HB0162 EngrossedLRB098 04168 HEP 34191 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Probate Act of 1975 is amended by changing
5Section 25-1 and adding Section 11-13.4 as follows:
 
6    (755 ILCS 5/11-13.4 new)
7    Sec. 11-13.4. Financial institution; guardianship accounts
8established on behalf of minors.
9    (a) If an account at a financial institution is a
10guardianship account established on behalf of a minor, the
11terms of the account must provide for compliance with orders of
12the court, if any, regarding the establishment and management
13of that account. A financial institution has a duty to inquire
14as to the existence of any court orders when opening a
15guardianship account on behalf of a minor. If the financial
16institution holds an account that is subject to a court order,
17the financial institution must obtain a court order granting
18the authority to release funds from the account. An order
19authorizing the disbursement of funds in the account may be
20granted only upon a showing of good cause.
21    (b) A guardian of a minor that establishes an account with
22a financial institution on behalf of the minor pursuant to a
23court order has a duty to present the court order to the

 

 

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1financial institution at the time the account is opened.
2    (c) As used in this Section, "financial institution"
3includes, but is not limited to, a bank, credit union,
4investment company, savings bank, savings and loan
5association, securities dealer, and trust company.
 
6    (755 ILCS 5/25-1)  (from Ch. 110 1/2, par. 25-1)
7    Sec. 25-1. Payment or delivery of small estate of decedent
8upon affidavit.
9    (a) When any person, or corporation, or financial
10institution (1) indebted to or holding personal estate of a
11decedent, (2) controlling the right of access to decedent's
12safe deposit box or (3) acting as registrar or transfer agent
13of any evidence of interest, indebtedness, property or right is
14furnished with a small estate affidavit in substantially the
15form hereinafter set forth, that person, or corporation, or
16financial institution, upon examining and approving the
17documents presented by the affiant which are attached to the
18small estate affidavit, shall pay the indebtedness, grant
19access to the safe deposit box, deliver the personal estate or
20transfer or issue the evidence of interest, indebtedness,
21property or right to persons and in the manner specified in
22paragraph 11 of the affidavit or to an agent appointed as
23hereinafter set forth.
24    (a-5) A person, corporation, or financial institution may
25not pay the indebtedness, grant access to the safe deposit box,

 

 

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1deliver the personal estate, or transfer or issue the evidence
2of interest, indebtedness, property or right as provided in
3subsection (a) of this Section, unless the affiant, or his or
4her agent, has first obtained a court order as provided in this
5subsection (a-5). A judge shall grant an order under this
6subsection (a-5) if the affiant presents: (i) the small estate
7affidavit; (ii) evidence of notice having been given to the
8heirs or legatees identified in paragraph 10 of the affidavit;
9and (iii) a petition asking the court to find that the
10affidavit does not appear to have been fraudulently executed
11and to grant access to property in the manner specified in
12paragraph 11 of the affidavit. A person, corporation, or
13financial institution has a duty to inquire as to the existence
14of any court orders before taking action under this Section.
15    (b)        Small Estate Affidavit
16    I,        (name of affiant)    , on oath state:
17    1.  (a) My post office address is:                      ;
18        (b) My residence address is:                    ; and
19        (c) I understand that, if I am an out-of-state
20resident, I submit myself to the jurisdiction of Illinois
21courts for all matters related to the preparation and use of
22this affidavit. My agent for service of process in Illinois is:
23
NAME..........................
24
ADDRESS.......................
25
CITY..........................
26
TELEPHONE (IF ANY)............

 

 

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1I understand that if no person is named above as my agent for
2service or, if for any reason, service on the named person
3cannot be effectuated, the clerk of the circuit court of
4......(County) (Judicial Circuit) Illinois is recognized by
5Illinois law as my agent for service of process.
6    2. The decedent's name is            ;
7    3. The date of the decedent's death was            , and I
8have attached a copy of the death certificate hereto.
9    4. The decedent's place of residence immediately before his
10death was            ;
11    5. No letters of office are now outstanding on the
12decedent's estate and no petition for letters is contemplated
13or pending in Illinois or in any other jurisdiction, to my
14knowledge;
15    6. The gross value of the decedent's entire personal
16estate, including the value of all property passing to any
17party either by intestacy or under a will, does not exceed
18$100,000. (Here, list each asset, e.g., cash, stock, and its
19fair market value.);
20    7. (a) All of the decedent's burial and funeral expenses
21have been paid, or (b) The amount of the decedent's unpaid
22burial and funeral expenses, medical bills, credit card bills,
23and real property taxes and the name and post office address of
24each person entitled thereto are as follows:
25Name and post officeAmount
26(Strike either 7(a) or 7(b)).

 

 

 

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1    8. There is no known unpaid claimant or contested claim
2against the decedent, except as stated in paragraph 7.
3    9.  (a) The names and places of residence of any surviving
4spouse, minor children and adult dependent* children of the
5decedent are as follows:
6Name and Place ofAge of
7RelationshipResidenceminor child
8*(Note: An adult dependent child is one who is unable to
9maintain himself and is likely to become a public charge.)
10    (b) The award allowable to the surviving spouse of a
11decedent who was an Illinois resident is $.......... ($20,000,
12plus $10,000 multiplied by the number of minor children and
13adult dependent children who resided with the surviving spouse
14at the time of the decedent's death. If any such child did not
15reside with the surviving spouse at the time of the decedent's
16death, so indicate).
17    (c) If there is no surviving spouse, the award allowable to
18the minor children and adult dependent children of a decedent
19who was an Illinois resident is $.......... ($20,000, plus
20$10,000 multiplied by the number of minor children and adult
21dependent children), to be divided among them in equal shares.
22If there is no surviving spouse and there are minor children,
23the affiant must be a court appointed guardian for one or more
24of the children. If this provision applies, the date of the
25court order making this appointment was .........., and I have

