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90_HB1658
New Act
Creates the Will Repository Act. Requires the clerk of
the circuit court of each county to establish a repository to
receive, process, hold, and dispose of wills of testators who
have not been located by the custodian of a will. Provides
that the costs associated with the operation of the
repository shall be paid by the custodian. Provides that the
Secretary of State shall maintain a list of testators whose
wills have been deposited in repositories. Provides for
operating procedures, requirements for deposit of wills in
the repository, removal of wills from the repository,
bailment relief, information on file with the Secretary, and
misidentification of testators. Effective January 1, 1998.
LRB9003935NTsb
LRB9003935NTsb
1 AN ACT concerning wills.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 Will Repository Act.
6 Section 5. Definitions. In this Act:
7 "Custodian" means a person, professional association, or
8 corporation that has come into possession, in the normal
9 course of business, of a document appearing to be a will.
10 The term includes, without limitation, an attorney, a safe
11 deposit company, a bank, a trust company, and any
12 organization to which a testor has delivered the will. A
13 guardian for a disabled custodian or the personal
14 representative of a deceased custodian is entitled to the
15 same rights under this Act as could have been exercised by
16 the disabled or deceased custodian.
17 "Will" means a document or documents within the meaning
18 of Section 1-2.18 of the Probate Act of 1975 and in Sections
19 10 through 45 of this Act, means "eligible will".
20 "Eligible will" means the executed, purported will of a
21 testator who has not been located by the custodian of the
22 will after following the procedure outlined in Section 20 of
23 this Act.
24 "Clerk" means the clerk of the circuit court of any of
25 the counties in this State.
26 Section 10. Establishment of repository. The clerk of
27 each county shall establish a repository to receive, process,
28 hold, and dispose of wills of testors whose last known places
29 of residence are in the county.
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1 Section 15. Operations and costs of repository.
2 (a) The operating procedures of the repository within
3 the scope of this Act shall be determined by the clerk in
4 each county.
5 (b) The costs associated with the operation of each
6 repository, as determined by each clerk, shall be reasonably
7 allocated among the wills to be deposited in the repository.
8 The costs shall be paid by the custodian tendering a will at
9 the time of deposit and may include, without limitation,
10 increments for copying, handling, notice to the Secretary of
11 State as provided in this Act, and ultimate disposition of
12 the will. In no event shall the charges payable by a
13 custodian with regard to a single will exceed a base charge
14 of $20 plus $1 per page of the will.
15 (c) Upon acceptance of a will, the clerk shall issue a
16 receipt to the depositing custodian that states the name of
17 the testator, the date of deposit, the date of the will, the
18 number of pages received, and the fee paid for repository
19 services.
20 (d) Within 30 days of deposit of a will, the clerk shall
21 notify the Secretary of State, by first class U.S. mail or by
22 any other means as specified in procedures established by the
23 Secretary of State, that a will has been deposited and shall
24 provide the information appearing on the affidavit set forth
25 in Section 20 of this Act. The clerk shall also tender to
26 the Secretary of State the sum of $5 as a filing fee.
27 (e) The clerk may copy each will received to create a
28 back-up record, provided that no alteration in form or
29 content of the original will results. The will, as
30 submitted, and any copy of the will shall be retained by the
31 clerk in a confidential file until the time of disposition of
32 the will as provided in this Act.
33 (f) The provisions of all deposited wills shall be
34 treated as confidential and may not be disclosed to anyone,
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1 including the testator, except under the order of a court of
2 proper jurisdiction. Anyone who willfully violates this
3 subsection (f) shall, upon conviction, be sentenced as in
4 cases of theft involving offenses defined as Class 3 felonies
5 under the Criminal Code of 1961.
6 Section 20. Requirements for deposit of wills to
7 repository.
8 (a) A custodian may deposit a will in a repository only
9 upon providing an affidavit to the clerk in substantially the
10 following form:
11 "REPOSITORY DEPOSIT AFFIDAVIT
12 I, .............. (name of affiant), on oath state:
13 1. (a) My post office address is ...............;
14 (b) My residence address is ................; and
15 (c) I understand that, if I am an out-of-state
16 resident, I submit myself to the jurisdiction of Illinois
17 courts for all matters related to the preparation and use
18 of this affidavit. My agent for service of process in
19 Illinois is:
20 NAME...........................................
21 ADDRESS........................................
22 CITY...........................................
23 TELEPHONE (if any).............................
24 I understand that if no person is named above as my agent for
25 service or, if for any reason, service on the named person
26 cannot be effectuated, the Clerk of the Circuit Court of
27 ................... (county) (Judicial Circuit) Illinois is
28 recognized by Illinois law as my agent for service of
29 process;
30 2. The name of the testator is ...................;
31 3. The last-known (by affiant) address of the testator
32 is ........................
33 .......................
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1 in the County of ................., State of Illinois;
2 4. The date of birth of the testator is (or is unknown)
3 ............;
4 5. The Social Security Number of the testator is (or is
5 unknown) ...................................;
6 6. The date(s) of execution of the Will is (are)
7 ........................;
8 7. The name of the attorney (or firm) which drew the
9 Will is (or is unknown) ...........................;
10 8. The names (and addresses if available) of the
11 witnesses to the Will are as follows;
12 .............................................................
13 .............................................................
14 .............................................................
