate has been appointed for a ward,
the court may direct the representative to file a final account and
excuse him from further duty and release him and the sureties on his
bond, until further order of court.
(c) On the petition of the spouse, parent or person standing in loco
parentis to or having responsibility for the custody or support of the
ward, the court may order any money so deposited or invested to be
withdrawn and used for the comfort, support, education or other benefit
of the ward or his dependents. The petitioner shall appear in open
court unless his appearance is excused by the court and shall furnish
such evidence of the necessity for the withdrawal as the court may
require. The bank of deposit or agency for safekeeping shall be
released in making payment or delivery (1) in accordance with the order
of the court, (2) directly to the ward upon his attaining legal age or
restoration, as the case may be, or (3) directly to the representative
of the ward in case of his death, and in any such case it may not be
required to see to the application or disposition of the funds or
property.
(Source: P.A. 102-189, eff. 1-1-22.)
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(755 ILCS 5/24-22) (from Ch. 110 1/2, par. 24-22)
Sec. 24-22.
Interest of administrator of veterans affairs.) The interest
of the Administrator of Veterans Affairs in the estate of a ward shall be limited
to that part of the estate, invested or uninvested, which is derived from payments
made directly to the estate by the Veterans Administration. When a part of the
estate of a ward is derived from sources other than the Veterans Administration, it is
presumed that authorized or approved expenditures made under Section 11-13
are made first out of receipts from the Veterans Administration unless it appears
otherwise from the order of court authorizing or approving the expenditures.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. XXV heading) ARTICLE XXV
SMALL ESTATES
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(755 ILCS 5/25-1) (from Ch. 110 1/2, par. 25-1)
Sec. 25-1. Payment or delivery of small estate of decedent upon
affidavit. (a) When any person, corporation, or financial institution (1) indebted to or holding
personal estate of a decedent, (2) controlling the right of access to
decedent's safe deposit box or (3) acting as registrar or transfer agent
of any evidence of interest, indebtedness, property or right is
furnished with a small estate affidavit in substantially the
form hereinafter set forth, that person, corporation, or financial institution shall pay the
indebtedness, grant access to the safe deposit box, deliver the personal
estate or transfer or issue the evidence of interest, indebtedness,
property or right to persons and in the manner specified in
the affidavit or to an agent appointed as hereinafter set forth.
(b) Small Estate Affidavit
I, (name of affiant) , on oath state:
1. (a) My post office address is: ;
(b) My residence address is: ; and
(c) I understand that, if I am an out-of-state resident, I submit myself
to the jurisdiction of Illinois courts for all matters related to the preparation
and use of this affidavit. My agent for service of process in Illinois is:
NAME..........................
ADDRESS.......................
CITY..........................
TELEPHONE (IF ANY)............
I understand that if no person is named above as my agent for service or,
if for any reason, service on the named person cannot be effectuated, the
clerk of the circuit court of ......(County) (Judicial Circuit) Illinois
is recognized by Illinois law as my agent for service of process.
2. The decedent's name is ;
3. The date of the decedent's death was , and I have
attached a copy of the death certificate hereto.
4. The decedent's place of residence immediately before his
death was ;
5. No letters of office are now outstanding on the decedent's estate and
no petition for letters is contemplated or pending in Illinois or in any
other jurisdiction, to my knowledge;
6. The gross value of the decedent's entire personal estate, including
the value of all property passing to any party either by intestacy or
under a will, does not exceed $100,000. (Here, list each asset, e.g., cash,
stock, and its fair market value.);
7. (a) All of the decedent's funeral expenses and other debts have been paid,
or (b) All of the decedent's known unpaid debts are listed and classified as follows (include the name, post office address, and amount): Class 1: funeral and burial expenses, which include | |||||||||
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Class 2: the surviving spouse's award or child's award, | |||||||||
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Class 3: debts due the United States, as follows: Class 4: money due employees of the decedent of not more | |||||||||
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Class 5: money and property received or held in trust by | |||||||||
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Class 6: debts due the State of Illinois and any county, | |||||||||
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Class 7: all other claims, as follows: (Strike either 7(a) or 7(b)).
7.5. I understand that all valid claims against the decedent's estate described in paragraph 7 must be paid by me from the decedent's estate before any distribution is made to any heir or legatee. I further understand that the decedent's estate should pay all claims in the order set forth above, and if the decedent's estate is insufficient to pay the claims in any one class, the claims in that class shall be paid pro rata. 8. There is no known unpaid claimant or contested claim against the
decedent, except as stated in paragraph 7. 9. (a) The names and places of residence of any surviving spouse, minor
children and adult dependent* children of the decedent are as follows: | |||||||||
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*(Note: An adult dependent child is one who is unable to maintain himself
and is likely to become a public charge.) (b) The award allowable to the surviving spouse of a decedent who was
an Illinois resident is $..........
