State of Illinois
90th General Assembly
Legislation

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90_HB1186

      755 ILCS 5/2-2            from Ch. 110 1/2, par. 2-2
      755 ILCS 5/2-4            from Ch. 110 1/2, par. 2-4
      760 ILCS 30/1             from Ch. 40, par. 1652
          Amends the Probate Act. Provides that  an  adopted  child
      who  is  adopted after attaining age 18 and who never resides
      with the adopting parent before attaining that age is a child
      but not a descendant of the adopting parent for  the  purpose
      of  inheriting  from the adopting parent's kindred.  Provides
      that an adopted child is not  a  child  or  descendant  of  a
      natural  parent or a natural parent's kindred for purposes of
      inheritance, unless certain conditions are  met.  Amends  the
      Instruments  Regarding  Adopted Children Act.  Provides that,
      in determining the property rights  of  any  person  under  a
      nontestamentary  instrument,  an adopted child's relationship
      to his or her adopting and natural parents shall be  governed
      by  specified  provisions  of  the  Probate  Act (and deletes
      current language regarding the rights  of  an  adopted  child
      under an instrument).
                                                     LRB9002673WHmg
                                               LRB9002673WHmg
 1        AN ACT in relation to rights and remedies.
 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
 5    changing Sections 2-2 and 2-4 as follows:
 6        (755 ILCS 5/2-2) (from Ch. 110 1/2, par. 2-2)
 7        Sec.   2-2.  Illegitimates.)    The  intestate  real  and
 8    personal estate of a resident decedent who  was  illegitimate
 9    at  the  time  of death and the intestate real estate in this
10    State of a nonresident decedent who was illegitimate  at  the
11    time  of  death, after all just claims against his estate are
12    fully paid, descends and shall be distributed as follows:
13        (a)  If there is a surviving spouse and also a descendant
14    of the decedent:  1/2 of the entire estate to  the  surviving
15    spouse and 1/2 to the decedent's descendants per stirpes.
16        (b)  If  there is no surviving spouse but a descendant of
17    the  decedent:   the  entire   estate   to   the   decedent's
18    descendants per stirpes.
19        (c)  If  there is a surviving spouse but no descendant of
20    the decedent:  the entire estate to the surviving spouse.
21        (d)  If there is no surviving spouse  or  descendant  but
22    the  mother  or  a  descendant of the mother of the decedent:
23    the entire estate to the mother and her descendants, allowing
24    1/2 to the mother and 1/2 to her descendants per stirpes.
25        (e)  If there is no surviving spouse, descendant,  mother
26    or  descendant  of the mother of the decedent, but a maternal
27    grandparent or descendant of a maternal  grandparent  of  the
28    decedent:   the  entire  estate  to  the  decedent's maternal
29    grandparents in equal parts, or to the survivor of  them,  or
30    if there is none surviving, to their descendants per stirpes.
31        (f)  If there is no surviving spouse, descendant, mother,
                            -2-                LRB9002673WHmg
 1    descendant  of the mother, maternal grandparent or descendant
 2    of a maternal grandparent of the decedent:  the entire estate
 3    to the decedent's maternal great-grandparents in equal  parts
 4    or to the survivor of them, or if there is none surviving, to
 5    their descendants per stirpes.
 6        (g)  If there is no surviving spouse, descendant, mother,
 7    descendant of the mother, maternal grandparent, descendant of
 8    a   maternal   grandparent,   maternal  great-grandparent  or
 9    descendant of a maternal great-grandparent of  the  decedent:
10    the  entire  estate  in equal parts to the nearest kindred of
11    the mother of the decedent in equal degree (computing by  the
12    rules of the civil law) and without representation.
