Full Text of HB0162 98th General Assembly
HB0162 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB0162 Introduced 1/16/2013, by Rep. Linda Chapa LaVia SYNOPSIS AS INTRODUCED: |
| 755 ILCS 5/11-13.4 new | | 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 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 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 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 children, 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.
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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 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 | 8 | | established on behalf of minors. | 9 | | (a) If an account at a financial institution is a | 10 | | guardianship account established on behalf of a minor, the | 11 | | terms of the account must provide for compliance with orders of | 12 | | the court, if any, regarding the establishment and management | 13 | | of that account. A financial institution has a duty to inquire | 14 | | as to the existence of any court orders when opening a | 15 | | guardianship account on behalf of a minor. If the financial | 16 | | institution holds an account that is subject to a court order, | 17 | | the financial institution must obtain a court order granting | 18 | | the authority to release funds from the account. An order | 19 | | authorizing the disbursement of funds in the account may be | 20 | | granted only upon a showing of good cause. | 21 | | (b) A guardian of a minor that establishes an account with | 22 | | a financial institution on behalf of the minor pursuant to a | 23 | | court order has a duty to present the court order to the |
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| 1 | | financial institution at the time the account is opened. | 2 | | (c) As used in this Section, "financial institution" | 3 | | includes, but is not limited to, a bank, credit union, | 4 | | investment company, savings bank, savings and loan | 5 | | association, 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 | 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 | 19 | | access 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.
| 24 | | (a-5) A person, corporation, or financial institution may | 25 | | not pay the
indebtedness, grant access to the safe deposit box, |
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| 1 | | deliver the personal
estate, or transfer or issue the evidence | 2 | | of interest, indebtedness,
property or right as provided in | 3 | | subsection (a) of this Section, unless the affiant, or his or | 4 | | her agent, has first obtained a court order as provided in this | 5 | | subsection (a-5). A judge shall grant an order under this | 6 | | subsection (a-5) if the affiant presents: (i) the small estate | 7 | | affidavit; (ii) evidence of notice having been given to the | 8 | | heirs or legatees identified in paragraph 10 of the affidavit; | 9 | | and (iii) a petition asking the court to find that the | 10 | | affidavit does not appear to have been fraudulently executed | 11 | | and to grant access to property in the manner specified in | 12 | | paragraph 11 of the affidavit. A person, corporation, or | 13 | | financial institution has a duty to inquire as to the existence | 14 | | of 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 | 20 | | resident, I submit myself
to the jurisdiction of Illinois | 21 | | courts for all matters related to the preparation
and use of | 22 | | this affidavit. My agent for service of process in Illinois is:
| 23 | | NAME..........................
| 24 | | ADDRESS.......................
| 25 | | CITY..........................
| 26 | | TELEPHONE (IF ANY)............
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| 1 | | I understand that if no person is named above as my agent for | 2 | | service or,
if for any reason, service on the named person | 3 | | cannot be effectuated, the
clerk of the circuit court of | 4 | | ......(County) (Judicial Circuit) Illinois
is recognized by | 5 | | Illinois 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 | 8 | | have
attached a copy of the death certificate hereto.
| 9 | | 4. The decedent's place of residence immediately before his
| 10 | | death was ;
| 11 | | 5. No letters of office are now outstanding on the | 12 | | decedent's estate and
no petition for letters is contemplated | 13 | | or pending in Illinois or in any
other jurisdiction, to my | 14 | | knowledge;
| 15 | | 6. The gross value of the decedent's entire personal | 16 | | estate, including
the value of all property passing to any | 17 | | party either by intestacy or
under a will, does not exceed | 18 | | $100,000. (Here, list each asset, e.g., cash,
stock, and its | 19 | | fair market value.);
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20 | | 7. (a) All of the decedent's burial and funeral expenses have been | 21 | | paid,
or (b) The amount of the decedent's unpaid burial and funeral | 22 | | expenses , medical bills, credit card bills, and real property taxes | 23 | | and the name
and post office address of each person entitled thereto | 24 | | are as follows: |
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25 | | Name and post office address | | Amount |
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26 | | (Strike either 7(a) or 7(b)). |
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| 1 | | 8. There is no known unpaid claimant or contested claim against | 2 | | the
decedent, except as stated in paragraph 7. |
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3 | | 9. (a) The names and places of residence of any surviving | 4 | | spouse, minor
children and adult dependent* children of the decedent | 5 | | are as follows: |
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6 | | Name and |
Place of |
Age of |
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7 | | Relationship |
Residence |
minor child |
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| 9 | | *(Note: An adult dependent child is one who is unable to maintain | 10 | | himself
and is likely to become a public charge.) |
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11 | | (b) The award allowable to the surviving spouse of a decedent who | 12 | | was
an Illinois resident is $..........