($20,000, plus $10,000 multiplied by the number of minor children and adult
dependent children who resided with the surviving spouse at the time of the
decedent's death. If any such child did not reside with the surviving
spouse at the time of the decedent's death, so indicate). (c) If there is no surviving spouse, the award allowable to the minor
children and adult dependent children of a decedent who was an Illinois
resident is $.......... ($20,000, plus $10,000
multiplied by the number of minor children and adult dependent children),
to be divided among them in equal shares. 10. (a) The decedent left no will. The names, places of residence and
relationships of the decedent's heirs, and the portion of the estate to
which each heir is entitled under the law where decedent died intestate
are as follows: | |||||||||
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(b) The decedent left a will, which has been filed with the clerk of
an appropriate court. A certified copy of the will on file is attached.
To the best of my knowledge and belief the will on file is the decedent's
last will and was signed by the decedent and the attesting witnesses as
required by law and would be admittable to probate. The names and places
of residence of the legatees and the portion of the estate, if any, to
which each legatee is entitled are as follows: | |||||||||
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(Strike either 10(a) or 10(b)). (c) Affiant is unaware of any dispute or potential conflict as to the
heirship or will of the decedent. 10.3. My relationship to the decedent or the decedent's estate is as follows: 10.5. (The following paragraph should appear in bold type and in not less than 14-point font): I understand that the decedent's estate must be | |||||||||
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11. After payment by me from the decedent's estate of all debts and expenses listed in paragraph 7, any remaining property described in paragraph 6 of this affidavit should be
distributed as follows: Name Specific sum or property to be distributedThe foregoing statement is made under the penalties of perjury*.
.........................
Signature of Affiant
Signed and sworn before me on (insert date)..........................Notary Public *(Note: A fraudulent statement made under the penalties of perjury is
perjury, as defined in Section 32-2 of the Criminal Code of 2012.)
(c) Appointment of Agent. If safe deposit access is involved or if sale
of any personal property is desirable to facilitate distribution pursuant
to the small estate affidavit, the affiant under the small estate affidavit may in writing appoint one or more persons as the affiant's agent for that
purpose. The agent shall have power, without court approval, to gain access
to, sell, and distribute the property in the manner specified in paragraphs 7.5 and 11 of the affidavit; and the payment, delivery, transfer,
access or issuance shall be made or granted to or on the order of the agent. The affiant may appoint himself or herself as the designated representative to exercise the powers and perform the duties of an agent described in this subsection (c).
(d) Reliance and Release. Any person, corporation, or financial institution who acts in good faith reliance on a copy of a document purporting to be a small estate affidavit that is substantially in compliance with subsection (b) of this Section shall be fully protected and released upon payment, delivery, transfer, access or issuance
pursuant to such a document to the same extent as if the payment, delivery, transfer, access
or issuance had been made or granted to the representative of the estate.
Such person, corporation, or financial institution is not required to see to the application or
disposition of the property; but each person to whom a payment, delivery,
transfer, access or issuance is made or given is answerable therefor to any
person having a prior right and is accountable to any representative of the
estate.
(e) Distributions pursuant to an affidavit substantially in the form set forth in subsection (b) of this Section may be made to the affiant, if so specified in paragraph 11, notwithstanding the disclosure of known unpaid debts. The affiant, acting on behalf of the decedent's estate, is obligated to pay all valid claims against the decedent's estate before any distribution is made to any heir or legatee. The affiant signing the small estate affidavit prepared pursuant to
subsection (b) of this Section shall indemnify and hold harmless all creditors,
heirs, and legatees of the decedent and other persons, corporations, or financial institutions relying upon the affidavit who
incur loss because of such reliance. That indemnification shall only be
up to the amount lost because of the act or omission of the affiant. Any
person, corporation, or financial institution recovering under this subsection (e) shall be entitled to reasonable
attorney's fees and the expenses of recovery.
(f) The affiant of a small estate affidavit who is a non-resident of
Illinois submits himself or herself to the jurisdiction of Illinois courts
for all matters related to the preparation or use of the affidavit. The
affidavit shall provide the name, address, and phone number of a person
whom the affiant names as his agent for service of process. If no such
person is named or if, for any reason, service on the named person cannot
be effectuated, the clerk of the circuit court of the county or judicial
circuit of which the decedent was a resident at the time of his death shall
be the agent for service of process.
