Judiciary I - Civil Law Committee
Filed: 2/25/2009
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1 | AMENDMENT TO HOUSE BILL 151
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2 | AMENDMENT NO. ______. Amend House Bill 151 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Secretary of State Act is amended by adding | ||||||
5 | Section 5.15 as follows: | ||||||
6 | (15 ILCS 305/5.15 new) | ||||||
7 | Sec. 5.15. Deposit of wills. | ||||||
8 | (a) Definitions. As used in this Section: | ||||||
9 | "Depositor" means an attorney licensed or formerly | ||||||
10 | licensed to practice in the State of Illinois, the attorney's | ||||||
11 | representative, the guardian for the attorney, or the personal | ||||||
12 | representative of the attorney's decedent's estate. | ||||||
13 | "Testator" means a person who executed a will, other than | ||||||
14 | as a witness or official to whom acknowledgment of signing was | ||||||
15 | given. | ||||||
16 | "Will" refers to an original: |
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1 | (1) will; | ||||||
2 | (2) codicil; | ||||||
3 | (3) will and one or more codicils; | ||||||
4 | (4) trust; or | ||||||
5 | (5) trust and one or more trust amendments. | ||||||
6 | (b) Deposit of wills. A depositor may deposit a will with | ||||||
7 | the Secretary of State if the depositor certifies in writing to | ||||||
8 | the Secretary of State that the depositor is unable to locate | ||||||
9 | the testator after a diligent search. The certification shall | ||||||
10 | be on a form to be provided by the Secretary. This Section | ||||||
11 | applies whether it is known or unknown whether the testator is | ||||||
12 | living.
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13 | (c) Assumptions. The Secretary of State may assume, without | ||||||
14 | inquiring into the facts, that the depositor has first made a | ||||||
15 | diligent search for the testator. | ||||||
16 | (d) Fee. The Secretary of State shall collect a fee of $15 | ||||||
17 | for each deposit of a will. The Secretary of State shall not | ||||||
18 | collect a separate fee for additional documents concurrently | ||||||
19 | deposited in relation to a single testator or for a single | ||||||
20 | joint will prepared for a husband and wife.
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21 | (e) Duty of Secretary of State upon receipt. Upon receipt | ||||||
22 | of a will under this Section, the Secretary of State shall: | ||||||
23 | (1) provide the depositor with a receipt for the will, | ||||||
24 | which receipt shall contain the information designated on | ||||||
25 | the envelope in accordance with paragraph (3) of this | ||||||
26 | subsection; |
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1 | (2) place the will or wills deposited concurrently in | ||||||
2 | relation to a single testator in one envelope and seal the | ||||||
3 | envelope securely in the presence of the depositor or | ||||||
4 | depositor's agent; | ||||||
5 | (3) designate on the envelope: | ||||||
6 | (A) the date of deposit; | ||||||
7 | (B) the name, address, and telephone number of the | ||||||
8 | depositor; | ||||||
9 | (C) the name and last known address of the testator | ||||||
10 | as provided by the depositor; | ||||||
11 | (D) at the depositor's option, any and all of the | ||||||
12 | following information: | ||||||
13 | (i) alternate names by which the testator may | ||||||
14 | have been known; | ||||||
15 | (ii) the testator's birth date, and | ||||||
16 | (iii) the last 4 digits of the testator's | ||||||
17 | Social Security number; and | ||||||
18 | (E) with respect to each document enclosed: | ||||||
19 | (i) a short description of the document, | ||||||
20 | including, if shown, its date of execution; and | ||||||
21 | (ii) the number of pages in the document; and | ||||||
22 | (4) index the will alphabetically by the name of the | ||||||
23 | testator, and by the alternate names set forth by which the | ||||||
24 | testator may have been known. | ||||||
25 | (f) Status as a public record. An envelope and will | ||||||
26 | deposited under this Section are not public records. The index |
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1 | created under item (4) of subsection (e) is a public record. | ||||||
2 | (g) Duty of Secretary of State during testator's lifetime. | ||||||
3 | During the testator's lifetime, the Secretary of State shall: | ||||||