13        (h)  If  there  is  no  surviving spouse or mother of the
14    decedent and no known kindred of the mother of the  decedent:
15    the  real  estate  escheats  to  the  county  in  which it is
16    located; the personal estate physically located  within  this
17    State  and  the  personal  estate  physically located or held
18    outside  this  State  which  is  the  subject  of   ancillary
19    administration  within  this  State escheats to the county of
20    which the decedent was a resident or, if the decedent was not
21    a resident of this State,  to  the  county  in  which  it  is
22    located;   all  other  personal  property  of the decedent of
23    every class and character, wherever situate, or the  proceeds
24    thereof,  shall escheat to this State and be delivered to the
25    Director of Financial Institutions of this State pursuant  to
26    the Uniform Disposition of Unclaimed Property Act.
27        An  illegitimate  person is heir of his mother and of any
28    maternal ancestor and of any  person  from  whom  his  mother
29    might  have  inherited,  if living; and the descendants of an
30    illegitimate person shall represent such person and  take  by
31    descent  any  estate  which  the  parent would have taken, if
32    living.  If a  decedent  has  acknowledged  paternity  of  an
33    illegitimate  person  or  if during his lifetime or after his
34    death a decedent has been adjudged to be  the  father  of  an
                            -3-                LRB9002673WHmg
 1    illegitimate person, that person is heir of his father and of
 2    any paternal ancestor and of any person  from whom his father
 3    might  have  inherited,  if living; and the descendants of an
 4    illegitimate person shall represent that person and  take  by
 5    descent  any  estate  which  the  parent would have taken, if
 6    living.  If during his lifetime the decedent was adjudged  to
 7    be  the  father  of  an  illegitimate  person  by  a court of
 8    competent jurisdiction, an authenticated copy of the judgment
 9    is sufficient proof of the paternity; but in all other  cases
10    paternity must be proved by clear and convincing evidence.  A
11    person  who was illegitimate whose parents intermarry and who
12    is acknowledged by  the  father  as  the  father's  child  is
13    legitimate.  After  an  illegitimate  person is adopted, that
14    person's relationship to his  or  her  adopting  and  natural
15    parents  shall  be  governed by Section 2-4 of this Act.  For
16    purposes of inheritance, the changes made by this  amendatory
17    Act  of  1997  apply  to  all  decedents  who die on or after
18    January 1, 1998.  For the purpose of determining the property
19    rights of any person under any instrument, the  changes  made
20    by  this  amendatory  Act  of  1997  apply to all instruments
21    executed on or after January 1, 1998.
22    (Source: P.A. 81-400.)
23        (755 ILCS 5/2-4) (from Ch. 110 1/2, par. 2-4)
24        Sec. 2-4.  Adopted child and adopting parent.
25        (a)  An adopted child is a  descendant  of  the  adopting
26    parent  for  purposes of inheritance from the adopting parent
27    and from the lineal and collateral kindred  of  the  adopting
28    parent and for the purpose of determining the property rights
29    of  any person under any instrument, unless the adopted child
30    is adopted after attaining the age of 18 years and the  child
31    never  resided  with the adopting parent before attaining the
32    age of 18 years, in which case the adopted child is  a  child
33    of  the  adopting  parent  but  is  not  a  descendant of the
                            -4-                LRB9002673WHmg
 1    adopting parent for  the  purposes  of  inheriting  from  the
 2    lineal  or  collateral  kindred  of  the adopting parent.  An
 3    adopted child and the descendants of the child who is related
 4    to a decedent through more  than  one  line  of  relationship
 5    shall be entitled only to the share based on the relationship
 6    which  entitles the child or descendant to the largest share.
 7    The share to which the child or descendant  is  not  entitled
 8    shall  be  distributed  in the same manner as if the child or
 9    descendant never existed. For purposes  of  inheritance,  the
10    changes  made  by  this  amendatory  Act of 1997 apply to all
11    decedents who die on or  after  January  1,  1998.   For  the
12    purpose  of  determining  the  property  rights of any person
13    under any instrument, the changes made by this amendatory Act
14    of 1997 apply to all instruments executed on or after January
15    1, 1998. For such  purposes,  an  adopted  child  also  is  a
16    descendant  of  both natural parents when the adopting parent
17    is the spouse of a natural parent.