(g) Any action properly taken under this Section, as amended by Public Act 93-877, on or after August 6, 2004 (the effective date of Public Act 93-877) is valid regardless of the date of death of the decedent.
(h) The changes made by this amendatory Act of the 96th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 96th
General Assembly. (i) The changes made by this amendatory Act of the 98th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 98th
General Assembly.(Source: P.A. 97-1150, eff. 1-25-13; 98-836, eff. 1-1-15.)
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(755 ILCS 5/25-2) (from Ch. 110 1/2, par. 25-2)
Sec. 25-2.
When appointment of representative of ward unnecessary.)
Upon receiving an affidavit that the personal estate of a ward does not
exceed $10,000 in value, that no representative has been
appointed for
his estate and that the affiant is a parent or a person standing in loco
parentis to the minor or is the spouse of the ward or, if there is no
spouse of the ward, that affiant is a relative having the responsibility
of the support of the person under legal disability
or ward, any person or corporation
indebted to or holding personal estate of the ward may pay the amount of
the indebtedness or deliver the personal estate to the affiant. In the
same manner and upon like proof, any person or corporation having the
responsibility for the issuance or transfer of stocks, bonds or other
personal estate may issue or transfer the stocks, bonds or other
personal estate to or in the name of the affiant. Upon the payment,
delivery, transfer or issuance pursuant to the affidavit, the person or
corporation is released to the same extent as if the payment, delivery,
transfer or issuance had been made to the legally qualified
representative of the ward and is not required to see to the application
or disposition of the property.
(Source: P.A. 90-307, eff. 8-1-97.)
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(755 ILCS 5/25-3) (from Ch. 110 1/2, par. 25-3)
Sec. 25-3.
Recovery upon refusal to pay or deliver.) If a person
or corporation to whom an affidavit under Section 25-1 or Section 25-2
is delivered refuses to pay, deliver, transfer or issue the personal estate as
provided by this Article, it may be recovered in a civil action by
or on behalf of the person entitled to receive it upon proof of the
facts required to be stated in the affidavit. For the purpose of the
action the affidavit is prima facie proof of the facts stated therein.
(Source: P.A. 79-328.)
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(755 ILCS 5/25-4) (from Ch. 110 1/2, par. 25-4)
Sec. 25-4. Sale of small real estate interest of ward. If the
interest of a ward in any parcel of real estate does not exceed $2,500
in value and a private sale thereof can be made for cash, the interest
may be sold as provided in this Section instead of as prescribed elsewhere
in this Act. The representative of the estate of the ward may file
a petition setting forth: (a) the description of the real estate, the interest
of the ward therein and the value of the interest sought to be sold; (b)
the name and post office address of the ward; (c) a private sale of the
ward's interest can be made for cash; and (d) it is for the
best interests of the ward that his interest in the real estate be sold.
Upon the filing of the petition the court
shall set it for hearing not less than 20 days thereafter. Not less
than 15 days before the date of hearing of the petition, the clerk of the court
shall mail a notice of the time and place of the hearing to the ward. No
guardian ad litem need be appointed for the ward unless the court finds
it necessary for the ward's protection. If on the hearing the court finds that
the ward's interest in the real estate to be sold
does not exceed $2,500 in value, a private sale of the ward's interest can
be made for cash and it is for the best interests of the ward that the
sale be made, the court shall direct the petitioner to sell the
ward's interest at private sale for cash for such price as the court determines
and upon receipt of the purchase price to execute and deliver a deed to the
purchaser. The court shall require the representative to furnish a bond conditioned
upon his disposing of the proceeds of sale in the manner required by law, and with
or without sureties and in such amount as the court directs; and
it is the duty of the representative to file the bond in and have it approved
by the court.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/Art. XXVI heading) ARTICLE XXVI
APPEALS AND POST-JUDGMENT MOTIONS
(Source: P.A. 97-1095, eff. 8-24-12.) |
(755 ILCS 5/26-1) (from Ch. 110 1/2, par. 26-1)
Sec. 26-1.
Appeals.) Appeals may be taken as in other
civil cases.
(Source: P.A. 80-808.)
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(755 ILCS 5/26-2) (from Ch. 110 1/2, par. 26-2)
Sec. 26-2.
Effect of appeal from order.) An appeal from an order
(a) appointing an administrator to collect or a temporary guardian,
(b) removing a representative for any cause listed in Section 23-2 or
(c) appointing a successor to one so removed does not affect the order
until it is reversed, unless stayed in accordance with the rules of the
Supreme Court of this State governing appeals.
