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90_HB1619enr
755 ILCS 5/1-11 from Ch. 110 1/2, par. 1-11
755 ILCS 5/9-1 from Ch. 110 1/2, par. 9-1
755 ILCS 5/9-3 from Ch. 110 1/2, par. 9-3
755 ILCS 5/11-3 from Ch. 110 1/2, par. 11-3
755 ILCS 5/11-5 from Ch. 110 1/2, par. 11-5
755 ILCS 5/11a-5 from Ch. 110 1/2, par. 11a-5
755 ILCS 5/23-2 from Ch. 110 1/2, par. 23-2
Amends the Probate Act of 1975. Provides that a person
who is a resident of the United States (instead of this
State) is qualified to act as administrator. Adds the
qualification that the court must find the person capable of
providing an active and suitable program of guardianship for
a minor in order to be a guardian. Removes the requirement
that the guardian be a resident of this State. Removes the
provision that provides that if the minor resides out of the
State, the court may appoint the guardian without nomination.
Provides that the court may remove a representative if the
representative (instead of executor) becomes a nonresident of
the United States. Removes the provision that allows the
court to remove a representative if the administrator,
administrator to collect, guardian of the estate, or
temporary guardian becomes a nonresident of this State.
Makes technical changes. Effective immediately.
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1 AN ACT concerning rights and remedies, amending named
2 Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Probate Act of 1975 is amended by
6 changing Sections 1-11, 9-1, 9-3, 11-3, 11-5, 11a-5, and 23-2
7 as follows:
8 (755 ILCS 5/1-11) (from Ch. 110 1/2, par. 1-11)
9 Sec. 1-11. Nonresident representative. If a
10 representative is or becomes a nonresident of this State, the
11 representative he shall file in the court in which the estate
12 is pending a designation of a resident agent to accept
13 service of process, notice or demand required or permitted by
14 law to be served upon the representative. If the
15 representative he fails to do so, the clerk of the court is
16 constituted as agent of the representative upon whom the
17 process, notice or demand may be served. If service is made
18 upon the clerk of the court, the clerk of the court he shall
19 mail a copy of the process, notice or demand to the
20 representative at the representative's his last known post
21 office address and to the representative's his attorney of
22 record.
23 (Source: P.A. 85-692.)
24 (755 ILCS 5/9-1) (from Ch. 110 1/2, par. 9-1)
25 Sec. 9-1. Who may act as administrator.) A person who
26 has attained the age of 18 years, and is a resident of the
27 United States this State, is not of unsound mind, is not an
28 adjudged disabled person as defined in this Act and has not
29 been convicted of a felony, is qualified to act as
30 administrator.
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1 (Source: P.A. 85-692.)
2 (755 ILCS 5/9-3) (from Ch. 110 1/2, par. 9-3)
3 Sec. 9-3. Persons entitled to preference in obtaining
4 letters.) The following persons are entitled to preference in
5 the following order in obtaining the issuance of letters of
6 administration and of administration with the will annexed:
7 (a) The surviving spouse or any person nominated by the
8 surviving spouse him.
9 (b) The legatees or any person nominated by them, with
10 preference to legatees who are children.
11 (c) The children or any person nominated by them.
12 (d) The grandchildren or any person nominated by them.
13 (e) The parents or any person nominated by them.
14 (f) The brothers and sisters or any person nominated by
15 them.
16 (g) The nearest kindred or any person nominated by them.
17 (h) The representative of the estate of a deceased ward.
18 (i) The Public Administrator.
19 (j) A creditor of the estate.
20 Only a person qualified to act as administrator under
21 this Act may nominate, except that a person who is not
22 qualified to act as administrator solely because of
23 non-residence in this State may nominate in accordance with
24 the order of preference set forth in this Section if he is a
25 resident of the United States. A person who has been removed
26 as representative under this Act loses his or her right to
27 name his or her successor.
28 When several persons are claiming and are equally
29 entitled to administer or to nominate an administrator, the
30 court may grant letters to one or more of them or to the
31 nominee of one or more of them.
32 (Source: P.A. 85-692.)
