SB0664 99TH GENERAL ASSEMBLY

LRB099 05937 HEP 25986 b

99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB0664

Introduced 1/28/2015, by Sen. Heather A. Steans

SYNOPSIS AS INTRODUCED:

755 ILCS 5/11-13.4 new
755 ILCS 5/25-1	from Ch. 110 1/2, par. 25-1

Amends the Probate Act of 1975. Provides that the terms of a guardianship account established on behalf of a minor at a financial institution must provide for compliance with court orders regarding the establishment and management of the account, and imposes certain other duties upon financial institutions. Provides that an entity may not act under the direction of a small estate affidavit unless the affiant, or his or her agent, has first presented the affidavit before a judge and obtained a court order granting access. Provides that if there is a surviving spouse, but the surviving spouse is not the affiant, the affiant must state the reason that the affiant, rather than the surviving spouse, has prepared the small estate affidavit. Provides that an affidavit not prepared by a surviving spouse must include a notarized statement, signed by the surviving spouse and witnessed by 2 persons unrelated to the affiant, stating that the surviving spouse declines to prepare the affidavit. Provides that if the reason for the surviving spouse's inability to prepare the affidavit is medically related, a letter from the surviving spouse's physician should be attached attesting to the medical condition that makes the surviving spouse unable to complete the affidavit. Provides that if there is no surviving spouse and there is one or more minor child, the affiant must be a court-appointed guardian for one or more of the children. Provides that if the surviving spouse is the affiant, he or she shall affirm that he or she was not separated from the decedent. Makes other changes.

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 adding Section 11-13.4 as follows:

(755 ILCS 5/11-13.4 new)

Sec. 11-13.4. Financial institution; guardianship accounts established on behalf of minors.

(a) If an account at a financial institution is a guardianship account established on behalf of a minor, the terms of the account must provide for compliance with orders of the court, if any, regarding the establishment and management of that account. A financial institution has a duty to inquire as to the existence of any court orders when opening a guardianship account on behalf of a minor. If the financial institution holds an account that is subject to a court order, the financial institution must obtain a court order granting the authority to release funds from the account. An order authorizing the disbursement of funds in the account may be granted only upon a showing of good cause.

(b) A guardian of a minor that establishes an account with a financial institution on behalf of the minor pursuant to a court order has a duty to present the court order to the financial institution at the time the account is opened.

(c) As used in this Section, "financial institution" includes, but is not limited to, a bank, credit union, investment company, savings bank, savings and loan association, securities dealer, and trust company.

(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, corporation, or financial institution (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, corporation, or financial institution, upon examining and approving the documents presented by the affiant which are attached to the small estate affidavit, 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 the affidavit or to an agent appointed as hereinafter set forth.

(a-5) A person, corporation, or financial institution may not 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 as provided in subsection (a) of this Section, unless the affiant, or his or her agent, has first obtained a court order as provided in this subsection (a-5). A judge shall grant an order under this subsection (a-5) if the affiant presents: (i) the small estate affidavit; (ii) evidence of notice having been given to the heirs or legatees identified in paragraph 10 of the affidavit; and (iii) a petition asking the court to find that the affidavit does not appear to have been fraudulently executed and to grant access to property in the manner specified in paragraph 11 of the affidavit. A person, corporation, or financial institution has a duty to inquire as to the existence of any court orders before taking action under this Section.

(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.);

7. (a) All of the decedent's burial and funeral expenses and other debts have been paid, or

(b) All of the decedent's known unpaid debts are listed and classified as follows (include the name, post office address, and amount):

Class 1: funeral and burial expenses, which include reasonable amounts paid for a burial space, crypt, or niche; a marker on the burial space; and care of the burial space, crypt, or niche; expenses of administration; and statutory custodial claims as follows:

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

Class 2: the surviving spouse's award or child's award, if applicable, as follows:

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

Class 3: debts due the United States, as follows:

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

Class 4: money due employees of the decedent of not more than $800 for each claimant for services rendered within 4 months prior to the decedent's death and expenses attending the last illness, as follows:

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

Class 5: money and property received or held in trust by the decedent which cannot be identified or traced, as follows:

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

Class 6: debts due the State of Illinois and any county, township, city, town, village, or school district located within Illinois, as follows:

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

Class 7: all other claims, as follows:

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

(Strike either 7(a) or 7(b)).

7.5. I understand that all valid claims against the decedent's estate described in paragraph 7 must be paid by me from the decedent's estate before any distribution is made to any heir or legatee. I further understand that the decedent's estate should pay all claims in the order set forth above, and if the decedent's estate is insufficient to pay the claims in any one class, the claims in that class shall be paid pro rata.

8. There is no known unpaid claimant or contested claim against the decedent, except as stated in paragraph 7.

9. (a) The names and places of residence of any surviving spouse, minor children and adult dependent* children of the decedent are as follows: *(Note: An adult dependent child is one who is unable to maintain himself and is likely to become a public charge.)

(b) The award allowable to the surviving spouse of a decedent who was an Illinois resident is $.......... ($20,000, plus $10,000 multiplied by the number of minor children and adult dependent children who resided with the surviving spouse at the time of the decedent's death. If any such child did not reside with the surviving spouse at the time of the decedent's death, so indicate).