(Source: P.A. 81-795.)
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(755 ILCS 5/26-3) Sec. 26-3. Effect of post-judgment motions. Unless stayed by the court, an order adjudicating a person as a person with a disability and appointing a plenary, limited, or successor guardian pursuant to Section 11a-3, 11a-12, 11a-14, or 11a-15 of this Act shall not be suspended or the enforcement thereof stayed pending the filing and resolution of any post-judgment motion.
(Source: P.A. 99-143, eff. 7-27-15.) |
(755 ILCS 5/Art. XXVII heading) ARTICLE XXVII
MISCELLANEOUS
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(755 ILCS 5/27-1) (from Ch. 110 1/2, par. 27-1)
Sec. 27-1. Fees of representative. A representative is entitled to
reasonable compensation for his services, but no fees, charges or other
compensation may be allowed a public administrator for services
performed in administering that part of the estate of any United States
war veteran which consists of compensation, insurance or other monies
due or payable from the United States because of the veteran's war
service. No fees, charges or other compensation may be allowed an employee of
the Department of Human Services or the Department of Children and Family
Services designated
under paragraph (b) of Section 11-3 for services as guardian of the estate of
a patient or resident in a State mental
health or developmental disabilities facility or other State
institution. Fees awarded under this Section shall be considered as a first-class claim for administrative expenses and paid from the guardianship estate or from the probate estate pursuant to Section 18-10. Fees awarded to guardians shall be consistent with Section 11a-13.5.
(Source: P.A. 102-72, eff. 1-1-22.)
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(755 ILCS 5/27-2) (from Ch. 110 1/2, par. 27-2)
Sec. 27-2. Attorney's fees.) (a) The attorney for a representative is entitled to
reasonable compensation for his services.
(b) An attorney who withdraws from representing a representative must file a petition for fees and costs within 30 days after the withdrawal is approved by the court. If within 30 days after the court approves the withdrawal of an attorney from representing a representative, a motion is filed for an extension of time for the filing of a petition for fees and costs, the court may grant additional time for the filing of that petition. (Source: P.A. 96-981, eff. 7-2-10.)
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(755 ILCS 5/27-3) (from Ch. 110 1/2, par. 27-3)
Sec. 27-3.
Duties of a guardian ad litem.) A guardian ad litem
appointed under this Act shall file an answer, appear and defend on behalf of
the ward or person not in being whom he represents.
(Source: P.A. 79-328.)
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(755 ILCS 5/27-4) (from Ch. 110 1/2, par. 27-4)
Sec. 27-4.
Compensation of a guardian ad litem or special administrator.)
A guardian ad litem or special administrator is entitled to such reasonable compensation
as may be fixed by the court to be taxed as costs in the proceedings and
paid in due course of administration.
(Source: P.A. 79-328.)
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(755 ILCS 5/27-5) (from Ch. 110 1/2, par. 27-5)
Sec. 27-5.
Selection of guardian ad litem or special administrator.) The
person appointed as guardian ad litem or special administrator under this Act may not
be selected upon the recommendation of any person having an interest
adverse to the person represented by the guardian ad litem or special administrator
or by the attorney for the adverse party.
(Source: P.A. 79-328.)
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(755 ILCS 5/27-6) (from Ch. 110 1/2, par. 27-6) Sec. 27-6. Actions which survive. In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages, including punitive damages when applicable, for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 6-21 of the Liquor Control Act of 1934 . Nothing in this Section affects the applicability of Section 2-1115 of the Code of Civil Procedure or Section 2-102 or 2-213 of the Local Governmental and Governmental Employees Tort Immunity Act. Punitive damages are not available in an action for healing art malpractice or legal malpractice or in an action against the State or unit of local government or an employee of the State or an employee of a unit of local government in his or her official capacity. (Source: P.A. 103-514, eff. 8-11-23.) |
(755 ILCS 5/27-7) (from Ch. 110 1/2, par. 27-7)
Sec. 27-7.
Joint tax returns.) Unless otherwise directed by the
decedent in his will, a representative may join with the spouse
of the decedent or of the ward in the making of a joint federal or
state income tax return for the decedent or ward and his spouse and
to consent for federal or state gift tax purposes to gifts made
by the spouse of the decedent or ward to the end that gifts to
which consent is given are treated for federal or state
gift tax purposes as made 1/2 by the decedent or ward and 1/2 by his spouse.
Any liability incurred by a representative pursuant to any such joinder or consent
is incurred on behalf of the estate of the decedent or ward and not individually.