($20,000, plus $10,000 | 13 | | multiplied by the number of minor children and adult
dependent | 14 | | children who resided with the surviving spouse at the time of the
| 15 | | decedent's death. If any such child did not reside with the surviving
| 16 | | spouse at the time of the decedent's death, so indicate). |
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17 | | (c) If there is no surviving spouse, the award allowable to the | 18 | | minor
children and adult dependent children of a decedent who was an | 19 | | Illinois
resident is $.......... ($20,000, plus $10,000
multiplied by | 20 | | the number of minor children and adult dependent children),
to be | 21 | | divided among them in equal shares. If there is no surviving spouse | 22 | | and there are minor children, the affiant must be a court appointed | 23 | | guardian for one or more of the children. If this provision applies, | 24 | | the date of the court order making this appointment was .........., | 25 | | and I have attached a copy of the court order. |
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| 1 | | 10. (a) The decedent left no will. The names, places of residence | 2 | | and
relationships of the decedent's heirs, and the portion of the | 3 | | estate to
which each heir is entitled under the law , after all just | 4 | | debts and expenses described in paragraph 7 are fully paid, where | 5 | | decedent died intestate
are as follows: |
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6 | | Name, relationship |
Age of |
Portion of |
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7 | | and place of residence |
minor |
Estate |
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8 | | |
OR |
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| 10 | | (b) The decedent left a will, which has been filed with the clerk | 11 | | of
an appropriate court. A certified copy of the will on file is | 12 | | attached.
To the best of my knowledge and belief the will on file is | 13 | | the decedent's
last will and was signed by the decedent and the | 14 | | attesting witnesses as
required by law and would be admittable to | 15 | | probate. The names and places
of residence of the legatees and the | 16 | | portion of the estate, if any, to
which each legatee is entitled are | 17 | | as follows: |
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18 | | Name, relationship |
Age of |
Portion of |
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19 | | and place of residence |
minor |
Estate |
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| 21 | | (Strike either 10(a) or 10(b)). |
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22 | | (c) Affiant is unaware of any dispute or potential conflict as to | 23 | | the
heirship or will of the decedent. |
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| 1 | | 10.1. I, ............(the affiant) state that I am the surviving | 2 | | spouse and the decedent and I resided together as husband and wife and | 3 | | we were not legally separated, or otherwise separated, at the time of | 4 | | decedent's death. | |
5 | | 10.2. I, ........... (the affiant) state that my relationship to | 6 | | the decedent is ................. and (check all that apply): | |
7 | | ... there is no surviving spouse; or | |
8 | | ... there is a surviving spouse, but the surviving spouse is: | |
9 | | ... unable to prepare the small estate affidavit for medical | 10 | | reasons as shown by the attached letter of a physician for the | 11 | | surviving spouse, based upon the physician's examination of the | 12 | | surviving spouse within 90 days prior to the date of the affidavit, | 13 | | attesting to and describing this disabling medical condition; or | |
14 | | ... has declined, refused, or asked affiant to prepare the small | 15 | | estate affidavit. The reason that the
affiant has prepared this small | 16 | | estate affidavit rather than the surviving spouse is that
(state here | 17 | | the precise time, date, and circumstances of the surviving spouse | 18 | | declining,
refusing, or asking affiant to prepare the small estate | 19 | | affidavit): | 20 | | .......................................................... | |
21 | | Attached is a statement of the surviving spouse in which the | 22 | | surviving spouse expressly declines or states that he or she refuses | 23 | | to prepare the small estate affidavit or expressly requests that the | 24 | | affiant prepare the small estate affidavit. This statement must be | 25 | | signed by the surviving spouse, witnessed by 2 persons unrelated to | 26 | | the affiant, and be notarized. |
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| 1 | | 11. The property described in paragraph 6 of this affidavit | 2 | | should be
distributed , after all just debts and expenses described in | 3 | | paragraph 7 are fully paid, as follows: |
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4 | | Name Specific sum or property to be distributed | 5 | | The foregoing statement is made under the penalties of | 6 | | perjury*.
