Full Text of HB3287 99th General Assembly
HB3287ham002 99TH GENERAL ASSEMBLY | Rep. Mary E. Flowers Filed: 3/23/2015
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| 1 | | AMENDMENT TO HOUSE BILL 3287
| 2 | | AMENDMENT NO. ______. Amend House Bill 3287 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, disabled | 11 | | adult, or elderly person, the terms of the account must provide | 12 | | for compliance with orders of the court, if any, regarding the | 13 | | establishment and management of that account. A financial | 14 | | institution has a duty to inquire as to the existence of any | 15 | | court orders when opening a guardianship account on behalf of a | 16 | | minor. If the financial institution holds an account that is |
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| 1 | | subject to a court order, the financial institution must obtain | 2 | | a court order granting the authority to release funds from the | 3 | | account. An order authorizing the disbursement of funds in the | 4 | | account may be granted only upon a showing of good cause. | 5 | | (b) A guardian of a minor, disabled adult, or elderly | 6 | | person that establishes an account with a financial institution | 7 | | on behalf of the minor, disabled adult, or elderly person | 8 | | pursuant to a court order has a duty to present the court order | 9 | | to the financial institution at the time the account is opened. | 10 | | (c) The creation of and any withdrawals from a guardianship | 11 | | account established on behalf of a minor, disabled adult, or | 12 | | elderly person that is subject to this Section requires the | 13 | | signatures of 2 adult persons. | 14 | | (d) A withdrawal of more than $5,000 from a guardianship | 15 | | account established on behalf of a minor, disabled adult, or | 16 | | elderly person that is subject to this Section requires a court | 17 | | order. | 18 | | (e) As used in this Section, "financial institution" | 19 | | includes, but is not limited to, a bank, credit union, | 20 | | investment company, savings bank, savings and loan | 21 | | association, securities dealer, and trust company.
| 22 | | (755 ILCS 5/25-1) (from Ch. 110 1/2, par. 25-1)
| 23 | | Sec. 25-1. Payment or delivery of small estate of decedent | 24 | | upon
affidavit. | 25 | | (a) When any person, corporation, or financial institution |
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| 1 | | (1) indebted to or holding
personal estate of a decedent, (2) | 2 | | controlling the right of access to
decedent's safe deposit box | 3 | | or (3) acting as registrar or transfer agent
of any evidence of | 4 | | interest, indebtedness, property or right is
furnished with a | 5 | | small estate affidavit in substantially the
form hereinafter | 6 | | set forth, that person, corporation, or financial institution , | 7 | | upon examining and approving the documents presented by the | 8 | | affiant which are attached to the small estate affidavit, shall | 9 | | pay the
indebtedness, grant access to the safe deposit box, | 10 | | deliver the personal
estate or transfer or issue the evidence | 11 | | of interest, indebtedness,
property or right to persons and in | 12 | | the manner specified in
the affidavit or to an agent appointed | 13 | | as hereinafter set forth.
| 14 | | (a-5) A person, corporation, or financial institution may | 15 | | not pay the
indebtedness, grant access to the safe deposit box, | 16 | | deliver the personal
estate, or transfer or issue the evidence | 17 | | of interest, indebtedness,
property or right as provided in | 18 | | subsection (a) of this Section, unless the affiant, or his or | 19 | | her agent, has first obtained a court order as provided in this | 20 | | subsection (a-5). A judge shall grant an order under this | 21 | | subsection (a-5) if the affiant presents: (i) the small estate | 22 | | affidavit; (ii) evidence of notice having been given to the | 23 | | heirs or legatees identified in paragraph 10 of the affidavit; | 24 | | and (iii) a petition asking the court to find that the | 25 | | affidavit does not appear to have been fraudulently executed | 26 | | and to grant access to property in the manner specified in |
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| 1 | | paragraph 11 of the affidavit. A person, corporation, or | 2 | | financial institution has a duty to inquire as to the existence | 3 | | of any court orders before taking action under this Section. | 4 | | (b) Small Estate Affidavit
| 5 | | I, (name of affiant) , on oath state:
| 6 | | 1. (a) My post office address is: ;
| 7 | | (b) My residence address is: ; and
| 8 | | (c) I understand that, if I am an out-of-state | 9 | | resident, I submit myself
to the jurisdiction of Illinois | 10 | | courts for all matters related to the preparation
and use of | 11 | | this affidavit. My agent for service of process in Illinois is:
| 12 | | NAME..........................
| 13 | | ADDRESS.......................
| 14 | | CITY..........................
| 15 | | TELEPHONE (IF ANY)............
