HB0745ham003 99TH GENERAL ASSEMBLY

Rep. Emanuel Chris Welch

Filed: 4/20/2015

09900HB0745ham003 LRB099 04556 AWJ 33998 a

AMENDMENT TO HOUSE BILL 745

AMENDMENT NO. ______. Amend House Bill 745 by replacing everything after the enacting clause with the following:

"Section 5. The Counties Code is amended by adding Section 3-5048 as follows:

(55 ILCS 5/3-5048 new)

Sec. 3-5048. Will repository.

(a) As used in this Section:

"Depositor" means an attorney licensed or formerly licensed to practice in the State of Illinois, the attorney's representative, the guardian for the attorney, the personal representative of the attorney's decedent's estate, or the testator.

"Depositor affidavit" means an affidavit signed by a non-testator in which the depositor affirms he or she is authorized to submit a registration form and will for scanning on behalf of the testator.

"Testator" means a person who executed a will, other than as a witness or official to whom acknowledgment of signing was given.

"Will" refers to an original:

(1) will;

(2) codicil;

(3) will and one or more codicils;

(4) trust;

(5) trust and one or more trust amendments; or

(6) any other attachments, addendums, or other related documents to items (1) through (5).

(b) If a county recorder's office maintains a computer system with the capability of scanning and securely storing electronic image files and corresponding index information, the county recorder may implement a county will repository pursuant to this Section to privately store electronic copies of wills. If a county recorder implements a will repository, they shall create a registration form to be signed by the testator which:

(1) states the testator's full first, middle, and last name and all previous names by which the testator may have been known;

(2) states the testator's date of birth and last four digits of the testator's Social Security number;

(3) states the testator's current address;

(4) affirms that the document being presented to the county recorder is the testator's will;

(5) lists the full names of up to 10 individuals to whom the county recorder is authorized to deliver the will upon the death of the testator and a space to indicate if there are additional names attached. The county recorder shall prepare a form addendum for attachment to the registration form for the testator to list additional full names in addition to the 10 individuals listed on the registration form. The addendum shall contain a disclaimer that only individuals listed on the registration form or addendum are eligible to retrieve a copy of the will without a court order;

(6) has a section reserved for county recorder office staff where the employee accepting the document will write the name of the testator, name of the depositor, date of deposit, confirmation that photo identification was inspected, and a space to indicate the employee name or identification number;

(7) has a blank 3 inch by 5 inch section in the upper right corner of the front side to affix a unique document number, date and time of deposit, and amount of recording fee; and

(8) has the option to include the location of the original signed copy of the will.

(c) If a county has created a will repository, a depositor may present a will for scanning into the will repository if he or she presents a signed and completed registration form as described in subsection (b). If a depositor is not the testator, the county recorder may require proof of authority to register the will for scanning including requiring a depositor affidavit to be completed. A will shall only be accepted for scanning if it is the original signed will.

(d) The county recorder shall collect a fee of $25 for each scanning of a will of up to 10 pages and may charge an additional $1 for each page above 10 pages. The registration form and depositor affidavit, if any, shall not be counted when determining the page count for determining fees. The county recorder shall not collect a separate fee for additional documents concurrently deposited in relation to a single testator or for a single joint will prepared for a husband and wife. Fees collected under this subsection shall be deposited into the recorder's document storage fund as set up by the county treasurer pursuant to Section 3-5018 of the Counties Code.

(e) Upon receipt of a will under this Section, the county recorder shall:

(1) provide the depositor with a receipt for the registration form and will listing the date and time of filing and the unique document number assigned to the documents;

(2) scan in, electronically store, and electronically affix a unique document number, date and time of deposit, and amount of recording fee in the upper right corner of the registration form;

(3) scan in and electronically store a copy of the depositor affidavit and will including electronically affixing the unique document number and date of recording on each page of the will;

(4) return the original signed registration form, depositor affidavit, and will to the depositor after scanning in and electronically storing the registration form, depositor affidavit, and will pursuant to items (2) and (3) of this subsection;

(5) index the will alphabetically by the name of the testator, by the previous names by which the testator may have been known, by the date of registration of the will, by the names of persons on the registration form or addendum who are eligible to retrieve a copy, and by the unique document number; and

(6) upon request and payment of the recorder's non-certified copy charge, provide to the testator a non-certified copy of the registration form, depositor affidavit, and will with the electronically affixed unique document number with a maximum fee of $1 per page.