| 7 | | .........................
| 8 | | Signature of Affiant
| 9 | | *(Note: A fraudulent statement made under the penalties of | 10 | | perjury is
perjury, as defined in Section 32-2 of the Criminal | 11 | | Code of 1961.)
| 12 | | (c) Appointment of Agent. If safe deposit access is | 13 | | involved or if sale
of any personal property is desirable to | 14 | | facilitate distribution pursuant
to the small estate | 15 | | affidavit, all persons named in paragraph 11 of the
small | 16 | | estate affidavit (excluding minors and unascertained or | 17 | | disabled
persons) may in writing appoint one or more persons as | 18 | | their agent for that
purpose , provided that the writing | 19 | | contains the signature of each person, is witnessed by 2 | 20 | | persons unrelated to the affiant and is notarized, and also | 21 | | shows the written consent of the surviving spouse and all adult | 22 | | children . The agent shall have power, without court approval, | 23 | | to gain access
to, sell, and distribute the property for the | 24 | | benefit of all persons named
in paragraph 11 of the affidavit; |
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| 1 | | and the payment, delivery, transfer,
access or issuance shall | 2 | | be made or granted to or on the order of the agent.
| 3 | | (d) Release. Upon examination and approval of all documents | 4 | | presented by the affiant with this small estate affidavit, | 5 | | payment, delivery, transfer, access or issuance
pursuant to a | 6 | | properly executed affidavit, the person , or corporation , or | 7 | | financial institution is
released to the same extent as if the | 8 | | payment, delivery, transfer, access
or issuance had been made | 9 | | or granted to the representative of the estate.
Such person , or | 10 | | corporation , or financial institution is not required to see to | 11 | | the application or
disposition of the property; but each person | 12 | | to whom a payment, delivery,
transfer, access or issuance is | 13 | | made or given is answerable therefor to any
person having a | 14 | | prior right and is accountable to any representative of the
| 15 | | estate.
| 16 | | (e) The affiant signing the small estate affidavit prepared | 17 | | pursuant to
subsection (b) of this Section shall indemnify and | 18 | | hold harmless all creditors
and heirs of the decedent and other | 19 | | persons relying upon the affidavit who
incur loss because of | 20 | | such reliance. That indemnification shall only be
up to the | 21 | | amount lost because of the act or omission of the affiant. Any
| 22 | | person recovering under this subsection (e) shall be entitled | 23 | | to reasonable
attorney's fees and the expenses of recovery.
| 24 | | (f) The affiant of a small estate affidavit who is a | 25 | | non-resident of
Illinois submits himself or herself to the | 26 | | jurisdiction of Illinois courts
for all matters related to the |
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| 1 | | preparation or use of the affidavit. The
affidavit shall | 2 | | provide the name, address, and phone number of a person
whom | 3 | | the affiant names as his agent for service of process. If no | 4 | | such
person is named or if, for any reason, service on the | 5 | | named person cannot
be effectuated, the clerk of the circuit | 6 | | court of the county or judicial
circuit of which the decedent | 7 | | was a resident at the time of his death shall
be the agent for | 8 | | service of process.
| 9 | | (g) Any action properly taken under this Section, as | 10 | | amended by Public Act 93-877, on or after August 6, 2004 (the | 11 | | effective date of Public Act 93-877) is valid regardless of the | 12 | | date of death of the decedent.
| 13 | | (h) The changes made by this amendatory Act of the 96th | 14 | | General Assembly apply to a decedent whose date of death is on | 15 | | or after the effective date of this amendatory Act of the 96th
| 16 | | General Assembly. | 17 | | (Source: P.A. 96-968, eff. 7-2-10.)
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