| 16 | | I understand that if no person is named above as my agent for | 17 | | service or,
if for any reason, service on the named person | 18 | | cannot be effectuated, the
clerk of the circuit court of | 19 | | ......(County) (Judicial Circuit) Illinois
is recognized by | 20 | | Illinois law as my agent for service of process.
| 21 | | 2. The decedent's name is ;
| 22 | | 3. The date of the decedent's death was , and I | 23 | | have
attached a copy of the death certificate hereto.
| 24 | | 4. The decedent's place of residence immediately before his
| 25 | | death was ;
| 26 | | 5. No letters of office are now outstanding on the |
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| 1 | | decedent's estate and
no petition for letters is contemplated | 2 | | or pending in Illinois or in any
other jurisdiction, to my | 3 | | knowledge;
| 4 | | 6. The gross value of the decedent's entire personal | 5 | | estate, including
the value of all property passing to any | 6 | | party either by intestacy or
under a will, does not exceed | 7 | | $100,000. (Here, list each asset, e.g., cash,
stock, and its | 8 | | fair market value.);
| 9 | | 7. (a) All of the decedent's burial and funeral expenses | 10 | | and other debts have been paid,
or | 11 | | (b) All of the decedent's known unpaid debts are listed and | 12 | | classified as follows (include the name, post office address, | 13 | | and amount): | 14 | | Class 1: funeral and burial expenses, which include | 15 | | reasonable amounts paid for a burial space, crypt, or | 16 | | niche; a marker on the burial space; and care of the burial | 17 | | space, crypt, or niche; expenses of administration; and | 18 | | statutory custodial claims as follows: | 19 | | ......................................................... | 20 | | Class 2: the surviving spouse's award or child's award, if | 21 | | applicable, as follows: | 22 | | ......................................................... | 23 | | Class 3: debts due the United States, as follows: | 24 | | ......................................................... | 25 | | Class 4: money due employees of the decedent of not more | 26 | | than $800 for each claimant for services rendered within 4 |
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| 1 | | months prior to the decedent's death and expenses attending | 2 | | the last illness, as follows: | 3 | | ......................................................... | 4 | | Class 5: money and property received or held in trust by | 5 | | the decedent which cannot be identified or traced, as | 6 | | follows: | 7 | | ......................................................... | 8 | | Class 6: debts due the State of Illinois and any county, | 9 | | township, city, town, village, or school district located | 10 | | within Illinois, as follows: | 11 | | ......................................................... | 12 | | Class 7: all other claims, including medical and credit | 13 | | card bills, as follows: | 14 | | ................................ | 15 | | (Strike either 7(a) or 7(b)).
| 16 | | 7.5. I understand that all valid claims against the | 17 | | decedent's estate described in paragraph 7 must be paid by me | 18 | | from the decedent's estate before any distribution is made to | 19 | | any heir or legatee. I further understand that the decedent's | 20 | | estate should pay all claims in the order set forth above, and | 21 | | if the decedent's estate is insufficient to pay the claims in | 22 | | any one class, the claims in that class shall be paid pro rata. | 23 | | 8. There is no known unpaid claimant or contested claim | 24 | | against the
decedent, except as stated in paragraph 7. | 25 | | 9. (a) The names and places of residence of any surviving | 26 | | spouse, minor
children and adult dependent* children of the |
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| 1 | | decedent are as follows: |
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2 | | Name and |
Place of |
Age of |
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3 | | Relationship |
Residence |
minor child |
| 4 | | *(Note: An adult dependent child is one who is unable to | 5 | | maintain himself
and is likely to become a public charge.) | 6 | | (b) The award allowable to the surviving spouse of a | 7 | | decedent who was
an Illinois resident is $..........
($20,000, | 8 | | plus $10,000 multiplied by the number of minor children and | 9 | | adult
dependent children who resided with the surviving spouse | 10 | | at the time of the
decedent's death. If any such child did not | 11 | | reside with the surviving
spouse at the time of the decedent's | 12 | | death, so indicate). | 13 | | (c) If there is no surviving spouse, the award allowable to | 14 | | the minor
children and adult dependent children of a decedent | 15 | | who was an Illinois
resident is $.......... ($20,000, plus | 16 | | $10,000
multiplied by the number of minor children and adult | 17 | | dependent children),
to be divided among them in equal shares. | 18 | | If there is no surviving spouse and there are minor children, a | 19 | | disabled adult, or elderly relatives, the affiant must be a | 20 | | court appointed guardian for one or more of the children, | 21 | | disabled adult, or elderly person. If this provision applies, | 22 | | the date of the court order making this appointment was | 23 | | .........., and I have attached a copy of the court order. | 24 | | 10. (a) The decedent left no will. The names, places of | 25 | | residence and
relationships of the decedent's heirs, and the |
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| 1 | | portion of the estate to
which each heir is entitled under the | 2 | | law , after all just debts and expenses described in paragraph 7 | 3 | | are fully paid, where decedent died intestate
are as follows: |
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4 | | Name, relationship |
Age of |
Portion of |
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5 | | and place of residence |
minor |
Estate |
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6 | | |
OR |
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| 7 | | (b) The decedent left a will, which has been filed with the | 8 | | clerk of
an appropriate court. A certified copy of the will on | 9 | | file is attached.