18        (b)  An adopting parent and  the  lineal  and  collateral
19    kindred of the adopting parent shall inherit property from an
20    adopted  child to the exclusion of the natural parent and the
21    lineal and collateral kindred of the natural  parent  in  the
22    same  manner as though the adopted child were a natural child
23    of the adopting parent, except that the  natural  parent  and
24    the  lineal or collateral kindred of the natural parent shall
25    take from the child and the child's kindred the property that
26    the child has taken from or through the natural parent or the
27    lineal or collateral kindred of the natural parent  by  gift,
28    by will or under intestate laws.
29        (c)  For  purposes  of inheritance from the child and his
30    or her kindred (1) the person who at the time of the adoption
31    is the spouse of an adopting parent is an adopting parent and
32    (2) a child is adopted when the child has been or is declared
33    by any court to have been adopted or has been or is  declared
34    or assumed to be the adopted child of the testator or grantor
                            -5-                LRB9002673WHmg
 1    in  any  instrument  bequeathing  or  giving  property to the
 2    child.
 3        (d)  For  purposes  of  inheritance  from  or  through  a
 4    natural parent and for determining the property rights of any
 5    person under any instrument, an adopted child is not a  child
 6    of  a  natural  parent,  nor  is  the child a descendant of a
 7    natural parent or of any lineal or collateral  kindred  of  a
 8    natural   parent,   unless  one  or  more  of  the  following
 9    conditions apply:
10             (1)  The child is  adopted  by  a  descendant  or  a
11        spouse  of  a  descendant  of  a great-grandparent of the
12        child, in which case the adopted child is a child of both
13        natural parents.
14             (2)  A natural parent  of  the  adopted  child  died
15        before  the  child was adopted, in which case the adopted
16        child is a child of that deceased parent and an  heir  of
17        the  lineal  and  collateral  kindred  of  that  deceased
18        parent.
19             (3)  The  contrary  intent  is  demonstrated  by the
20        terms of the instrument by clear and convincing evidence.
21        An heir of an  adopted  child  who,  by  reason  of  this
22    subsection  (d),  is  not a child of a natural parent is also
23    not an heir of that  natural  parent  or  of  the  lineal  or
24    collateral  kindred  of that natural parent.  A fiduciary who
25    has actual knowledge that a person has been adopted, but  who
26    has  no  actual knowledge that any of paragraphs (1), (2), or
27    (3) of this subsection apply to the adoption, shall  have  no
28    liability  for  any  action taken or omitted in good faith on
29    the assumption that the person is not a descendant or heir of
30    the natural parent.  The preceding sentence  is  intended  to
31    affect  only  the  liability  of  the fiduciary and shall not
32    affect the property rights of any person.
33        For purposes of inheritance, the  changes  made  by  this
34    amendatory  Act  of 1997 apply to all decedents who die on or
                            -6-                LRB9002673WHmg
 1    after January 1, 1998.  For the purpose  of  determining  the
 2    property  rights  of  any  person  under  any instrument, the
 3    changes made by this amendatory Act  of  1997  apply  to  all
 4    instruments  executed  on  or  after  January  1, 1998. If an
 5    adopted child is related by blood to the adopting parent, the
 6    adopted child and his or her descendants shall take  property
 7    from  the  estate  of  the adopting parent only as an adopted
 8    child or descendants of an adopted child and not as relatives
 9    by blood.  For the purpose of determining the property rights
10    of any person under any instrument  executed  before,  on  or
11    after  September 1, 1989, an adopted child is a descendant of
12    both natural parents when the adopting parent is  the  spouse
13    of   a   natural   parent,  unless  the  contrary  intent  is
14    demonstrated by the terms of  the  instrument  by  clear  and
15    convincing evidence.