4 | (1) keep the envelope containing the will sealed; and | ||||||
5 | (2) deliver the envelope to: | ||||||
6 | (i) the testator; | ||||||
7 | (ii) a person authorized, in a writing signed by | ||||||
8 | the testator and notarized, to
receive the envelope; or | ||||||
9 | (iii) a person, entity, court, or government | ||||||
10 | agency authorized to receive the
envelope pursuant to | ||||||
11 | an order entered by a court of competent
jurisdiction. | ||||||
12 | (h) Duty of Secretary of State upon notification of death | ||||||
13 | of testator. If the Secretary of State has custody of the will | ||||||
14 | after the death of the testator and is notified of the death of | ||||||
15 | the testator by means of a certified copy of the testator's | ||||||
16 | death certificate or by a certified copy of an order of court | ||||||
17 | determining the testator to be deceased, upon receipt of | ||||||
18 | payment of a retrieval fee in the amount of $10, the Secretary | ||||||
19 | of State shall promptly deliver the sealed will envelope to the | ||||||
20 | clerk of the circuit court of the county in which the probate | ||||||
21 | of the testator's will may occur as determined under Section | ||||||
22 | 5-1 of the Probate Act of 1975 (755 ILCS 5/5-1). | ||||||
23 | (i) Duties of Secretary of State upon inquiry. Upon inquiry | ||||||
24 | by a person identified in paragraph (2) of subsection (g), or | ||||||
25 | upon inquiry of any person presenting a certified copy of the | ||||||
26 | testator's death certificate or a certified copy of an order of |
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1 | a court determining the testator to be deceased, the Secretary | ||||||
2 | of State shall inform the person whether the name of the | ||||||
3 | relevant testator appears in the Secretary of State's index of | ||||||
4 | wills. For the purposes of this subsection, the Secretary of | ||||||
5 | State need not be certain that the testator is the one being | ||||||
6 | inquired about, but may release that information if it is | ||||||
7 | possible that the testator is that one. | ||||||
8 | (j) Destruction of will. The Secretary of State may destroy | ||||||
9 | a will deposited under this Section if: | ||||||
10 | (1) the Secretary of State has not received notice of | ||||||
11 | the death of the testator; and | ||||||
12 | (2) at least 100 years have passed since the date the | ||||||
13 | will was deposited.
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14 | (k) All fees received by the Secretary of State under this | ||||||
15 | Section must be deposited into the Secretary of State Special | ||||||
16 | Services Fund.
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17 | Section 10. The Probate Act of 1975 is amended by changing | ||||||
18 | Section 6-1 as follows:
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19 | (755 ILCS 5/6-1) (from Ch. 110 1/2, par. 6-1)
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20 | Sec. 6-1.
Duty to file will - altering, destroying or | ||||||
21 | secreting.)
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22 | (a) Immediately
upon the death of the testator any person | ||||||
23 | who has the testator's will in his
possession
shall file it | ||||||
24 | with the clerk of the court of the proper county and upon
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1 | failure or refusal
to do so, the court on its motion or on the | ||||||
2 | petition of any interested person
may issue an
attachment and | ||||||
3 | compel the production of the will , subject to the provisions of | ||||||
4 | Section 5.15 of the Secretary of State Act .
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5 | (b) If any person wilfully alters or destroys a will | ||||||
6 | without the direction
of the testator
or wilfully secretes it | ||||||
7 | for the period of 30 days after the death of the
testator is | ||||||
8 | known
to him, the person so offending, on conviction thereof, | ||||||
9 | shall be sentenced as
in cases
of theft of property classified | ||||||
10 | as a Class 3 felony by the law in effect at the
date of the | ||||||
11 | offense. The 30-day period does not apply to the Secretary of | ||||||
12 | State when acting pursuant to Section 5.15 of the Secretary of | ||||||
13 | State Act.
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14 | (Source: P.A. 90-159, eff. 7-23-97.)".
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