To the best of my knowledge and belief the | 10 | | will on file is the decedent's
last will and was signed by the | 11 | | decedent and the attesting witnesses as
required by law and | 12 | | would be admittable to probate. The names and places
of | 13 | | residence of the legatees and the portion of the estate, if | 14 | | any, to
which each legatee is entitled are as follows: |
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15 | | Name, relationship |
Age of |
Portion of |
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16 | | and place of residence |
minor |
Estate |
| 17 | | (Strike either 10(a) or 10(b)). | 18 | | (c) Affiant is unaware of any dispute or potential conflict | 19 | | as to the
heirship or will of the decedent. | 20 | | 10.1. I, ............(the affiant) state that I am the | 21 | | surviving spouse and the decedent and I resided together as | 22 | | husband and wife and we were not legally separated, or | 23 | | otherwise separated, at the time of decedent's death. | 24 | | 10.2. I, ........... (the affiant) state that my | 25 | | relationship to the decedent is ................. and (check |
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| 1 | | all that apply): | 2 | | ... there is no surviving spouse; or | 3 | | ... there is a surviving spouse, but the surviving spouse is: | 4 | | ... unable to prepare the small estate affidavit for | 5 | | medical reasons as shown by the attached letter of a physician | 6 | | for the surviving spouse, based upon the physician's | 7 | | examination of the surviving spouse within 90 days prior to the | 8 | | date of the affidavit, attesting to and describing this | 9 | | disabling medical condition; or | 10 | | ... has declined, refused, or asked affiant to prepare the | 11 | | small estate affidavit. The reason that the
affiant has | 12 | | prepared this small estate affidavit rather than the surviving | 13 | | spouse is that
(state here the precise time, date, and | 14 | | circumstances of the surviving spouse declining,
refusing, or | 15 | | asking affiant to prepare the small estate affidavit): | 16 | | .......................................................... | 17 | | Attached is a statement of the surviving spouse in which | 18 | | the surviving spouse expressly declines or states that he or | 19 | | she refuses to prepare the small estate affidavit or expressly | 20 | | requests that the affiant prepare the small estate affidavit. | 21 | | This statement must be signed by the surviving spouse, | 22 | | witnessed by 2 persons unrelated to the affiant, and be | 23 | | notarized. | 24 | | 10.3. My relationship to the decedent or the decedent's | 25 | | estate is as follows: ........................................ | 26 | | 10.5. (The following paragraph should appear in bold type |
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| 1 | | and in not less than 14-point font): | 2 | | I understand that the decedent's estate must be | 3 | | distributed first to satisfy claims against the decedent's | 4 | | estate as set forth in paragraph 7.5 of this affidavit | 5 | | before any distribution is made to any heir or legatee. By | 6 | | signing this affidavit, I agree to indemnify and hold | 7 | | harmless all creditors of the decedent's estate, the | 8 | | decedent's heirs and legatees, and other persons, | 9 | | corporations, or financial institutions relying upon this | 10 | | affidavit who incur any loss because of reliance on this | 11 | | affidavit, up to the amount lost because of any act or | 12 | | omission by me. I further understand that any person, | 13 | | corporation, or financial institution recovering under | 14 | | this indemnification provision shall be entitled to | 15 | | reasonable attorney's fees and the expenses of recovery. | 16 | | 11. After payment by me from the decedent's estate of all | 17 | | debts and expenses listed in paragraph 7, any remaining | 18 | | property described in paragraph 6 of this affidavit should be
| 19 | | distributed as follows: | 20 | | Name Specific sum or property to be distributed | 21 | | The foregoing statement is made under the penalties of | 22 | | perjury*.
| 23 | | .........................
