Illinois General Assembly - Full Text of Public Act 099-0302
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Public Act 099-0302





Public Act 099-0302
SB0090 EnrolledLRB099 05209 HEP 25243 b

    AN ACT concerning civil law.
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
    Section 5. The Probate Act of 1975 is amended by changing
Sections 4-1 and 11a-18 as follows:
    (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 lla-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. 80-808.)
    (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
    the estate, either outright or in trust;
        (2) conveying, releasing, or disclaiming his or her
    contingent and expectant interests in property, including
    marital property rights and any right of survivorship
    incident to joint tenancy or tenancy by the entirety;
        (3) releasing or disclaiming his or her powers as
    trustee, personal representative, custodian for minors, or
        (4) exercising, releasing, or disclaiming his or her
    powers as donee of a power of appointment;
        (5) entering into contracts;
        (6) creating for the benefit of the ward or others,
    revocable or irrevocable trusts of his or her property that
    may extend beyond his or her disability or life;
        (7) exercising options of the ward to purchase or
    exchange securities or other property;
        (8) exercising the rights of the ward to elect benefit
    or payment options, to terminate, to change beneficiaries
    or ownership, to assign rights, to borrow, or to receive
    cash value in return for a surrender of rights under any
    one or more of the following:
            (i) life insurance policies, plans, or benefits,
            (ii) annuity policies, plans, or benefits,
            (iii) mutual fund and other dividend investment
            (iv) retirement, profit sharing, and employee
        welfare plans and benefits;
        (9) exercising his or her right to claim or disclaim an
    elective share in the estate of his or her deceased spouse
    and to renounce any interest by testate or intestate
    succession or by inter vivos transfer;
        (10) changing the ward's residence or domicile; or
        (11) modifying by means of codicil or trust amendment
    the terms of the ward's will or any revocable trust created
    by the ward, as the court may consider advisable in light
    of changes in applicable tax laws.
    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.
    (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 interest of the disabled person, 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 disabled
person. 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 disabled person.
(Source: P.A. 95-331, eff. 8-21-07.)

Effective Date: 1/1/2016