 
 

 

 

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1attached a copy of the court order.
2    10. (a) The decedent left no will. The names, places of
3residence and relationships of the decedent's heirs, and the
4portion of the estate to which each heir is entitled under the
5law, after all just debts and expenses described in paragraph 7
6are fully paid, where decedent died intestate are as follows:
7Name, relationshipAge ofPortion of
8and place of residenceminorEstate
9OR
10    (b) The decedent left a will, which has been filed with the
11clerk of an appropriate court. A certified copy of the will on
12file is attached. To the best of my knowledge and belief the
13will on file is the decedent's last will and was signed by the
14decedent and the attesting witnesses as required by law and
15would be admittable to probate. The names and places of
16residence of the legatees and the portion of the estate, if
17any, to which each legatee is entitled are as follows:
18Name, relationshipAge ofPortion of
19and place of residenceminorEstate
20    (Strike either 10(a) or 10(b)).
21    (c) Affiant is unaware of any dispute or potential conflict
22as to the heirship or will of the decedent.
23    10.1. I, ............(the affiant) state that I am the
24surviving spouse and the decedent and I resided together as

 

 

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1husband and wife and we were not legally separated, or
2otherwise separated, at the time of decedent's death.
3    10.2. I, ........... (the affiant) state that my
4relationship to the decedent is ................. and (check
5all that apply):
6... there is no surviving spouse; or
7... there is a surviving spouse, but the surviving spouse is:
8    ... unable to prepare the small estate affidavit for
9medical reasons as shown by the attached letter of a physician
10for the surviving spouse, based upon the physician's
11examination of the surviving spouse within 90 days prior to the
12date of the affidavit, attesting to and describing this
13disabling medical condition; or
14    ... has declined, refused, or asked affiant to prepare the
15small estate affidavit. The reason that the affiant has
16prepared this small estate affidavit rather than the surviving
17spouse is that (state here the precise time, date, and
18circumstances of the surviving spouse declining, refusing, or
19asking affiant to prepare the small estate affidavit):
20..........................................................
21    Attached is a statement of the surviving spouse in which
22the surviving spouse expressly declines or states that he or
23she refuses to prepare the small estate affidavit or expressly
24requests that the affiant prepare the small estate affidavit.
25This statement must be signed by the surviving spouse,
26witnessed by 2 persons unrelated to the affiant, and be

 

 

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1notarized.
2    11. The property described in paragraph 6 of this affidavit
3should be distributed, after all just debts and expenses
4described in paragraph 7 are fully paid, as follows:
5    Name        Specific sum or property to be distributed
 
 
6The foregoing statement is made under the penalties of
7perjury*.
8
.........................
9
Signature of Affiant
     
10*(Note: A fraudulent statement made under the penalties of
11perjury is perjury, as defined in Section 32-2 of the Criminal
12Code of 1961.)
13    (c) Appointment of Agent. If safe deposit access is
14involved or if sale of any personal property is desirable to
15facilitate distribution pursuant to the small estate
16affidavit, all persons named in paragraph 11 of the small
17estate affidavit (excluding minors and unascertained or
18disabled persons) may in writing appoint one or more persons as
19their agent for that purpose, provided that the writing
20contains the signature of each person, is witnessed by 2
21persons unrelated to the affiant and is notarized, and also
22shows the written consent of the surviving spouse and all adult
23children. The agent shall have power, without court approval,
24to gain access to, sell, and distribute the property for the

 

 

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1benefit of all persons named in paragraph 11 of the affidavit;
2and the payment, delivery, transfer, access or issuance shall
3be made or granted to or on the order of the agent.
4    (d) Release. Upon examination and approval of all documents
5presented by the affiant with this small estate affidavit,
6payment, delivery, transfer, access or issuance pursuant to a
7properly executed affidavit, the person, or corporation, or
8financial institution is released to the same extent as if the
9payment, delivery, transfer, access or issuance had been made
10or granted to the representative of the estate. Such person, or
11corporation, or financial institution is not required to see to
12the application or disposition of the property; but each person
13to whom a payment, delivery, transfer, access or issuance is
14made or given is answerable therefor to any person having a
15prior right and is accountable to any representative of the
16estate.
17    (e) The affiant signing the small estate affidavit prepared
18pursuant to subsection (b) of this Section shall indemnify and
19hold harmless all creditors and heirs of the decedent and other
20persons relying upon the affidavit who incur loss because of
21such reliance. That indemnification shall only be up to the
22amount lost because of the act or omission of the affiant. Any
23person recovering under this subsection (e) shall be entitled
24to reasonable attorney's fees and the expenses of recovery.
25    (f) The affiant of a small estate affidavit who is a
26non-resident of Illinois submits himself or herself to the

 

 

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1jurisdiction of Illinois courts for all matters related to the
2preparation or use of the affidavit. The affidavit shall
3provide the name, address, and phone number of a person whom
4the affiant names as his agent for service of process. If no
5such person is named or if, for any reason, service on the
6named person cannot be effectuated, the clerk of the circuit
7court of the county or judicial circuit of which the decedent
8was a resident at the time of his death shall be the agent for
9service of process.
10    (g) Any action properly taken under this Section, as
11amended by Public Act 93-877, on or after August 6, 2004 (the
12effective date of Public Act 93-877) is valid regardless of the
13date of death of the decedent.
14    (h) The changes made by this amendatory Act of the 96th
15General Assembly apply to a decedent whose date of death is on
16or after the effective date of this amendatory Act of the 96th
17General Assembly.
18(Source: P.A. 96-968, eff. 7-2-10.)