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| 1 | | Signature of Affiant
| 2 | | Signed and sworn before me on (insert date). | 3 | | .........................
| 4 | | Notary Public
| 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 2012.)
| 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, the affiant under the small estate affidavit may in | 12 | | writing appoint one or more persons as the affiant's agent for | 13 | | that
purpose , provided that the writing contains the signature | 14 | | of each person, is witnessed by 2 persons unrelated to the | 15 | | affiant and is notarized, and also shows the written consent of | 16 | | the surviving spouse and all adult children . The agent shall | 17 | | have power, with without court approval, to gain access
to, | 18 | | sell, and distribute the property in the manner specified in | 19 | | paragraphs 7.5 and 11 of the affidavit; and the payment, | 20 | | delivery, transfer,
access or issuance shall be made or granted | 21 | | to or on the order of the agent. The affiant may appoint | 22 | | himself or herself as the designated representative to exercise | 23 | | the powers and perform the duties of an agent described in this | 24 | | subsection (c).
| 25 | | (c-5) The affiant of a small estate affidavit shall submit |
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| 1 | | to the court proof of payment of all valid claims against the | 2 | | decedent's estate described in paragraph 7. | 3 | | (d) Reliance and Release. Any person, corporation, or | 4 | | financial institution who , upon examination and approval of all | 5 | | documents presented by the affiant with this small estate | 6 | | affidavit, acts in good faith reliance on a copy of a document | 7 | | purporting to be a small estate affidavit that is substantially | 8 | | in compliance with subsection (b) of this Section shall be | 9 | | fully protected and released upon payment, delivery, transfer, | 10 | | access or issuance
pursuant to such a document to the same | 11 | | extent as if the payment, delivery, transfer, access
or | 12 | | issuance had been made or granted to the representative of the | 13 | | estate.
Such person, corporation, or financial institution is | 14 | | not required to see to the application or
disposition of the | 15 | | property; but each person to whom a payment, delivery,
| 16 | | transfer, access or issuance is made or given is answerable | 17 | | therefor to any
person having a prior right and is accountable | 18 | | to any representative of the
estate.
| 19 | | (e) Distributions pursuant to an affidavit substantially | 20 | | in the form set forth in subsection (b) of this Section may be | 21 | | made to the affiant, if so specified in paragraph 11, | 22 | | notwithstanding the disclosure of known unpaid debts. The | 23 | | affiant, acting on behalf of the decedent's estate, is | 24 | | obligated to pay all valid claims against the decedent's estate | 25 | | before any distribution is made to any heir or legatee. The | 26 | | affiant signing the small estate affidavit prepared pursuant to
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| 1 | | subsection (b) of this Section shall indemnify and hold | 2 | | harmless all creditors,
heirs, and legatees of the decedent and | 3 | | other persons, corporations, or financial institutions relying | 4 | | upon the affidavit who
incur loss because of such reliance. | 5 | | That indemnification shall only be
up to the amount lost | 6 | | because of the act or omission of the affiant. Any
person, | 7 | | corporation, or financial institution recovering under this | 8 | | subsection (e) shall be entitled to reasonable
attorney's fees | 9 | | and the expenses of recovery.
| 10 | | (f) The affiant of a small estate affidavit who is a | 11 | | non-resident of
Illinois submits himself or herself to the | 12 | | jurisdiction of Illinois courts
for all matters related to the | 13 | | preparation or use of the affidavit. The
affidavit shall | 14 | | provide the name, address, and phone number of a person
whom | 15 | | the affiant names as his agent for service of process. If no | 16 | | such
person is named or if, for any reason, service on the | 17 | | named person cannot
be effectuated, the clerk of the circuit | 18 | | court of the county or judicial
circuit of which the decedent | 19 | | was a resident at the time of his death shall
be the agent for | 20 | | service of process.
| 21 | | (f-5) If the affiant makes distributions from the estate in | 22 | | violation of this Section, an heir or legatee may file with the | 23 | | court an affidavit, under penalty of perjury, alleging the | 24 | | facts which constitute making distributions from the estate in | 25 | | violation of this Section. The affidavit shall be accompanied | 26 | | by any evidence the heir or legatee has to support his or her |
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| 1 | | claim. If the court determines that distributions from the | 2 | | estate have been made in violation of this Section, the court | 3 | | shall enter an order directing all persons or entities which | 4 | | received a distribution under the affidavit to submit any | 5 | | property received to the clerk of the circuit court within 30 | 6 | | days of the order. The court shall then commence proceedings to | 7 | | determine the proper distribution of the estate and enter | 8 | | orders for the distribution of the property in accordance with | 9 | | this Section. | 10 | | (g) Any action properly taken under this Section, as | 11 | | amended by Public Act 93-877, on or after August 6, 2004 (the | 12 | | effective date of Public Act 93-877) is valid regardless of the | 13 | | date of death of the decedent.
| 14 | | (h) The changes made by this amendatory Act of the 96th | 15 | | General Assembly apply to a decedent whose date of death is on | 16 | | or after the effective date of this amendatory Act of the 96th
| 17 | | General Assembly. | 18 | | (i) The changes made by this amendatory Act of the 98th | 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 98th
| 21 | | General Assembly. | 22 | | (Source: P.A. 97-1150, eff. 1-25-13; 98-836, eff. 1-1-15 .)".
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