(Source: P.A. 79-328.)
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(755 ILCS 5/27-8) (from Ch. 110 1/2, par. 27-8)
Sec. 27-8.
Publication of notice in county in which no newspaper is published.)
When a notice is required by this Act to be published in a newspaper in a particular
county and there is no newspaper published in that county, the notice must be
published in such other newspaper in this State as the court directs.
(Source: P.A. 79-328.)
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(755 ILCS 5/27-9) (from Ch. 110 1/2, par. 27-9)
Sec. 27-9.
Publication of notice by clerk.) When the
clerk of the court is required by this Act to publish a notice in a
newspaper, the representative or his attorney has the right to direct in what
newspaper
the notice shall be published. If the clerk makes publication contrary to
directions, he may not collect the costs thereof. This
Section does not apply in any case where the court directs in what
newspaper publication is to be made.
(Source: P.A. 79-328.)
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(755 ILCS 5/Art. XXVIII heading) ARTICLE XXVIII
INDEPENDENT ADMINISTRATION OF DECEDENTS' ESTATES
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(755 ILCS 5/28-1) (from Ch. 110 1/2, par. 28-1)
Sec. 28-1.
Purpose and scope of Article.) This Article permits an executor
or administrator to administer the estate without court order or filings,
except to the extent that court order or filing
is required by this Article or is requested by any interested person pursuant
to this Article. This Article shall apply to all estates after the effective
date of this Amendatory Act of 1983, whether letters of office are issued
before, on or after that date. All provisions
of this Act dealing with decedents'
estates that are not inconsistent with this Article apply to and govern
independent administration.
(Source: P.A. 83-900.)
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(755 ILCS 5/28-2) (from Ch. 110 1/2, par. 28-2)
Sec. 28-2. Order for independent administration - notice of
appointment of independent administrator.) (a) Unless the will, if any,
expressly forbids independent administration or supervised
administration is required under subsection (b), the court shall grant
independent administration (1) when an order is entered appointing a
representative pursuant to a petition which does not request supervised
administration and which is filed under Section 6-2, 6-9, 6-20, 7-2,
8-2, 9-4 or 9-6 and (2) on petition by the representative at any time or
times during supervised administration and such notice to interested
persons as the court directs. Notwithstanding any contrary provision of
the preceding sentence, if there is an interested person who is a minor
or person with a disability, the court may require supervised administration (or
may grant independent administration on such conditions as its deems
adequate to protect the ward's interest) whenever the court finds that
(1) the interests of the ward are not adequately represented by a
personal fiduciary acting or designated to act pursuant to Section 28-3
or by another party having a substantially identical interest in the
estate and the ward is not represented by a guardian of his estate and
(2) supervised administration is necessary to protect the ward's
interests. When independent administration is granted, the independent
representative shall include with
each notice required to be mailed to heirs or legatees under Section 6-10
or Section 9-5 an explanation of the rights of
heirs and legatees
under this Article and the form of petition which may be used to terminate
independent administration under subsection 28-4(a). The form and substance
of the notice of rights and the petition to terminate shall be prescribed
by rule of the Supreme Court of this State. Each order granting independent
administration and the letters shall state that the
representative is appointed
as independent executor or independent administrator, as the case may be.
The independent representative shall file
proof of mailing with the clerk of the court.
(b) If an interested person objects to the grant of independent administration
under subsection (a), the court shall require supervised
administration, except:
(1) If the will, if any, directs independent | ||
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(2) If the objector is a creditor or a legatee other | ||
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(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/28-3) (from Ch. 110 1/2, par. 28-3)
Sec. 28-3. Protection of persons under disability during independent
administration.) (a) A personal fiduciary acting pursuant to this Article
has full power and the responsibility to protect the interests of his ward
during independent administration and to do all acts necessary or appropriate
for that purpose which the ward might do if not under disability. Approval
of any act of the independent representative or of his final report by the
personal fiduciary, or failure of the personal fiduciary to object after
notice pursuant to this Article, binds the ward. Unless the ward is bound
under the preceding sentence, the independent representative is accountable
to the ward for damages incurred as a consequence of willful default by
the independent representative until the expiration of a period of 6 months
after the ward's disability is removed, and any action must be commenced
before the expiration of that period. Upon the entry of an order pursuant
to Section 28-4 terminating independent administration status, the personal
fiduciary's powers and responsibility for continuing to protect the ward's
interest terminate. The fact that a personal fiduciary is acting does not
limit the right of any person as next friend of the ward to inform the court
of any circumstances that may adversely affect the ward's interests in the estate.
