Full Text of SB1049 98th General Assembly
SB1049sam001 98TH GENERAL ASSEMBLY | Sen. Heather A. Steans Filed: 4/9/2014
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| 1 | | AMENDMENT TO SENATE BILL 1049
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1049 by replacing | 3 | | everything after the enacting clause with the following:
| 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, |
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| 1 | | the financial institution must obtain a court order granting | 2 | | the authority to release funds from the account. An order | 3 | | authorizing the disbursement of funds in the account may be | 4 | | granted only upon a showing of good cause. | 5 | | (b) A guardian of a minor that establishes an account with | 6 | | a financial institution on behalf of the minor pursuant to a | 7 | | court order has a duty to present the court order to the | 8 | | financial institution at the time the account is opened. | 9 | | (c) As used in this Section, "financial institution" | 10 | | includes, but is not limited to, a bank, credit union, | 11 | | investment company, savings bank, savings and loan | 12 | | association, securities dealer, and trust company.
| 13 | | (755 ILCS 5/25-1) (from Ch. 110 1/2, par. 25-1)
| 14 | | Sec. 25-1. Payment or delivery of small estate of decedent | 15 | | upon
affidavit. | 16 | | (a) When any person , or corporation , or financial | 17 | | institution (1) indebted to or holding
personal estate of a | 18 | | decedent, (2) controlling the right of access to
decedent's | 19 | | safe deposit box or (3) acting as registrar or transfer agent
| 20 | | of any evidence of interest, indebtedness, property or right is
| 21 | | furnished with a small estate affidavit in substantially the
| 22 | | form hereinafter set forth, that person , or corporation , or | 23 | | financial institution, upon examining and approving the | 24 | | documents presented by the affiant which are attached to the | 25 | | small estate affidavit, shall pay the
indebtedness, grant |
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| 1 | | access to the safe deposit box, deliver the personal
estate or | 2 | | transfer or issue the evidence of interest, indebtedness,
| 3 | | property or right to persons and in the manner specified in | 4 | | paragraph 11 of
the affidavit or to an agent appointed as | 5 | | hereinafter set forth.
| 6 | | (a-5) A person, corporation, or financial institution may | 7 | | not pay the
indebtedness, grant access to the safe deposit box, | 8 | | deliver the personal
estate, or transfer or issue the evidence | 9 | | of interest, indebtedness,
property or right as provided in | 10 | | subsection (a) of this Section, unless the affiant, or his or | 11 | | her agent, has first obtained a court order as provided in this | 12 | | subsection (a-5). A judge shall grant an order under this | 13 | | subsection (a-5) if the affiant presents: (i) the small estate | 14 | | affidavit; (ii) evidence of notice having been given to the | 15 | | heirs or legatees identified in paragraph 10 of the affidavit; | 16 | | and (iii) a petition asking the court to find that the | 17 | | affidavit does not appear to have been fraudulently executed | 18 | | and to grant access to property in the manner specified in | 19 | | paragraph 11 of the affidavit. A person, corporation, or | 20 | | financial institution has a duty to inquire as to the existence | 21 | | of any court orders before taking action under this Section. | 22 | | (b) Small Estate Affidavit
| 23 | | I, (name of affiant) , on oath state:
| 24 | | 1. (a) My post office address is: ;
| 25 | | (b) My residence address is: ; and
| 26 | | (c) I understand that, if I am an out-of-state |
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| 1 | | resident, I submit myself
to the jurisdiction of Illinois | 2 | | courts for all matters related to the preparation
and use of | 3 | | this affidavit. My agent for service of process in Illinois is:
| 4 | | NAME..........................
| 5 | | ADDRESS.......................
| 6 | | CITY..........................
| 7 | | TELEPHONE (IF ANY)............
| 8 | | I understand that if no person is named above as my agent for | 9 | | service or,
if for any reason, service on the named person | 10 | | cannot be effectuated, the
clerk of the circuit court of | 11 | | ......(County) (Judicial Circuit) Illinois
is recognized by | 12 | | Illinois law as my agent for service of process.
| 13 | | 2. The decedent's name is ;
| 14 | | 3. The date of the decedent's death was , and I | 15 | | have
attached a copy of the death certificate hereto.