(c) If there is no surviving spouse, the award allowable to the minor children and adult dependent children of a decedent who was an Illinois resident is $.......... ($20,000, plus $10,000 multiplied by the number of minor children and adult dependent children), to be divided among them in equal shares. If there is no surviving spouse and there are minor children, the affiant must be a court appointed guardian for one or more of the children. If this provision applies, the date of the court order making this appointment was .........., and I have attached a copy of the court order.

10. (a) The decedent left no will. The names, places of residence and relationships of the decedent's heirs, and the portion of the estate to which each heir is entitled under the law, after all just debts and expenses described in paragraph 7 are fully paid, where decedent died intestate are as follows:

(b) The decedent left a will, which has been filed with the clerk of an appropriate court. A certified copy of the will on file is attached. To the best of my knowledge and belief the will on file is the decedent's last will and was signed by the decedent and the attesting witnesses as required by law and would be admittable to probate. The names and places of residence of the legatees and the portion of the estate, if any, to which each legatee is entitled are as follows:

(Strike either 10(a) or 10(b)).

(c) Affiant is unaware of any dispute or potential conflict as to the heirship or will of the decedent.

10.1. I, ............(the affiant) state that I am the surviving spouse and the decedent and I resided together as husband and wife and we were not legally separated, or otherwise separated, at the time of decedent's death.

10.2. I, ........... (the affiant) state that my relationship to the decedent is ................. and (check all that apply): ... there is no surviving spouse; or ... there is a surviving spouse, but the surviving spouse is:

... unable to prepare the small estate affidavit for medical reasons as shown by the attached letter of a physician for the surviving spouse, based upon the physician's examination of the surviving spouse within 90 days prior to the date of the affidavit, attesting to and describing this disabling medical condition; or

... has declined, refused, or asked affiant to prepare the small estate affidavit. The reason that the affiant has prepared this small estate affidavit rather than the surviving spouse is that (state here the precise time, date, and circumstances of the surviving spouse declining, refusing, or asking affiant to prepare the small estate affidavit): ..........................................................

Attached is a statement of the surviving spouse in which the surviving spouse expressly declines or states that he or she refuses to prepare the small estate affidavit or expressly requests that the affiant prepare the small estate affidavit. This statement must be signed by the surviving spouse, witnessed by 2 persons unrelated to the affiant, and be notarized.

10.3. My relationship to the decedent or the decedent's estate is as follows:........................................

10.5. (The following paragraph should appear in bold type and in not less than 14-point font):

I understand that the decedent's estate must be distributed first to satisfy claims against the decedent's estate as set forth in paragraph 7.5 of this affidavit before any distribution is made to any heir or legatee. By signing this affidavit, I agree to indemnify and hold harmless all creditors of the decedent's estate, the decedent's heirs and legatees, and other persons, corporations, or financial institutions relying upon this affidavit who incur any loss because of reliance on this affidavit, up to the amount lost because of any act or omission by me. I further understand that any person, corporation, or financial institution recovering under this indemnification provision shall be entitled to reasonable attorney's fees and the expenses of recovery.

11. After payment by me from the decedent's estate of all debts and expenses listed in paragraph 7, any remaining property described in paragraph 6 of this affidavit should be distributed as follows:

Name Specific sum or property to be distributed

The foregoing statement is made under the penalties of perjury*.

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

Signature of Affiant

Signed and sworn before me on (insert date).

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

Notary Public

*(Note: A fraudulent statement made under the penalties of perjury is perjury, as defined in Section 32-2 of the Criminal Code of 2012.)

(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, the affiant under the small estate affidavit may in writing appoint one or more persons as the affiant's agent for that purpose, provided that the writing contains the signature of each person, is witnessed by 2 persons unrelated to the affiant and is notarized, and also shows the written consent of the surviving spouse and all adult children. The agent shall have power, without court approval, to gain access to, sell, and distribute the property in the manner specified in paragraphs 7.5 and 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. The affiant may appoint himself or herself as the designated representative to exercise the powers and perform the duties of an agent described in this subsection (c).

(d) Reliance and Release. Any person, corporation, or financial institution who, upon examination and approval of all documents presented by the affiant with this small estate affidavit, acts in good faith reliance on a copy of a document purporting to be a small estate affidavit that is substantially in compliance with subsection (b) of this Section shall be fully protected and released upon payment, delivery, transfer, access or issuance pursuant to such a document 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, corporation, or financial institution 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) Distributions pursuant to an affidavit substantially in the form set forth in subsection (b) of this Section may be made to the affiant, if so specified in paragraph 11, notwithstanding the disclosure of known unpaid debts. The affiant, acting on behalf of the decedent's estate, is obligated to pay all valid claims against the decedent's estate before any distribution is made to any heir or legatee. The affiant signing the small estate affidavit prepared pursuant to subsection (b) of this Section shall indemnify and hold harmless all creditors, heirs, and legatees of the decedent and other persons, corporations, or financial institutions 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, corporation, or financial institution 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.

(h) The changes made by this amendatory Act of the 96th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 96th General Assembly.

(i) The changes made by this amendatory Act of the 98th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 98th General Assembly.

(Source: P.A. 97-1150, eff. 1-25-13; 98-836, eff. 1-1-15.)