Full Text of HB0025 98th General Assembly
HB0025 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB0025 Introduced 1/9/2013, by Rep. Mary E. Flowers SYNOPSIS AS INTRODUCED: |
| 755 ILCS 5/25-1 | from Ch. 110 1/2, par. 25-1 |
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Amends the Probate Act of 1975. Provides that any person, corporation, or financial institution (instead of person or corporation) holding or controlling personal property shall, upon examining and approving the documents attached to the affidavit, deliver or pay over the personal property pursuant to the provisions of the small estate affidavit. Provides that the affidavit shall state that the burial and funeral expenses, medical bills, credit card bills, and real property taxes (instead of funeral expenses) have been, or remain to be, paid. Provides that if there is a surviving spouse, but the surviving spouse is unable to prepare the small estate affidavit or has declined, refused, or asked the affiant to prepare the small estate affidavit, the affiant must state the reason that the affiant has prepared the small estate affidavit rather than the surviving spouse. Provides that the explanation shall include the precise time, date, and circumstances of the surviving spouse declining, refusing, or asking the affiant to prepare the small estate affidavit or state the reason that the surviving spouse is unable to prepare the small estate affidavit. Provides that if the reason for the surviving spouse's inability to prepare the affidavit is medically related that 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 children, the affiant must be a court appointed guardian for one or more of the children. Provides that the property held shall be paid, after the burial, funeral, medical, and credit card bills, and real estate taxes are paid. Provides that if the surviving spouse is the affiant that he or she shall affirm that he or she was not separated from the decedent. Makes other changes.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Probate Act of 1975 is amended by changing | 5 | | Section 25-1 as follows:
| 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 | 8 | | upon
affidavit. | 9 | | (a) When any person , or corporation , or financial | 10 | | institution (1) indebted to or holding
personal estate of a | 11 | | decedent, (2) controlling the right of access to
decedent's | 12 | | safe deposit box or (3) acting as registrar or transfer agent
| 13 | | of any evidence of interest, indebtedness, property or right is
| 14 | | furnished with a small estate affidavit in substantially the
| 15 | | form hereinafter set forth, that person , or corporation , or | 16 | | financial institution upon examining and approving the | 17 | | documents presented by the affiant which are attached to the | 18 | | small estate affidavit shall pay the
indebtedness, grant access | 19 | | to the safe deposit box, deliver the personal
estate or | 20 | | transfer or issue the evidence of interest, indebtedness,
| 21 | | property or right to persons and in the manner specified in | 22 | | paragraph 11 of
the affidavit or to an agent appointed as | 23 | | hereinafter set forth.
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| 1 | | (b) Small Estate Affidavit
| 2 | | I, (name of affiant) , on oath state:
| 3 | | 1. (a) My post office address is: ;
| 4 | | (b) My residence address is: ; and
| 5 | | (c) I understand that, if I am an out-of-state | 6 | | resident, I submit myself
to the jurisdiction of Illinois | 7 | | courts for all matters related to the preparation
and use of | 8 | | this affidavit. My agent for service of process in Illinois is:
| 9 | | NAME..........................
| 10 | | ADDRESS.......................
| 11 | | CITY..........................
| 12 | | TELEPHONE (IF ANY)............
| 13 | | I understand that if no person is named above as my agent for | 14 | | service or,
if for any reason, service on the named person | 15 | | cannot be effectuated, the
clerk of the circuit court of | 16 | | ......(County) (Judicial Circuit) Illinois
is recognized by | 17 | | Illinois law as my agent for service of process.
| 18 | | 2. The decedent's name is ;
| 19 | | 3. The date of the decedent's death was , and I | 20 | | have
attached a copy of the death certificate hereto.