| 16 | | 4. The decedent's place of residence immediately before his
| 17 | | death was ;
| 18 | | 5. No letters of office are now outstanding on the | 19 | | decedent's estate and
no petition for letters is contemplated | 20 | | or pending in Illinois or in any
other jurisdiction, to my | 21 | | knowledge;
| 22 | | 6. The gross value of the decedent's entire personal | 23 | | estate, including
the value of all property passing to any | 24 | | party either by intestacy or
under a will, does not exceed | 25 | | $100,000. (Here, list each asset, e.g., cash,
stock, and its | 26 | | fair market value.);
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| 1 | | 7. (a) All of the decedent's burial and funeral expenses | 2 | | have been paid,
or (b) The amount of the decedent's unpaid | 3 | | burial and funeral expenses , medical bills, credit card bills, | 4 | | and real property taxes and the name
and post office address of | 5 | | each person entitled thereto are as follows: |
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6 | | Name and post office address | | Amount |
| 7 | | (Strike either 7(a) or 7(b)). | 8 | | 8. There is no known unpaid claimant or contested claim | 9 | | against the
decedent, except as stated in paragraph 7. | 10 | | 9. (a) The names and places of residence of any surviving | 11 | | spouse, minor
children and adult dependent* children of the | 12 | | decedent are as follows: |
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13 | | Name and |
Place of |
Age of |
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14 | | Relationship |
Residence |
minor child |
| 15 | | *(Note: An adult dependent child is one who is unable to | 16 | | maintain himself
and is likely to become a public charge.) | 17 | | (b) The award allowable to the surviving spouse of a | 18 | | decedent who was
an Illinois resident is $..........
($20,000, | 19 | | plus $10,000 multiplied by the number of minor children and | 20 | | adult
dependent children who resided with the surviving spouse | 21 | | at the time of the
decedent's death. If any such child did not | 22 | | reside with the surviving
spouse at the time of the decedent's | 23 | | death, so indicate). | 24 | | (c) If there is no surviving spouse, the award allowable to | 25 | | the minor
children and adult dependent children of a decedent | 26 | | who was an Illinois
resident is $.......... ($20,000, plus |
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| 1 | | $10,000
multiplied by the number of minor children and adult | 2 | | dependent children),
to be divided among them in equal shares. | 3 | | If there is no surviving spouse and there are minor children, | 4 | | the affiant must be a court appointed guardian for one or more | 5 | | of the children. If this provision applies, the date of the | 6 | | court order making this appointment was .........., and I have | 7 | | attached a copy of the court order. | 8 | | 10. (a) The decedent left no will. The names, places of | 9 | | residence and
relationships of the decedent's heirs, and the | 10 | | portion of the estate to
which each heir is entitled under the | 11 | | law , after all just debts and expenses described in paragraph 7 | 12 | | are fully paid, where decedent died intestate
are as follows: |
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13 | | Name, relationship |
Age of |
Portion of |
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14 | | and place of residence |
minor |
Estate |
| 15 | | OR | 16 | | (b) The decedent left a will, which has been filed with the | 17 | | clerk of
an appropriate court. A certified copy of the will on | 18 | | file is attached.
To the best of my knowledge and belief the | 19 | | will on file is the decedent's
last will and was signed by the | 20 | | decedent and the attesting witnesses as
required by law and | 21 | | would be admittable to probate. The names and places
of | 22 | | residence of the legatees and the portion of the estate, if | 23 | | any, to
which each legatee is entitled are as follows: |
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24 | | Name, relationship |
Age of |
Portion of |
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25 | | and place of residence |
minor |
Estate |
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| 1 | | (Strike either 10(a) or 10(b)). | 2 | | (c) Affiant is unaware of any dispute or potential conflict | 3 | | as to the
heirship or will of the decedent. | 4 | | 10.1. I, ............(the affiant) state that I am the | 5 | | surviving spouse and the decedent and I resided together as | 6 | | husband and wife and we were not legally separated, or | 7 | | otherwise separated, at the time of decedent's death. | 8 | | 10.2. I, ........... (the affiant) state that my | 9 | | relationship to the decedent is ................. and (check | 10 | | all that apply): | 11 | | ... there is no surviving spouse; or | 12 | | ... there is a surviving spouse, but the surviving spouse is: | 13 | | ... unable to prepare the small estate affidavit for | 14 | | medical reasons as shown by the attached letter of a physician | 15 | | for the surviving spouse, based upon the physician's | 16 | | examination of the surviving spouse within 90 days prior to the | 17 | | date of the affidavit, attesting to and describing this | 18 | | disabling medical condition; or | 19 | | ... has declined, refused, or asked affiant to prepare the | 20 | | small estate affidavit. The reason that the
affiant has | 21 | | prepared this small estate affidavit rather than the surviving | 22 | | spouse is that
(state here the precise time, date, and | 23 | | circumstances of the surviving spouse declining,
refusing, or | 24 | | asking affiant to prepare the small estate affidavit): | 25 | | .......................................................... | 26 | | Attached is a statement of the surviving spouse in which |
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| 1 | | the surviving spouse expressly declines or states that he or | 2 | | she refuses to prepare the small estate affidavit or expressly | 3 | | requests that the affiant prepare the small estate affidavit. | 4 | | This statement must be signed by the surviving spouse, | 5 | | witnessed by 2 persons unrelated to the affiant, and be | 6 | | notarized. | 7 | | 11. The property described in paragraph 6 of this affidavit | 8 | | should be
distributed , after all just debts and expenses | 9 | | described in paragraph 7 are fully paid, as follows:
| 10 | | Name Specific sum or property to be distributed | 11 | | The foregoing statement is made under the penalties of | 12 | | perjury*.