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1 (755 ILCS 5/11-3) (from Ch. 110 1/2, par. 11-3)
2 (Text of Section before amendment by P.A. 89-507)
3 Sec. 11-3. Who may act as guardian.) (a) A person who
4 has attained the age of 18 years, and is a resident of the
5 United States, is not of unsound mind, is not an adjudged
6 disabled person as defined in this Act, and has not been
7 convicted of a felony, and who the court finds is capable of
8 providing an active and suitable program of guardianship for
9 the minor is qualified to act as guardian of the person and,
10 if he is a resident of this State, as guardian of the estate.
11 One person may be appointed guardian of the person and
12 another person appointed guardian of the estate.
13 (b) The Department of Mental Health and Developmental
14 Disabilities or the Department of Children and Family
15 Services may with the approval of the court designate one of
16 its employees to serve without fees as guardian of the estate
17 of a minor patient in a State mental hospital or a resident
18 in a State institution when the value of the personal estate
19 does not exceed $1,000.
20 (Source: P.A. 85-692.)
21 (Text of Section after amendment by P.A. 89-507)
22 Sec. 11-3. Who may act as guardian.)
23 (a) A person who has attained the age of 18 years, and
24 is a resident of the United States, is not of unsound mind,
25 is not an adjudged disabled person as defined in this Act,
26 and has not been convicted of a felony, and who the court
27 finds is capable of providing an active and suitable program
28 of guardianship for the minor is qualified to act as guardian
29 of the person and, if he is a resident of this State, as
30 guardian of the estate. One person may be appointed guardian
31 of the person and another person appointed guardian of the
32 estate.
33 (b) The Department of Human Services or the Department
34 of Children and Family Services may with the approval of the
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1 court designate one of its employees to serve without fees as
2 guardian of the estate of a minor patient in a State mental
3 hospital or a resident in a State institution when the value
4 of the personal estate does not exceed $1,000.
5 (Source: P.A. 89-507, eff. 7-1-97.)
6 (755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)
7 Sec. 11-5. Appointment of guardian.
8 (a) Upon the filing of a petition for the appointment of
9 a guardian or on its own motion, the court may appoint a
10 guardian of the person or estate, or both, of a minor as the
11 court finds to be in the best interest of the minor.
12 (a-1) A parent, adoptive parent or adjudicated parent,
13 whose parental rights have not been terminated, may designate
14 in any writing, including a will, a person qualified to act
15 under Section 11-3 to be appointed as guardian of the person
16 or estate, or both, of an unmarried minor or of a child
17 likely to be born. A parent, adoptive parent or adjudicated
18 parent, whose parental rights have not been terminated, or a
19 guardian or a standby guardian of an unmarried minor or of a
20 child likely to be born may designate in any writing,
21 including a will, a person qualified to act under Section
22 11-3 to be appointed as successor guardian of the minor's
23 person or estate, or both. The designation must be witnessed
24 by 2 or more credible witnesses at least 18 years of age,
25 neither of whom is the person designated as the guardian.
26 The designation may be proved by any competent evidence. If
27 the designation is executed and attested in the same manner
28 as a will, it shall have prima facie validity. The
29 designation of a guardian or successor guardian does not
30 affect the rights of the other parent in the minor.
31 (b) The court lacks jurisdiction to proceed on a
32 petition for the appointment of a guardian of a minor if (i)
33 the minor has a living parent, adoptive parent or adjudicated
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1 parent, whose parental rights have not been terminated, whose
2 whereabouts are known, and who is willing and able to make
3 and carry out day-to-day child care decisions concerning the
4 minor, unless the parent or parents consent to the
5 appointment or, after receiving notice of the hearing under
6 Section 11-10.1, fail to object to the appointment at the
7 hearing on the petition or (ii) there is a guardian for the
8 minor appointed by a court of competent jurisdiction. There
9 shall be a rebuttable presumption that a parent of a minor is
10 willing and able to make and carry out day-to-day child care
11 decisions concerning the minor, but the presumption may be
12 rebutted by a preponderance of the evidence.
13 (b-1) If the court finds the appointment of a guardian
14 of the minor to be in the best interest of the minor, and if
15 a standby guardian has previously been appointed for the
16 minor under Section 11-5.3, the court shall appoint the
17 standby guardian as the guardian of the person or estate, or
18 both, of the minor unless the court finds, upon good cause
19 shown, that the appointment would no longer be in the best
20 interest of the minor.