| 21 | | 4. The decedent's place of residence immediately before his
| 22 | | death was ;
| 23 | | 5. No letters of office are now outstanding on the | 24 | | decedent's estate and
no petition for letters is contemplated | 25 | | or pending in Illinois or in any
other jurisdiction, to my | 26 | | knowledge;
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| 1 | | 6. The gross value of the decedent's entire personal | 2 | | estate, including
the value of all property passing to any | 3 | | party either by intestacy or
under a will, does not exceed | 4 | | $100,000. (Here, list each asset, e.g., cash,
stock, and its | 5 | | fair market value.);
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6 | | 7. (a) All of the decedent's burial and funeral expenses | 7 | | have been paid,
or (b) The amount of the decedent's unpaid | 8 | | burial and funeral expenses , medical bills, credit card bills, | 9 | | and real property taxes and the name
and post office address of | 10 | | each person entitled thereto are as follows: |
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11 | | Name and post office address | | Amount |
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12 | | (Strike either 7(a) or 7(b)). |
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13 | | 8. There is no known unpaid claimant or contested claim | 14 | | against the
decedent, except as stated in paragraph 7. |
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15 | | 9. (a) The names and places of residence of any surviving | 16 | | spouse, minor
children and adult dependent* children of the | 17 | | decedent are as follows: |
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18 | | Name and |
Place of |
Age of |
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19 | | Relationship |
Residence |
minor child |
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20 | | *(Note: An adult dependent child is one who is unable to | 21 | | maintain himself
and is likely to become a public charge.) |
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| 1 | | (b) The award allowable to the surviving spouse of a | 2 | | decedent who was
an Illinois resident is $..........
($20,000, | 3 | | plus $10,000 multiplied by the number of minor children and | 4 | | adult
dependent children who resided with the surviving spouse | 5 | | at the time of the
decedent's death. If any such child did not | 6 | | reside with the surviving
spouse at the time of the decedent's | 7 | | death, so indicate). |
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8 | | (c) If there is no surviving spouse, the award allowable to | 9 | | the minor
children and adult dependent children of a decedent | 10 | | who was an Illinois
resident is $.......... ($20,000, plus | 11 | | $10,000
multiplied by the number of minor children and adult | 12 | | dependent children),
to be divided among them in equal shares. | 13 | | If there is no surviving spouse and there are minor children, | 14 | | the affiant must be a court appointed guardian for one or more | 15 | | of the children. If this provision applies, the date of the | 16 | | court order making this appointment was .........., and I have | 17 | | attached a copy of the court order. |
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18 | | 10. (a) The decedent left no will. The names, places of | 19 | | residence and
relationships of the decedent's heirs, and the | 20 | | portion of the estate to
which each heir is entitled under the | 21 | | law , after all just debts and expenses described in paragraph 7 | 22 | | are fully paid, where decedent died intestate
are as follows: |
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23 | | Name, relationship |
Age of |
Portion of |
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24 | | and place of residence |
minor |
Estate |
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25 | | |
OR |
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| 1 | | (b) The decedent left a will, which has been filed with the | 2 | | clerk of
an appropriate court. A certified copy of the will on | 3 | | file is attached.
To the best of my knowledge and belief the | 4 | | will on file is the decedent's
last will and was signed by the | 5 | | decedent and the attesting witnesses as
required by law and | 6 | | would be admittable to probate. The names and places
of | 7 | | residence of the legatees and the portion of the estate, if | 8 | | any, to
which each legatee is entitled are as follows: |
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9 | | Name, relationship |
Age of |
Portion of |
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10 | | and place of residence |
minor |
Estate |
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11 | | (Strike either 10(a) or 10(b)). |
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12 | | (c) Affiant is unaware of any dispute or potential conflict | 13 | | as to the
heirship or will of the decedent. |
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14 | | 10.1. I, ............(the affiant) state that I am the | 15 | | surviving spouse and the decedent and I resided together as | 16 | | husband and wife and we were not legally separated, or | 17 | | otherwise separated, at the time of decedent's death. | |
18 | | 10.2. I, ........... (the affiant) state that my | 19 | | relationship to the decedent is ................. and (check | 20 | | all that apply): | |
21 | | ... there is no surviving spouse; or | |
22 | | ... there is a surviving spouse, but the surviving spouse is: | |
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| 1 | | ... unable to prepare the small estate affidavit for | 2 | | medical reasons as shown by the attached letter of a physician | 3 | | for the surviving spouse, based upon the physician's | 4 | | examination of the surviving spouse within 90 days prior to the | 5 | | date of the affidavit, attesting to and describing this | 6 | | disabling medical condition; or | |
7 | | ... has declined, refused, or asked affiant to prepare the | 8 | | small estate affidavit. The reason that the
affiant has | 9 | | prepared this small estate affidavit rather than the surviving | 10 | | spouse is that
(state here the precise time, date, and | 11 | | circumstances of the surviving spouse declining,
refusing, or | 12 | | asking affiant to prepare the small estate affidavit): | 13 | | .......................................................... | 14 | | Attached is a statement of the surviving spouse in which the | 15 | | surviving spouse expressly declines or states that he or she | 16 | | refuses to prepare the small estate affidavit or expressly | 17 | | requests that the affiant prepare the small estate affidavit. | 18 | | This statement must be signed by the surviving spouse, | 19 | | witnessed by 2 persons unrelated to the affiant, and be | 20 | | notarized. |
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21 | | 11. The property described in paragraph 6 of this affidavit | 22 | | should be
distributed , after all just debts and expenses | 23 | | described in paragraph 7 are fully paid, as follows: |
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24 | | Name Specific sum or property to be distributed |
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| 1 | | The foregoing statement is made under the penalties of | 2 | | perjury*.