| 13 | | .........................
| 14 | | Signature of Affiant
| 15 | | *(Note: A fraudulent statement made under the penalties of | 16 | | perjury is
perjury, as defined in Section 32-2 of the Criminal | 17 | | Code of 2012.)
| 18 | | (c) Appointment of Agent. If safe deposit access is | 19 | | involved or if sale
of any personal property is desirable to | 20 | | facilitate distribution pursuant
to the small estate | 21 | | affidavit, all persons named in paragraph 11 of the
small | 22 | | estate affidavit (excluding minors and unascertained or | 23 | | disabled
persons) may in writing appoint one or more persons as | 24 | | their agent for that
purpose , provided that the writing | 25 | | contains the signature of each person, is witnessed by 2 |
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| 1 | | persons unrelated to the affiant and is notarized, and also | 2 | | shows the written consent of the surviving spouse and all adult | 3 | | children . The agent shall have power, without court approval, | 4 | | to gain access
to, sell, and distribute the property for the | 5 | | benefit of all persons named
in paragraph 11 of the affidavit; | 6 | | and the payment, delivery, transfer,
access or issuance shall | 7 | | be made or granted to or on the order of the agent.
| 8 | | (d) Release. Upon examination and approval of all documents | 9 | | presented by the affiant with this small estate affidavit, | 10 | | payment, delivery, transfer, access or issuance
pursuant to a | 11 | | properly executed affidavit, the person , or corporation , or | 12 | | financial institution is
released to the same extent as if the | 13 | | payment, delivery, transfer, access
or issuance had been made | 14 | | or granted to the representative of the estate.
Such person , or | 15 | | corporation , or financial institution is not required to see to | 16 | | the application or
disposition of the property; but each person | 17 | | to whom a payment, delivery,
transfer, access or issuance is | 18 | | made or given is answerable therefor to any
person having a | 19 | | prior right and is accountable to any representative of the
| 20 | | estate.
| 21 | | (e) The affiant signing the small estate affidavit prepared | 22 | | pursuant to
subsection (b) of this Section shall indemnify and | 23 | | hold harmless all creditors
and heirs of the decedent and other | 24 | | persons relying upon the affidavit who
incur loss because of | 25 | | such reliance. That indemnification shall only be
up to the | 26 | | amount lost because of the act or omission of the affiant. Any
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| 1 | | person recovering under this subsection (e) shall be entitled | 2 | | to reasonable
attorney's fees and the expenses of recovery.
| 3 | | (f) The affiant of a small estate affidavit who is a | 4 | | non-resident of
Illinois submits himself or herself to the | 5 | | jurisdiction of Illinois courts
for all matters related to the | 6 | | preparation or use of the affidavit. The
affidavit shall | 7 | | provide the name, address, and phone number of a person
whom | 8 | | the affiant names as his agent for service of process. If no | 9 | | such
person is named or if, for any reason, service on the | 10 | | named person cannot
be effectuated, the clerk of the circuit | 11 | | court of the county or judicial
circuit of which the decedent | 12 | | was a resident at the time of his death shall
be the agent for | 13 | | service of process.
| 14 | | (g) Any action properly taken under this Section, as | 15 | | amended by Public Act 93-877, on or after August 6, 2004 (the | 16 | | effective date of Public Act 93-877) is valid regardless of the | 17 | | date of death of the decedent.
| 18 | | (h) The changes made by this amendatory Act of the 96th | 19 | | General Assembly apply to a decedent whose date of death is on | 20 | | or after the effective date of this amendatory Act of the 96th
| 21 | | General Assembly. | 22 | | (Source: P.A. 96-968, eff. 7-2-10; 97-1150, eff. 1-25-13 .)".
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