Judiciary I - Civil Law Committee
Filed: 2/25/2009
 
 

 




 

 		












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AMENDMENT TO HOUSE BILL 151 




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    AMENDMENT NO. ______. Amend House Bill 151  by replacing 
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everything after the enacting clause with the following:


 
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    "Section 5. The Secretary of State Act is amended  by adding 
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Section 5.15 as follows:
 
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    (15 ILCS 305/5.15  new)
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    Sec. 5.15. Deposit of wills.
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    (a) Definitions. As used in this Section:
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    "Depositor" means an attorney licensed or formerly 
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licensed to practice in the State of Illinois, the attorney's 
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representative, the guardian for the attorney, or the personal 
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representative of the attorney's decedent's estate.
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    "Testator" means a person who executed a will, other than 
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as a witness or official to whom acknowledgment of signing was 
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given.
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    "Will" refers to an original:
 


 






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        (1) will;
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        (2) codicil;
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        (3) will and one or more codicils;
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        (4) trust; or
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        (5) trust and one or more trust amendments.
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    (b) Deposit of wills. A depositor may deposit a will with 
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the Secretary of State if the depositor certifies in writing to 
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the Secretary of State that the depositor  is unable to locate 
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the testator after a diligent search. The certification shall 
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be on a form to be provided by the Secretary. This Section 
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applies whether it is known or unknown whether the testator is 
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living.

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    (c) Assumptions. The Secretary of State may assume, without 
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inquiring into the facts, that the depositor has first made a 
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diligent search for the testator.
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    (d) Fee. The Secretary of State shall collect a fee of $15 
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for each deposit of a will. The Secretary of State shall not 
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collect a separate fee for additional documents concurrently 
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deposited in relation to a single testator or for a single 
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joint will prepared for a husband and wife.

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    (e) Duty of Secretary of State upon receipt. Upon receipt 
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of a will under this Section, the Secretary of State shall:
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        (1) provide the depositor with a receipt for the will, 
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    which receipt shall contain the information designated on 
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    the envelope in accordance with  paragraph (3) of this 
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    subsection;
 


 






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        (2) place the will or wills deposited concurrently in 
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    relation to a single testator in one envelope and seal the 
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    envelope securely in the presence of the depositor or 
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    depositor's agent;
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        (3) designate on the envelope:
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            (A) the date of deposit;
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            (B) the name, address, and telephone number of the 
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        depositor;
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            (C) the name and last known address of the testator 
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        as provided by the depositor;
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            (D) at the depositor's option, any and all of the 
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        following information:
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                (i)  alternate names by which the testator may 
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            have been known;
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                (ii)  the testator's birth date, and
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                (iii) the last 4 digits of the testator's 
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            Social Security number; and
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            (E)  with respect to each document enclosed:
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                (i)  a short description of the document, 
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            including, if shown, its date of execution; and
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                (ii)  the number of pages in the document; and
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        (4) index the will alphabetically by the name of the 
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    testator, and by the alternate names set forth by which the 
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    testator may have been known.
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    (f) Status as a public record. An envelope and will 
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deposited under this Section are not  public records. The index 
 


 






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created under item (4) of subsection (e) is a public record.
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    (g) Duty of Secretary of State during testator's lifetime. 
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During the testator's lifetime, the Secretary of State shall:
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        (1) keep the envelope containing the will sealed; and
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        (2) deliver the envelope to:
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            (i) the testator;
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            (ii) a person authorized, in a writing signed by 
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        the testator and notarized, to
              receive the envelope; or
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            (iii) a person, entity, court, or government 
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        agency authorized to receive the
             envelope pursuant to 
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        an order entered by a court of competent
             jurisdiction.
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    (h) Duty of Secretary of State upon notification of death 
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of testator. If the Secretary of State has custody of the will 
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after the death of the testator and is notified of the death of 
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the testator by means of a certified copy of the testator's 
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death certificate  or by a certified copy of an order of court 
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determining the testator to be deceased, upon receipt of 
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payment of a retrieval fee in the amount of $10, the Secretary 
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of State shall promptly deliver the sealed will envelope to the 
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clerk of the circuit court of the county in which the probate 
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of the testator's will may occur as determined under Section 
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5-1 of the Probate Act of 1975 (755 ILCS 5/5-1).
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    (i) Duties of Secretary of State upon inquiry. Upon inquiry 
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by a person identified in paragraph (2) of subsection (g), or 
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upon inquiry of any person presenting a certified copy of the 
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testator's death  certificate or a certified copy of an order of 
 


 






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a court determining the testator to be deceased, the Secretary 
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of State shall inform the person whether the name of the 
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relevant testator appears in the Secretary of State's index of 
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wills. For the purposes of this subsection, the Secretary of 
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State need not be certain that the testator is the one being 
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inquired about, but may release that information if it is 
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possible that the testator is that one.
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    (j) Destruction of will. The Secretary of State may destroy 
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a will deposited under this Section if:
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        (1)  the Secretary of State has not received notice of 
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    the death of the testator; and
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        (2) at least 100 years have passed since the date the 
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    will was deposited.



            
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    (k) All fees received by the Secretary of State under this 
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Section must be deposited into the Secretary of State Special 
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Services Fund.


 
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    Section 10. The Probate Act of 1975 is amended  by changing 
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Section 6-1 as follows:
 



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    (755 ILCS 5/6-1)  (from Ch. 110 1/2, par. 6-1)


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    Sec. 6-1. 
Duty to file will - altering, destroying or 
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secreting.)

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    (a) Immediately
upon the death of the testator any person 
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who has the testator's will in his
possession
shall file it 
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with the clerk of the court of the proper county and upon

 


 






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failure or refusal
to do so, the court on its motion or on the 
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petition of any interested person
may issue an
attachment and 
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compel the production of the will, subject to the provisions of 
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Section 5.15 of the Secretary of State Act.

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    (b) If any person wilfully alters or destroys a will 
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without the direction
of the testator
or wilfully secretes it 
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for the period of 30 days after the death of the
testator is 
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known
to him, the person so offending, on conviction thereof, 
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shall be sentenced as
in cases
of theft of property classified 
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as a Class 3 felony by the law in effect at the
date of the 
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offense. The 30-day period does not apply to the Secretary of 
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State when acting pursuant to Section 5.15 of the Secretary of 
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State Act. 

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(Source: P.A. 90-159, eff. 7-23-97.)".