21 (c) If the minor is 14 years of age or more, the minor
22 may nominate the guardian of the minor's person and estate,
23 subject to approval of the court. If the minor's nominee is
24 not approved by the court, or if the minor resides out of the
25 State, or if, after notice to the minor, the minor fails to
26 nominate a guardian of the minor's person or estate, the
27 court may appoint the guardian without nomination.
28 (d) The court shall not appoint as guardian of the
29 person of the minor any person whom the court has determined
30 had caused or substantially contributed to the minor becoming
31 a neglected or abused minor as defined in the Juvenile Court
32 Act of 1987 unless 2 years have elapsed since the last proven
33 incident of abuse or neglect and the court determines that
34 appointment of such person as guardian is in the best
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1 interests of the minor.
2 (e) Previous statements made by the minor relating to
3 any allegations that the minor is an abused or neglected
4 child within the meaning of the Abused and Neglected Child
5 Reporting Act, or an abused or neglected minor within the
6 meaning of the Juvenile Court Act of 1987, shall be
7 admissible in evidence in a hearing concerning appointment of
8 a guardian of the person or estate of the minor. No such
9 statement, however, if uncorroborated and not subject to
10 cross-examination, shall be sufficient in itself to support a
11 finding of abuse or neglect.
12 (Source: P.A. 87-1081; 88-529.)
13 (755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)
14 Sec. 11a-5. Who may act as guardian.) (a) A person who
15 has attained the age of 18 years, is a resident of the United
16 States, is not of unsound mind, is not an adjudged disabled
17 person as defined in this Act, and has not been convicted of
18 a felony, and who the court finds is capable of providing an
19 active and suitable program of guardianship for the disabled
20 person is qualified to act as guardian of the person and as,
21 if he is a resident of this State, guardian of the estate of
22 a disabled person.
23 (b) Any public agency, or not-for-profit corporation
24 found capable by the court of providing an active and
25 suitable program of guardianship for the disabled person,
26 taking into consideration the nature of such person's
27 disability and the nature of such organization's services,
28 may be appointed guardian of the person or of the estate, or
29 both, of the disabled person, or both. The court shall not
30 appoint as guardian an agency which is directly providing
31 residential services to the ward. One person or agency may
32 be appointed guardian of the person and another person or
33 agency appointed guardian of the estate.
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1 (c) Any corporation qualified to accept and execute
2 trusts in this State may be appointed guardian of the estate
3 of a disabled person.
4 (Source: P.A. 85-692.)
5 (755 ILCS 5/23-2) (from Ch. 110 1/2, par. 23-2)
6 Sec. 23-2. Removal.) (a) On petition of any interested
7 person or on the court's own motion, the court may remove a
8 representative for any of the following causes. If the
9 representative:
10 (1) is acting under letters secured by false pretenses;
11 (2) is adjudged a person subject to involuntary
12 admission under the Mental Health and Developmental
13 Disabilities Code or is adjudged a disabled person;
14 (3) is convicted of a felony;
15 (4) wastes or mismanages the estate;
16 (5) conducts himself or herself in such a manner as to
17 endanger any his co-representative or the surety on the
18 representative's his bond;
19 (6) fails to give sufficient bond or security, counter
20 security or a new bond, after being ordered by the court to
21 do so;
22 (7) fails to file an inventory or accounting after being
23 ordered by the court to do so;
24 (8) conceals himself or herself so that process cannot
25 be served upon the representative him or notice cannot be
26 given to the representative him;
27 (9) becomes incapable of or unsuitable for the discharge
28 of the representative's his duties; or
29 (10) there is other good cause.
30 (b) If the representative executor becomes a nonresident
31 of the United States or the administrator, administrator to
32 collect, guardian of the estate or temporary guardian becomes
33 a nonresident of this State, the court may remove the
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1 representative him as such representative.
2 (Source: P.A. 81-795.)
3 Section 10. The Statute Concerning Perpetuities is
4 amended by changing Sections 3 and 4 as follows:
5 (765 ILCS 305/3) (from Ch. 30, par. 193)
6 Sec. 3. Definitions and Terms.
7 As used in this Act unless the context otherwise
8 requires:
9 (a) "Trust" means any trust created by any written
10 instrument, including, without limitation, a trust created in
11 the exercise of a power of appointment.