15 9. I became custodian of a Will of the said testator
16 under the following circumstances: (State date custody was
17 created and in what manner.);
18 10. I have attempted, without success, to contact the
19 testator at the address set forth in paragraph 3 above by
20 United States Registered Mail, and I have attached hereto the
21 item mailed and evidence that the aforesaid registered mail
22 item was returned to me by the United States Postal Service
23 as undeliverable.
24 11. I have no knowledge of the whereabouts of the
25 testator nor any information which would reasonably lead me
26 to conclude that the testator has died.
27 The foregoing statement is made under the penalties of
28 perjury as defined in Section 32-2 of the Criminal Code of
29 1961.
30 ...................... ..................................
31 Date Signature of Affiant"
32 Section 25. Removal of wills from repository.
33 (a) The will shall be retained in the repository until
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1 the earliest to occur of the following;
2 (1) the receipt by the clerk of the notice of death
3 of a testator, whose will has been deposited in the
4 repository, by means of a certified copy of the medical
5 or coroner's certificate of death or by a certified copy
6 of an order of court determining the testator to be
7 deceased;
8 (2) the expiration of 80 years from the date the
9 will was deposited in the repository;
10 (3) the expiration of 90 years from the date of
11 execution of the earliest portion of the will; or
12 (4) receipt by the clerk of a certified order of a
13 court of proper jurisdiction directing disposition of the
14 will.
15 (b) Upon receipt by the clerk of the notice of death of
16 a testator whose will is held in the repository, the clerk
17 shall cause the will to be filed in accordance with
18 subsection (a) of section 6-1 of the Probate Act of 1975.
19 (c) Upon the expiration of either the periods set forth
20 in subdivisions (2) and (3) of subsection (a) of this
21 Section, the clerk shall destroy the will and any copies of
22 the will held by the clerk in the repository. However, the
23 foregoing notwithstanding, all wills deposited in the
24 repository shall be held for a period of at least one year
25 from the date of deposit before they may be destroyed.
26 (d) The clerk shall notify the Secretary of State within
27 30 days of the removal or destruction of any will held in the
28 repository.
29 Section 30. Bailment relief.
30 (a) Custodians depositing documents with the clerk in
31 accordance with this Act are relieved of custodial
32 responsibility to the testator or the testator's heirs or
33 legatees after the date of deposit. Nothing in this Act
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1 shall bar causes of action against the custodian for any
2 matter other than termination of custody of the will in
3 accordance with this Act.
4 (b) The fees paid by a custodian in depositing a
5 document with the clerk in accordance with this Act shall be
6 recoverable by the custodian from the testator or shall
7 qualify as a first class claim against the deceased
8 testator's estate as defined in Section 18-11 of the Probate
9 Act of 1975.
10 Section 35. Misidentification of testator. If the court
11 determines that a will removed from a repository and filed in
12 proceedings before it is not the will of the testator in the
13 proceedings in question, it shall order the return of the
14 document to the original repository and shall expunge from
15 its records all information concerning the contents of the
16 will.
17 Section 40. Duty of Secretary of State to establish a
18 registry of wills filed in repositories within this State.
19 (a) The Secretary of State shall maintain a list of
20 testators whose wills have been deposited in repositories of
21 the various counties in accordance with this Act. The
22 registry shall contain all of the information included in the
23 notice received from the clerk under subsection (d) of
24 Section 15 of this Act.
25 (b) The information contained in the registry shall be
26 confidential and may only be disclosed, to the extent
27 necessary to effect the purposes of this Act, to a person
28 presenting a certified copy of the medical or coroner's
29 certificate of death or a certified copy of a court order
30 determining the death of the testator in question or upon
31 receipt of a certified copy of an order of a court of
32 competent jurisdiction directing release of the information.
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1 Anyone who willfully violates this confidentiality provision
2 shall, upon conviction, be sentenced as in cases of theft of
3 property classified as a Class 3 felony by law in effect at
4 the date of the offense.
5 (c) The information contained in the registry shall be
6 maintained until the earlier of the following:
7 (1) receipt by the Secretary of State of written
8 notice by the clerk that a will has been withdrawn from a
9 repository; or
10 (2) the expiration of 80 years form the date of
11 deposit of the will in the repository or 90 years from
12 the date of the earliest portion of the will, except that
13 all information shall be maintained for a period of not
14 less than one year.
15 Section 45. Information on file with the Secretary of
16 State.
17 (a) Upon presentation to the Secretary of State of a
18 certified copy of a medical or coroner's certificate of death
19 or a certified copy of an order of court determining death,
20 anyone seeking information on file in the registry of the
21 Secretary of State with regard to the deceased person shall
22 be entitled to receive the information shown on the affidavit
23 set forth in Section 20 of this Act. However, the Secretary
24 of State shall not provide the information unless it is clear
25 that the proof of death mentioned in this subsection (a)
26 applies to a testator whose will is reflected in the records
27 of the registry. If the Secretary of State cannot determine
28 with reasonable certainty that the deceased person is the
29 same individual as a testator whose name appears in the
30 registry, the reason for the uncertainty may be disclosed to
31 the person seeking information, and the Secretary of State
32 may determine what additional conditions must be met before
33 further information is released.
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1 (b) Upon confirmation that a person whose name appears
2 in the registry has died, the Secretary of State shall notify
3 the clerks of all repositories shown to be holding wills of
4 the decedent of the date of death and residence of the
5 decedent as shown on the document establishing death.
6 Thereupon, the clerks shall cause the wills of the deceased
7 persons to be filed in accordance with Section 6-1 of the
8 Probate Act of 1975.
9 Section 999. Effective date. This Act takes effect
10 January 1, 1998.