Public Act 90-0237 of the 90th General Assembly

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Public Act 90-0237

HB1186 Enrolled                                LRB9002673WHmg

    AN ACT in relation to rights and remedies.

    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 2-2 and 2-4 as follows:

    (755 ILCS 5/2-2) (from Ch. 110 1/2, par. 2-2)
    Sec.  2-2.  Illegitimates.)   The  intestate   real   and
personal  estate  of a resident decedent who was illegitimate
at the time of death and the intestate real  estate  in  this
State  of  a nonresident decedent who was illegitimate at the
time of death, 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
the mother or a descendant of the  mother  of  the  decedent:
the entire estate to the mother and her descendants, allowing
1/2 to the mother and 1/2 to her descendants per stirpes.
    (e)  If  there is no surviving spouse, descendant, mother
or descendant of the mother of the decedent, 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.
    (f)  If there is no surviving spouse, descendant, mother,
descendant of the mother, maternal grandparent or  descendant
of a maternal 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.
    (g)  If there is no surviving spouse, descendant, mother,
descendant of the mother, maternal grandparent, descendant of
a  maternal  grandparent,   maternal   great-grandparent   or
descendant  of  a maternal great-grandparent of the decedent:
the entire estate in equal parts to the  nearest  kindred  of
the  mother of the decedent in equal degree (computing by the
rules of the civil law) and without representation.
    (h)  If there is no surviving spouse  or  mother  of  the
decedent  and no known kindred of the mother 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
Director  of Financial Institutions of this State pursuant to
the Uniform Disposition of Unclaimed Property Act.
    An illegitimate person 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  an
illegitimate  person  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 an
illegitimate person or if during his lifetime  or  after  his
death  a  decedent  has  been adjudged to be the father of an
illegitimate person, 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  an
illegitimate  person  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  an  illegitimate  person  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 illegitimate whose parents intermarry and  who
is  acknowledged  by  the  father  as  the  father's child is
legitimate. After an illegitimate  person  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. 81-400.)

    (755 ILCS 5/2-4) (from Ch. 110 1/2, par. 2-4)
    Sec. 2-4.  Adopted child and adopting parent.
    (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.  For  such  purposes,  an  adopted  child also is a
descendant of both natural parents when the  adopting  parent
is the spouse of a natural parent.
    (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 of a descendant  of  a  great-grandparent  of  the
    child, in which case the adopted child is a child of both
    natural parents.
         (2)  A  natural  parent  of  the  adopted child died
    before the child was adopted, in which case  the  adopted
    child  is  a child of that deceased parent and an heir of
    the  lineal  and  collateral  kindred  of  that  deceased
    parent.
         (3)  The contrary  intent  is  demonstrated  by  the
    terms of the instrument by clear and convincing evidence.
    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.  If  an
adopted child is related by blood to the adopting parent, the
adopted  child and his or her descendants shall take property
from the estate of the adopting parent  only  as  an  adopted
child or descendants of an adopted child and not as relatives
by blood.  For the purpose of determining the property rights
of  any  person  under  any instrument executed before, on or
after September 1, 1989, an adopted child is a descendant  of
both  natural  parents when the adopting parent is the spouse
of  a  natural  parent,  unless  the   contrary   intent   is
demonstrated  by  the  terms  of  the instrument by clear and
convincing evidence.
    (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  by the terms of the instrument by clear and
    convincing evidence.
         (2)  An adopting parent of an adopted child, in  the
    belief  that  the  adopted  child would not take property
    under an instrument executed before  September  1,  1955,
    acted  to  substantially  benefit such adopted child when
    compared to the benefits conferred by such parent on  the
    child  or  children  born  to  the  adopting parent.  For
    purposes of this paragraph:
              (i)  "Acted" means  that  the  adopting  parent
         made  one  or  more  gifts during life requiring the
         filing of a federal gift  tax  return  or  at  death
         (including  gifts  which  take  effect at death), or
         exercised  or   failed   to   exercise   powers   of
         appointment  or  other  legal  rights,  or  acted or
         failed to act in any other way.
              (ii)  Any action which  substantially  benefits
         the  adopted  child  shall  be presumed to have been
         made in such a belief unless a  contrary  intent  is
         demonstrated by clear and convincing evidence.
    (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. 86-606; 86-842; 86-1028.)

    Section  10.  The  Instruments Regarding Adopted Children
Act is amended by changing Section 1 as follows:

    (760 ILCS 30/1) (from Ch. 40, par. 1652)
    Sec.  1.  Property  rights.  (a)  For  the   purpose   of
determining  the  property  rights  of  any  person under any
nontestamentary instrument, an adopted  child's  relationship
to  his or her adopting and natural parents shall be governed
by Section 2-4 of the Probate Act of 1975. For the purpose of
determining the property  rights  of  any  person  under  any
nontestamentary   instrument,   the   changes  made  by  this
amendatory  Act  of  1997  apply   to   all   nontestamentary
instruments executed on or after January 1, 1998. 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.
    (b)  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 by
the terms of the instrument by clear and convincing evidence.
    (2)  An adopting parent  of  an  adopted  child,  in  the
belief  that  the adopted child would not take property under
an instrument executed before September  1,  1955,  acted  to
substantially benefit such adopted child when compared to the
benefits  conferred  by  such parent on the child or children
born to the adopting parent.  For purposes of this paragraph:
    (i)  "Acted" means that the adopting parent made  one  or
more gifts during life requiring the filing of a federal gift
tax  return or at death (including gifts which take effect at
death),  or  exercised  or  failed  to  exercise  powers   of
appointment  or other legal rights, or acted or failed to act
in any other way.
    (ii)  Any action which substantially benefits the adopted
child shall be presumed to have been made in  such  a  belief
unless  a  contrary  intent  is  demonstrated  by  clear  and
convincing evidence.
    (c)  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  rights  of
adopted children to take property under such an instrument.
    (d)  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  (b)  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 (b)
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.
    (e)  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. 86-842.)

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