16        (e)  For  the  purpose of determining the property rights
17    of any person under  any  instrument  executed  on  or  after
18    September 1, 1955, an adopted child is deemed a child born to
19    the   adopting   parent   unless   the   contrary  intent  is
20    demonstrated by the terms of  the  instrument  by  clear  and
21    convincing evidence.
22        (f)  After  September  30,  1989,  a child adopted at any
23    time before or after that date is deemed a child born to  the
24    adopting  parent  for the purpose of determining the property
25    rights of any person under  any  instrument  executed  before
26    September  1,  1955,  unless  one  or  more  of the following
27    conditions applies:
28             (1)  The   intent   to   exclude   such   child   is
29        demonstrated by the terms of the instrument by clear  and
30        convincing evidence.
31             (2)  An  adopting parent of an adopted child, in the
32        belief that the adopted child  would  not  take  property
33        under  an  instrument  executed before September 1, 1955,
34        acted to substantially benefit such  adopted  child  when
                            -7-                LRB9002673WHmg
 1        compared  to the benefits conferred by such parent on the
 2        child or children  born  to  the  adopting  parent.   For
 3        purposes of this paragraph:
 4                  (i)  "Acted"  means  that  the  adopting parent
 5             made one or more gifts  during  life  requiring  the
 6             filing  of  a  federal  gift  tax return or at death
 7             (including gifts which take  effect  at  death),  or
 8             exercised   or   failed   to   exercise   powers  of
 9             appointment or  other  legal  rights,  or  acted  or
10             failed to act in any other way.
11                  (ii)  Any  action  which substantially benefits
12             the adopted child shall be  presumed  to  have  been
13             made  in  such  a belief unless a contrary intent is
14             demonstrated by clear and convincing evidence.
15        (g)  No fiduciary or other person shall be liable to  any
16    other  person  for any action taken or benefit received prior
17    to October 1, 1989,  under  any  instrument  executed  before
18    September   1,   1955,   that  was  based  on  a  good  faith
19    interpretation of Illinois law regarding the right of adopted
20    children to take property under such an instrument.
21        (h)  No fiduciary under any  instrument  executed  before
22    September  1,  1955,  shall  have any obligation to determine
23    whether any adopted child  has  become  a  taker  under  such
24    instrument  due  to  the application of subsection (f) unless
25    such fiduciary has received, on or before the "notice  date",
26    as  defined  herein, written evidence that such adopted child
27    has become a taker of property.  A fiduciary who has received
28    such written evidence shall determine in good  faith  whether
29    or  not  any  of  the  conditions specified in subsection (f)
30    exists but shall have no obligation to inquire  further  into
31    whether such adopted child is a taker of property pursuant to
32    such subsection.  Such written evidence shall include a sworn
33    statement  by  the  adopted  child  or  his  or her parent or
34    guardian that such child is adopted and to the  best  of  the
                            -8-                LRB9002673WHmg
 1    knowledge  and belief of such adopted child or such parent or
 2    guardian, none of the conditions specified in such subsection
 3    exists.  The "notice date" shall be the later of February  1,
 4    1990,  or  the  expiration of 90 days after the date on which
 5    the adopted child becomes a taker of property pursuant to the
 6    terms of any instrument executed before September 1, 1955.
 7        (i)  A fiduciary shall advise all persons known to him or
 8    her to be subject to these provisions of the existence of the
 9    right to  commence  a  judicial  proceeding  to  prevent  the
10    adopted  child  from  being  a  taker  of  property under the
11    instrument.
12    (Source: P.A. 86-606; 86-842; 86-1028.)