(b) The following persons are entitled to act as personal fiduciary for
a ward in the order of preference indicated:
(1) The representative of the ward's estate acting in | ||
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(2) The person designated as personal fiduciary in | ||
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(3) The person designated as personal fiduciary by | ||
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No person may act as personal fiduciary who is a minor or person with a disability,
who has been convicted of a felony or whose interests conflict
with the ward's interests in the decedent's estate.
A personal fiduciary designated under subparagraph (3) above shall be a spouse,
descendant, parent, grandparent, brother, sister, uncle or aunt of the ward,
a guardian of the person of the ward or a party having an interest in the
estate substantially identical to that of the ward. The responsibility
of a personal fiduciary begins on delivery of his written acceptance of
the office to the independent representative. Any personal fiduciary may
refuse to act or may resign at any time by instrument delivered to the
independent representative. When a personal fiduciary has been appointed
and there is a change of personal fiduciary or a vacancy in that office,
the independent representative shall inform the court; and the court may
designate any suitable person as personal fiduciary when there is a vacancy
that has not been filled by the independent representative in accordance
with this Section 28-3.
(c) A personal fiduciary is entitled to such reasonable compensation for
his services as may be approved by the independent representative or, in
the absence of approval, as may be fixed by the court, to be paid out of
the estate as an expense of administration.
(d) A personal fiduciary is liable to the ward only for willful default
and not for errors in judgment.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/28-4) (from Ch. 110 1/2, par. 28-4)
Sec. 28-4.
Termination of independent administration status.) (a) Upon
petition by any interested person, mailed or delivered to the clerk of the
court, the court shall enter an order terminating the independent administration
status of the estate, except:
(1) If the will, if any, directs independent administration,
independent administration status shall be terminated only if the court
finds there is good cause to require supervised administration.
(2) If the petitioner is a creditor or a legatee other than a
residuary legatee, independent administration status shall be terminated
only if the court finds that termination is necessary to protect the
petitioner's interest, and instead of terminating independent
administration status, the court may require such other action as it
deems adequate to protect the petitioner's interest. Upon termination
of independent administration, the representative must mail notice of the
termination to all interested persons whose names and post office addresses
are known to the representative and file proof of mailing with the clerk of the court.
(b) After entry of an order terminating independent administration
status, the representative shall be governed by all provisions of the
Act applicable to the estate in supervised administration, and the order
of termination shall direct the representative as to the time and manner
for the performance of any acts (such as the filing of an inventory or
account) which would have been required to be done earlier in supervised
administration.
(c) After entry of an order terminating independent administration
status, the independent representative may not exercise any power
pursuant to this Article and is liable for any damages caused by any
such exercise, but the validity of the independent representative's
actions pursuant to this Article after termination with respect to any
person other than beneficiaries and creditors of the estate will not be
affected by termination of independent administration unless such person
has actual knowledge of termination.
(Source: P.A. 81-1453.)
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(755 ILCS 5/28-5) (from Ch. 110 1/2, par. 28-5)
Sec. 28-5.
Court proceedings during independent administration.) At any
time or times during independent administration any interested person may
petition the court for a hearing and order as to any matter germane to the
administration of the estate, and the provisions of this Act other than
this Article shall govern any such court proceedings in the same manner
as under supervised administration. If the independent representative petitions
the court for instructions as
to the exercise of any discretionary power, he renounces his discretion
with respect to the matter before the court and the court shall substitute
its judgment for his.
(Source: P.A. 81-213.)
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(755 ILCS 5/28-6) (from Ch. 110 1/2, par. 28-6)
Sec. 28-6.
Service of inventory.) (a) Not less than
30 days prior to filing of the verified report required by Section 28-11,
an independent representative shall
mail or deliver a copy of an inventory of the estate to each interested
person; provided, however, that prior to that time any interested person
shall be given a copy of an inventory upon written request. An independent
representative
need not file the inventory with the court.
(b) Within 90 days after issuance of letters of office to an
independent administrator, said administrator shall provide to the surety on
the bond, by certified mail, a copy of the inventory of the real and
personal estate which has come to his knowledge. The same procedure shall
apply to property coming to his knowledge after the original inventory is
completed. Failure to comply with this provision may result in termination
of independent administration status under the provisions of Section 28-4.
(Source: P.A. 84-555; 84-690.)
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(755 ILCS 5/28-7) (from Ch. 110 1/2, par. 28-7)
Sec. 28-7.
