HB3693 96TH GENERAL ASSEMBLY

LRB096 08521 AJO 18641 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB3693

Introduced 2/24/2009, by Rep. Patricia R. Bellock

SYNOPSIS AS INTRODUCED:

755 ILCS 5/25-1	from Ch. 110 1/2, par. 25-1
755 ILCS 5/25-5 new

Amends the Probate Act of 1975. Provides that the small estate affidavit form must include a statement that Illinois law provides that persons are entitled to preference in the following order to prepare a small estate affidavit: surviving spouse; children; grandchildren; parents; brothers and sisters; nearest kindred; and the public administrator. Provides that the affiant must state which of these apply: no heir of the decedent has a superior preference to prepare the small estate affidavit; the heir with an identical or superior preference to prepare the affidavit has declined or refused to do so; or there is a reason that the affiant has prepared the affidavit rather than the person with an equal or superior preference. Requires that the affidavit include a notice stating that if several persons are claiming the right to prepare a small estate affidavit, a court may determine which one shall be entitled to do so. Provides that a person completing a small estate affidavit shall comply with these requirements included in the affidavit form.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

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 Section 25-1 and by adding Section 25-5 as follows:

(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 or corporation (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 or corporation 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 paragraph 11 of 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.);

Name Specific sum or property to be distributed The foregoing statement is made under the penalties of perjury*.

.........................

Signature of Affiant

*(Note: A fraudulent statement made under the penalties of perjury is perjury, as defined in Section 32-2 of the Criminal Code of 1961.)

(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, all persons named in paragraph 11 of the small estate affidavit (excluding minors and unascertained or disabled persons) may in writing appoint one or more persons as their agent for that purpose. The agent shall have power, without court approval, to gain access to, sell, and distribute the property for the benefit of all persons named in paragraph 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.

(d) Release. Upon payment, delivery, transfer, access or issuance pursuant to a properly executed affidavit, the person or corporation is released 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 or corporation 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) The affiant signing the small estate affidavit prepared pursuant to subsection (b) of this Section shall indemnify and hold harmless all creditors and heirs of the decedent and other persons 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 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.

(Source: P.A. 93-877, eff. 8-6-04; 94-57, eff. 6-17-05.)

(755 ILCS 5/25-5 new)

Sec. 25-5. Persons entitled to preference.

(a) The following persons are entitled to preference, in the following order, in having the authority to prepare and present a small estate affidavit:

(1) The surviving spouse.

(2) The children.

(3) The grandchildren.

(4) The parents.

(5) The brothers and sisters.

(6) The nearest kindred.

(7) The Public Administrator.

(b) The affiant shall state his or her relationship to the decedent and shall include in the affidavit, as applicable: his or her statement that no heir of the decedent is entitled to prepare a small estate affidavit for the decedent in equal or superior preference to the affiant; an identification of the heir of the decedent entitled to prepare a small estate affidavit for the decedent in equal or superior preference to the affiant, and a statement that that person declined, refused, or requested that the affiant prepare the small estate affidavit; and the reason that the affiant prepared the small estate affidavit rather than the person having an equal or superior preference to the affiant.

(c) When several persons are claiming the right to prepare a small estate affidavit, and have equal preference in entitlement to do so, a court may determine which of them is entitled to prepare the small estate affidavit.