| 3 | | .........................
| 4 | | Signature of Affiant
| 5 | | *(Note: A fraudulent statement made under the penalties of | 6 | | perjury is
perjury, as defined in Section 32-2 of the Criminal | 7 | | Code of 1961.)
| 8 | | (c) Appointment of Agent. If safe deposit access is | 9 | | involved or if sale
of any personal property is desirable to | 10 | | facilitate distribution pursuant
to the small estate | 11 | | affidavit, all persons named in paragraph 11 of the
small | 12 | | estate affidavit (excluding minors and unascertained or | 13 | | disabled
persons) may in writing appoint one or more persons as | 14 | | their agent for that
purpose , provided that the writing | 15 | | contains the signature of each person, is witnessed by 2 | 16 | | persons unrelated to the affiant and is notarized, and also | 17 | | shows the written consent of the surviving spouse and all adult | 18 | | children . The agent shall have power, without court approval, | 19 | | to gain access
to, sell, and distribute the property for the | 20 | | benefit of all persons named
in paragraph 11 of the affidavit; | 21 | | and the payment, delivery, transfer,
access or issuance shall | 22 | | be made or granted to or on the order of the agent.
| 23 | | (d) Release. Upon examination and approval of all documents | 24 | | presented by the affiant with this small estate affidavit, | 25 | | payment, delivery, transfer, access or issuance
pursuant to a | 26 | | properly executed affidavit, the person , or corporation , or |
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| 1 | | financial institution is
released to the same extent as if the | 2 | | payment, delivery, transfer, access
or issuance had been made | 3 | | or granted to the representative of the estate.
Such person , or | 4 | | corporation , or financial institution is not required to see to | 5 | | the application or
disposition of the property; but each person | 6 | | to whom a payment, delivery,
transfer, access or issuance is | 7 | | made or given is answerable therefor to any
person having a | 8 | | prior right and is accountable to any representative of the
| 9 | | estate.
| 10 | | (e) The affiant signing the small estate affidavit prepared | 11 | | pursuant to
subsection (b) of this Section shall indemnify and | 12 | | hold harmless all creditors
and heirs of the decedent and other | 13 | | persons relying upon the affidavit who
incur loss because of | 14 | | such reliance. That indemnification shall only be
up to the | 15 | | amount lost because of the act or omission of the affiant. Any
| 16 | | person recovering under this subsection (e) shall be entitled | 17 | | to reasonable
attorney's fees and the expenses of recovery.
| 18 | | (f) The affiant of a small estate affidavit who is a | 19 | | non-resident of
Illinois submits himself or herself to the | 20 | | jurisdiction of Illinois courts
for all matters related to the | 21 | | preparation or use of the affidavit. The
affidavit shall | 22 | | provide the name, address, and phone number of a person
whom | 23 | | the affiant names as his agent for service of process. If no | 24 | | such
person is named or if, for any reason, service on the | 25 | | named person cannot
be effectuated, the clerk of the circuit | 26 | | court of the county or judicial
circuit of which the decedent |
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| 1 | | was a resident at the time of his death shall
be the agent for | 2 | | service of process.
| 3 | | (g) Any action properly taken under this Section, as | 4 | | amended by Public Act 93-877, on or after August 6, 2004 (the | 5 | | effective date of Public Act 93-877) is valid regardless of the | 6 | | date of death of the decedent.
| 7 | | (h) The changes made by this amendatory Act of the 96th | 8 | | General Assembly apply to a decedent whose date of death is on | 9 | | or after the effective date of this amendatory Act of the 96th
| 10 | | General Assembly. | 11 | | (Source: P.A. 96-968, eff. 7-2-10.)
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