13        Section 10.  The Instruments Regarding  Adopted  Children
14    Act is amended by changing Section 1 as follows:
15        (760 ILCS 30/1) (from Ch. 40, par. 1652)
16        Sec.   1.  Property   rights.  (a)  For  the  purpose  of
17    determining the property  rights  of  any  person  under  any
18    nontestamentary  instrument,  an adopted child's relationship
19    to his or her adopting and natural parents shall be  governed
20    by Section 2-4 of the Probate Act of 1975. For the purpose of
21    determining  the  property  rights  of  any  person under any
22    nontestamentary  instrument,  the  changes   made   by   this
23    amendatory   Act   of   1997  apply  to  all  nontestamentary
24    instruments executed on or after January 1, 1998. executed on
25    or after September 1, 1955, an  adopted  child  is  deemed  a
26    child  born to the adopting parent unless the contrary intent
27    is demonstrated by the terms of the instrument by  clear  and
28    convincing evidence.
29        (b)  After  September  30,  1989,  a child adopted at any
30    time before or after that date is deemed a child born to  the
31    adopting  parent  for the purpose of determining the property
32    rights of any person under  any  instrument  executed  before
                            -9-                LRB9002673WHmg
 1    September  1,  1955,  unless  one  or  more  of the following
 2    conditions applies:
 3        (1)  The intent to exclude such child is demonstrated  by
 4    the terms of the instrument by clear and convincing evidence.
 5        (2)  An  adopting  parent  of  an  adopted  child, in the
 6    belief that the adopted child would not take  property  under
 7    an  instrument  executed  before  September 1, 1955, acted to
 8    substantially benefit such adopted child when compared to the
 9    benefits conferred by such parent on the  child  or  children
10    born to the adopting parent.  For purposes of this paragraph:
11        (i)  "Acted"  means  that the adopting parent made one or
12    more gifts during life requiring the filing of a federal gift
13    tax return or at death (including gifts which take effect  at
14    death),   or  exercised  or  failed  to  exercise  powers  of
15    appointment or other legal rights, or acted or failed to  act
16    in any other way.
17        (ii)  Any action which substantially benefits the adopted
18    child  shall  be  presumed to have been made in such a belief
19    unless  a  contrary  intent  is  demonstrated  by  clear  and
20    convincing evidence.
21        (c)  No fiduciary or other person shall be liable to  any
22    other  person  for any action taken or benefit received prior
23    to October 1, 1989,  under  any  instrument  executed  before
24    September   1,   1955,   that  was  based  on  a  good  faith
25    interpretation  of  Illinois  law  regarding  the  rights  of
26    adopted children to take property under such an instrument.
27        (d)  No fiduciary under any  instrument  executed  before
28    September  1,  1955,  shall  have any obligation to determine
29    whether any adopted child  has  become  a  taker  under  such
30    instrument  due  to  the application of subsection (b) unless
31    such fiduciary has received, on or before the  "notice  date"
32    (as defined herein), written evidence that such adopted child
33    has become a taker of property.  A fiduciary who has received
34    such  written  evidence shall determine in good faith whether
                            -10-               LRB9002673WHmg
 1    or not any of the  conditions  specified  in  subsection  (b)
 2    exists  but  shall have no obligation to inquire further into
 3    whether such adopted child is a taker of property pursuant to
 4    such subsection.  Such written evidence shall include a sworn
 5    statement by the adopted  child  or  his  or  her  parent  or
 6    guardian  that  such  child is adopted and to the best of the
 7    knowledge and belief of such adopted child or such parent  or
 8    guardian, none of the conditions specified in such subsection
 9    exists.   The "notice date" shall be the later of February 1,
10    1990, or the expiration of 90 days after the  date  on  which
11    the adopted child becomes a taker of property pursuant to the
12    terms of any instrument executed before September 1, 1955.
13        (e)  A fiduciary shall advise all persons known to him or
14    her to be subject to these provisions of the existence of the
15    right  to  commence  a  judicial  proceeding  to  prevent the
16    adopted child from  being  a  taker  of  property  under  the
17    instrument.
18    (Source: P.A. 86-842.)

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