Spouse and child awards.) (a) When an award under Section
15-1 or 15-2 is allowable and is not waived or barred, an independent representative
may pay the award determined under Section 15-1 or 15-2 without application
to the court unless the aggregate of all awards exceeds 5% of the gross
value of the estate at the date of death, as determined by the independent
representative; but the minimum amount of any award under Section 15-1 or
15-2 may be paid in any event without application to the court.
(b) The independent representative shall give notice of the allowance
of the award as provided in subsection 15-3(a). When an independent representative
makes an award without application to the court, each person having a right
of selection of goods and chattels under Section 15-4 may file his selection
with the independent representative within 30 days after he is notified
in writing of the allowance of the award.
(Source: P.A. 81-213.)
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(755 ILCS 5/28-8) (from Ch. 110 1/2, par. 28-8)
Sec. 28-8. Administrative powers. An independent representative
acting reasonably for the best interests of the estate has the powers
granted in the will and the following powers, all exercisable without
court order, except to the extent that the following powers are
inconsistent with the will:
(a) To lease, sell at public or private sale, for | ||
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(b) To borrow money with or without security;
(c) To mortgage or pledge agricultural commodities as | ||
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(d) To continue the decedent's unincorporated | ||
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(e) To settle, compound or compromise any claim or | ||
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(f) To perform any contract of the decedent;
(g) To employ agents, accountants and counsel, | ||
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(h) To hold stocks, bonds and other personal property | ||
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(i) To take possession, administer and grant | ||
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(j) To retain property properly acquired, without | ||
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(Source: P.A. 101-48, eff. 1-1-20.)
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(755 ILCS 5/28-9) (from Ch. 110 1/2, par. 28-9)
Sec. 28-9.
Protection of persons dealing with an independent representative.)
No person dealing with an independent representative is obliged to inquire
as to the independent representative's powers under any will or court order
or see to the application of any money or property paid or delivered to
the independent representative. No will or court order limiting an independent
representative's powers is effective as to a person with whom the independent
representative deals, and such person may assume that the independent representative's
act is in accordance with any applicable will or court order, unless such
person has actual knowledge of the limitation. If property or a security
interest therein is acquired in good faith by a purchaser or lender for
value from an independent representative, the purchaser or lender takes
title free of the rights of all persons having an interest in the estate
and incurs no liability to the estate, whether or not the action of the
independent representative was proper.
(Source: P.A. 81-213.)
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(755 ILCS 5/28-10) (from Ch. 110 1/2, par. 28-10)
Sec. 28-10. Distribution.) (a) If it appears to the independent
representative that there are sufficient assets to pay all claims, the
independent representative may at any time or times distribute the estate
to the persons entitled thereto. As a condition of any distribution, the
independent representative may require the distributee to give him a
refunding bond in any amount the independent representative deems
reasonable, with surety approved by the independent representative or
without surety. If the distribution is made before the expiration of the
period when claims are barred under Section 18-12, the independent
representative must require the distributee to give him a refunding bond as
provided in Section 24-4. If the estate includes an interest in real
estate that has not been sold by the independent representative, the
independent representative must record and deliver to the persons entitled
thereto an instrument which contains the legal description of the real estate
and releases the estate's interest.
(b) If abatement or equalization of legacies pursuant to subsection 24-3(b)
or (c) is required, the independent representative shall determine the amount
of the respective contributions, the manner in which they are paid and whether
security is required.
(c) If it appears to the independent representative that the value of
the estate of the decedent remaining after payment of 1st class claims does
not exceed the amount of the surviving spouse's and child's awards due,
the independent representative may deliver the personal estate to the persons
entitled to the awards and close the estate as provided in Section 28-11,
without waiting until the expiration of the period when claims are barred
under Section 18-12.
(d) If property distributed in kind, or a security interest therein, is
acquired in good faith by a purchaser or lender for value from a distributee
(or from the successors in interest to a distributee) who has received physical
delivery or an assignment, deed, release or other instrument of distribution
from an independent representative, the purchaser or lender takes title
free of the rights of all persons having an interest in the estate and incurs
no liability to the estate, whether or not the distribution was proper.
(e) If a distributee is a minor or a person with a disability, the independent
representative may make distribution to the ward's representative, if any,
to a custodian for the ward under the Illinois Uniform Transfers to Minors
Act or the corresponding statute of any other state in which the ward or the
custodian resides, by deposit or investment of the ward's property subject
to court order under Section 24-21 or in any other manner authorized by law.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/28-11) (from Ch. 110 1/2, par. 28-11)
Sec. 28-11.
Closing the estate.