(f) A registration form, depositor affidavit, and will scanned or executed under this Section are not public records. The indexes created under item (5) of subsection (e) are not public records.

(g) During the testator's lifetime, the county recorder shall:

(1) keep the electronic images of the registration form, depositor affidavit, and will in a secure database not available to the public with access limited to recorder office staff necessary for the operation of the repository; and

(2) deliver a certified copy upon request to:

(i) the testator;

(ii) a person authorized by the testator, in a writing other than the registration form or addendum, to receive a copy of the will; or

(iii) a person, entity, court, or government agency authorized to receive a certified copy pursuant to an order entered by a court of competent jurisdiction.

(h) If the county recorder has custody of a scanned copy of the will after the death of the testator and is notified of the death of the testator by a person to whom the recorder is authorized to deliver a copy of the will in the registration form by presenting a certified copy of the testator's death certificate or by a certified copy of an order of court determining the testator to be deceased, upon receipt of payment of the recorder's fee for certified copies, the county recorder shall promptly deliver a certified copy to the person or clerk of the circuit court of the county in which the probate of the testator's will may occur as determined under Section 5-1 of the Probate Act of 1975. Copies of the registration form or depositor affidavit shall not be provided to any retriever unless so ordered by a court.

(i) Upon inquiry by a person or entity identified in paragraph (2) of subsection (g) or upon inquiry of any person presenting a certified copy of an order of a court requesting documents scanned under this Section, the county recorder shall inform the person whether the name of the relevant testator appears in the county recorder's index of the will repository. If an inquiry is made for a testator that is not found in the database, or if the inquiry is made by someone not listed as eligible to retrieve a copy, the recorder's office staff may not confirm or deny the existence of documents held under this Section.

(j) The county recorder may destroy the scanned copy of the registration form, depositor affidavit, and will scanned under this Section if:

(1) the county recorder has not received notice of the death of the testator; and

(2) at least 100 years have passed since the date the will was scanned into the repository.

(k) The county recorder may use fees generated under this Section for the operational expenses of the will repository and for advertising the will repository.

(l) If a testator desires to remove a will from the will repository, or to replace a will, he or she must fill out a removal affidavit proscribed by the recorder's office that affirms his or her desire to remove the will and provide satisfactory identification to confirm he or she is the testator. If the request is to replace a will with a new will, the scanned copy of the will must first be removed using a removal affidavit and the testator or depositor must submit a new registration form and will following the repository guidelines as described in this Section and pay the required fees. There shall be no fee for removing a will scanned under this Section.

(m) Recorder office staff may refuse, without liability, to store a copy of a will if the will presented for scanning is illegible, unable to be imaged, if margins are too small for the unique document number or date to appear on each page, or the will appears to not be an original signed document. Wills to be scanned under this Section must be submitted in person and may not be submitted by electronic means. Recorder office staff may not be held liable, either in their personal or official capacities, for any error or omission in the performance of duties related to this Section except for willful or wanton misconduct.

(n) Recorder office staff may request to inspect and copy any identification documents deemed necessary to prove the identity of anyone seeking to register or retrieve a copy of a document under this Section and may refuse service until satisfactory determination of identity is made.

(o) Registration forms, depositor affidavits, and wills scanned under this Section are exempt from State and county fees related to the Rental Housing Support Program Act.

(p) Documents obtained by the county recorder under this Section are not public records and are exempt from disclosure under the Freedom of Information Act.".