12 (a-5) "Qualified perpetual trust" means any trust:
13 (i) to which, by the specific terms governing the
14 trust, the rule against perpetuities does not apply; and
15 (ii) of which the trustee (or other person to whom
16 the power is properly granted or delegated) has the power
17 in the trust document or under any provision of law to
18 sell, lease, or mortgage property for any period of time
19 beyond the period of the rule against perpetuities.
20 (b) "Trustee" includes the original trustee of any trust
21 and also any succeeding or added trustee.
22 (c) "Instrument" means any writing pursuant to which any
23 legal or equitable interest in property or in the income
24 therefrom is affected, disposed of or created.
25 (d) "Beneficiary" includes any person to whom any
26 interest, whether vested or contingent, is given by an
27 instrument.
28 (e) Any reference in this Act to income to be "paid" or
29 to income "payments" or to "receiving" income includes income
30 payable or distributable to or applicable for the benefit of
31 a beneficiary.
32 (f) Words importing the masculine gender include the
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1 feminine and neuter, and words importing the singular number
2 include the plural and words importing the plural number
3 include the singular.
4 (Source: P.A. 76-1428.)
5 (765 ILCS 305/4) (from Ch. 30, par. 194)
6 Sec. 4. Application of the Rule Against Perpetuities.
7 (a) The rule against perpetuities shall not apply:
8 (1) to any disposition of property or interest therein
9 which, at the effective date of this Act, does not violate,
10 or is exempted by statute from the operation of, the common
11 law rule against perpetuities;
12 (2) to powers of a trustee to sell, lease or mortgage
13 property or to powers which relate to the administration or
14 management of trust assets, including, without limitation,
15 discretionary powers of a trustee to determine what receipts
16 constitute principal and what receipts constitute income and
17 powers to appoint a successor trustee;
18 (3) to mandatory powers of a trustee to distribute
19 income, or to discretionary powers of a trustee to distribute
20 principal prior to termination of a trust, to a beneficiary
21 having an interest in the principal which is irrevocably
22 vested in quality and quantity;
23 (4) to discretionary powers of a trustee to allocate
24 income and principal among beneficiaries, but no exercise of
25 any such power after the expiration of the period of the rule
26 against perpetuities is valid;
27 (5) to leases to commence in the future or upon the
28 happening of a future event, but no such lease shall be valid
29 unless the term thereof actually commences in possession
30 within 40 years from the date of execution of the lease;
31 (6) to commitments (A) by a lessor to enter into a lease
32 with a subtenant or with the holder of a leasehold mortgage
33 or (B) by a lessee or sublessee to enter into a lease with
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1 the holder of a mortgage; nor
2 (7) to options in gross or to preemptive rights in the
3 nature of a right of first refusal, but no option in gross
4 shall be valid for more than 40 years from the date of its
5 creation; or
6 (8) to qualified perpetual trusts created by will or
7 inter-vivos agreement executed or amended on or after January
8 1, 1998, or to qualified perpetual trusts created by exercise
9 of a power of appointment granted under instruments executed
10 or amended on or after January 1, 1998.
11 (b) The period of the rule against perpetuities shall
12 not commence to run in connection with any disposition of
13 property or interest therein, and no instrument shall be
14 regarded as becoming effective for purposes of the rule
15 against perpetuities, and no interest or power shall be
16 deemed to be created for purposes of the rule against
17 perpetuities as long as, by the terms of the instrument, the
18 maker of the instrument has the power to revoke the
19 instrument or to transfer or direct to be transferred to
20 himself the entire legal and equitable ownership of the
21 property or interest therein.