(a) An independent representative is
accountable to all interested persons for his administration and
distribution of the estate but need not present an account to the court
unless an interested person requests court accounting as in supervised
administration.
(b) An independent representative seeking
discharge shall mail or deliver to all interested persons an accounting and
shall file in the court a verified
report stating substantially as follows:
(1) In a testate estate, that notice has been given | ||
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(2) In an intestate estate, that notice has been | ||
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(3) That the notice required by Section 18-3 has been | ||
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(4) That copies of an inventory and an accounting | ||
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(5) That each claim filed has been allowed, | ||
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(6) That all death taxes have been determined and | ||
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(7) That all administration expenses and other | ||
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(8) That the remaining assets of the estate have been | ||
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(9) That the fees paid or payable to the independent | ||
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(10) The name and post office address, if known, of | ||
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(c) Notice of the filing of the report shall be given to all
interested persons, except:
(1) Creditors whose written approvals of the report | ||
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(2) Heirs and legatees whose signed receipts for | ||
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(3) Whenever a trustee of a trust is an interested | ||
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(d) If pursuant to subsections (c)(1),
(c)(2) and (c)(3) no person need be given notice, the court shall enter an
order discharging the independent representative and declaring the
estate closed.
(e) In all cases not covered by subsection (d), not more than 14
days after the filing of the report the independent representative
shall mail
a copy of the report showing the date of its filing to each person who
is entitled to and has not waived notice thereof and shall notify each
such person that if no objection is filed within 42 days after the
report was filed, the independent representative will be discharged and
the estate closed. If the name or post office address of any person
entitled to notice is not stated in the report or if the estate was
opened on the presumption of death, the independent representative shall
publish a notice stating that the report was filed on the date stated and that
if no objection is filed within 42 days after the filing of the
report,
the independent representative will be discharged and the estate closed.
The notice shall be published once a week for 3 successive weeks, the
first publication to be not more than 14 days after the filing of the
report. The notice shall be published in a newspaper published in the
county where the independent representative's letters of office were
issued. At any time after the expiration of a period of 42 days
from
the filing of the independent representative's report, the independent
representative may apply to the court for a discharge and, if no
objection is then pending in the court, the court shall enter an order
discharging the independent representative and declaring the estate
closed. If any objection is then pending, the court shall order that
notice be given to all interested persons and may order the independent
representative to present a verified account of his administration
within such time as the court directs. The independent representative
shall file proof of mailing and publication, if publication is required,
with the clerk of the court.
The changes made by this amendatory Act of 1995 apply to reports filed
on or after the effective date of this amendatory Act of 1995.
(f) In the absence of fraud, accident or mistake, an order
discharging the independent representative and declaring the estate
closed is binding on each person whose receipt or approval was filed
with the report and on each person to whom notice thereof was given in
compliance with subsection (e) except a ward for whom no personal
fiduciary is acting.
(Source: P.A. 89-364, eff. 8-18-95.)
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(755 ILCS 5/28-12) (from Ch. 110 1/2, par. 28-12)
Sec. 28-12.
Notice.) Notice or other information mailed to an interested
person at his last address known to the sender shall be deemed given to
the person for all purposes of this Article at the time of mailing.
(Source: P.A. 81-213.)
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(755 ILCS 5/Art. XXX heading) ARTICLE XXX
REPEAL - SAVINGS CLAUSE - EFFECTIVE DATE
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(755 ILCS 5/30-1) (from Ch. 110 1/2, par. 30-1)
Sec. 30-1.
Repeal.) The "Probate Act", approved July 24, 1939, as amended, is
repealed.
(Source: P.A. 79-328.)
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(755 ILCS 5/30-2) (from Ch. 110 1/2, par. 30-2)
Sec. 30-2.
Savings clause.) The provisions for repeal contained in this Act
shall not in any way:
(a) affect an offense committed, an act done, a penalty,
punishment or forfeiture incurred, or a claim, right, power or remedy
accrued under any law in force before January 1, 1976;
nor affect the jurisdiction of any court to hear and determine any cause of action based
on a right of action arising before January 1, 1976 and under any law in
force before January 1,
1976 if the cause of action was filed before the expiration of 12 months after January
1, 1976.
(b) invalidate any of the following that have been validated
by any former law: any act done by an executor, administrator, guardian
or conservator; any order, judgment or decree entered by a court; or the
recordation of any will.
(Source: P.A. 79-328.)
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(755 ILCS 5/30-3) (from Ch. 110 1/2, par. 30-3)
Sec. 30-3.
Effective date of Act.) This Act shall take effect on January 1, 1976.
(Source: P.A. 79-328.)
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