22 (c) In determining whether an interest violates the rule
23 against perpetuities:
24 (1) it shall be presumed (A) that the interest was
25 intended to be valid, (B) in the case of an interest
26 conditioned upon the probate of a will, the appointment of an
27 executor, administrator or trustee, the completion of the
28 administration of an estate, the payment of debts, the sale
29 or distribution of property, the determination of federal or
30 state tax liabilities or the happening of any administrative
31 contingency, that the contingency must occur, if at all,
32 within the period of the rule against perpetuities, and (C)
33 where the instrument creates an interest in the "widow",
34 "widower", or "spouse" of another person, that the maker of
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1 the instrument intended to refer to a person who was living
2 at the date that the period of the rule against perpetuities
3 commences to run;
4 (2) where any interest, but for this subparagraph (c)
5 (2), would be invalid because it is made to depend upon any
6 person attaining or failing to attain an age in excess of 21
7 years, the age specified shall be reduced to 21 years as to
8 every person to whom the age contingency applies;
9 (3) if, notwithstanding the provisions of subparagraphs
10 (c) (1) and (2) of this Section, the validity of any interest
11 depends upon the possibility of the birth or adoption of a
12 child, (A) no person shall be deemed capable of having a
13 child until he has attained the age of 13 years, (B) any
14 person who has attained the age of 65 years shall be deemed
15 incapable of having a child, (C) evidence shall be admissible
16 as to the incapacity of having a child by a living person who
17 has not attained the age of 65 years, and (D) the possibility
18 of having a child or more remote descendant by adoption shall
19 be disregarded.
20 (d) Subparagraphs (a) (2), (3) and (6) and paragraph (b)
21 of this Section shall be deemed to be declaratory of the law
22 prevailing in this State at the effective date of this Act.
23 (Source: P.A. 76-1428.)
24 Section 15. The Trust Accumulation Act is amended by
25 changing Section 1 as follows:
26 (765 ILCS 315/1) (from Ch. 30, par. 153)
27 Sec. 1. No person shall, after this Act goes into effect,
28 by any deed, will, agreement or otherwise, settle or dispose
29 of any real or personal property, so and in such manner,
30 either expressly or by implication, that the income thereof
31 shall be wholly or partially accumulated for any longer term
32 after the effective date of such settlement or disposition
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1 than a life or lives in being at that date and 21 years
2 beyond; and in every case where any accumulation shall be
3 directed otherwise, such direction shall be null and void,
4 and the income of such property so directed to be
5 accumulated, shall, so long as the same shall be directed to
6 be accumulated contrary to the provisions of this Act, go to
7 and be received by the person in whom the beneficial interest
8 in the corpus of the estate from which such income was
9 derived is vested. This Section does not apply to trusts to
10 which Section 5 of the Statute Concerning Perpetuities
11 applies, to qualified perpetual trusts as defined in Section
12 3 of the Statute Concerning Perpetuities, to trusts created
13 for the purpose of care of burial places, or to trusts
14 created as part of a plan for the benefit of some or all of
15 the employes of one or more employers, including but without
16 limitation, a stock bonus, pension, disability, death
17 benefit, profit sharing, unemployment benefit or other plan,
18 for the purpose of distributing for the benefit of such
19 employes, including their beneficiaries, the earnings or the
20 principal, or both earnings and principal, of the fund so
21 held in trust. Nothing in this Act shall be deemed to affect
22 or modify in any manner the rule of property known as the
23 "rule against perpetuities". For purposes of this Act no
24 settlement or disposition shall be deemed effective as long
25 as, by the terms of the instrument creating it, the maker of
26 the instrument has the power to revoke the instrument or to
27 transfer or direct to be transferred to himself the entire
28 legal and equitable ownership of the property which is the
29 subject matter of the settlement or disposition.
30 The amendatory Act of 1953 applies only to deeds or
31 agreements inter vivos which become legally effective on or
32 after July 1, 1953, and only to wills of testators dying on
33 or after such date.
34 The amendatory Act of 1957 applies only to instruments
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1 which become effective after July 1, 1957.
2 This amendatory Act of 1969 applies only to instruments
3 which become effective after the effective date of this
4 amendatory Act of 1969, but the last sentence of the first
5 paragraph of this amendatory Act of 1969 shall be deemed to
6 be declaratory of the law prevailing in this state at the
7 effective date of this amendatory Act of 1969.
8 (Source: P.A. 76-1427.)
9 Section 95. No acceleration or delay. Where this Act
10 makes changes in a statute that is represented in this Act by
11 text that is not yet or no longer in effect (for example, a
12 Section represented by multiple versions), the use of that
13 text does not accelerate or delay the taking effect of (i)
14 the changes made by this Act or (ii) provisions derived from
15 any other Public Act.
16 Section 99. Effective date. This Act takes effect upon
17 becoming law.