[ Search ] [ Legislation ] [ Bill Summary ]
[ Home ] [ Back ] [ Bottom ]
90_SB1638
755 ILCS 5/11a-18 from Ch. 110 1/2, par. 11a-18
Amends the Probate Act of 1975. Provides that the
probate court may authorize the guardian to exercise powers
of the estate of a ward after notice to all interested
persons and all other persons (now all other persons
interested) as the court directs. Provides that the guardian
may convey, release, or disclaim interests in property,
including contingent and expectant interests, marital
property rights, and any right of survivorship (now
contingent and expectant interest in property, including
marital property rights and any right of survivorship).
Provides that a guardian may enter into contracts on behalf
of the ward (now into contracts). Provides that guardian may
exercise the ward's right to an elective share in the estate
of the ward's deceased spouse through renunciation (now to
claim or disclaim an elective share in the estate of his or
her deceased spouse and to renounce any interest by testate
or intestate succession or by inter vivos transfer).
Provides that the guardian may modify the ward's will or
revocable trust, as the court may deem advisable (now as the
court may deem advisable in light of changes in applicable
tax laws.) Makes other changes.
LRB9009532MWpc
LRB9009532MWpc
1 AN ACT to amend the Probate Act of 1975 by changing
2 Section 11a-18.
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 Section 11a-18 as follows:
7 (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
8 Sec. 11a-18. Duties of the estate guardian.
9 (a) To the extent specified in the order establishing
10 the guardianship, the guardian of the estate shall have the
11 care, management and investment of the estate, shall manage
12 the estate frugally and shall apply the income and principal
13 of the estate so far as necessary for the comfort and
14 suitable support and education of the ward, his minor and
15 adult dependent children, and persons related by blood or
16 marriage who are dependent upon or entitled to support from
17 him, or for any other purpose which the court deems to be for
18 the best interests of the ward, and the court may approve the
19 making on behalf of the ward of such agreements as the court
20 determines to be for the ward's best interests. The guardian
21 may make disbursement of his ward's funds and estate directly
22 to the ward or other distributee or in such other manner and
23 in such amounts as the court directs. If the estate of a
24 ward is derived in whole or in part from payments of
25 compensation, adjusted compensation, pension, insurance or
26 other similar benefits made directly to the estate by the
27 Veterans Administration, notice of the application for leave
28 to invest or expend the ward's funds or estate, together with
29 a copy of the petition and proposed order, shall be given to
30 the Veterans' Administration Regional Office in this State at
31 least 7 days before the hearing on the application.
-2- LRB9009532MWpc
1 (a-5) The probate court, upon petition of a guardian,
2 other than the guardian of a minor, and after notice to all
3 interested persons and all other persons interested as the
4 court directs, may authorize the guardian to exercise any or
5 all powers over the estate and business affairs of the ward
6 that the ward could exercise if present and not under
7 disability. The court may authorize the taking of an action
8 or the application of funds not required for the ward's
9 current and future maintenance and support in any manner
10 approved by the court as being in keeping with the ward's
11 wishes so far as they can be ascertained. The court must
12 consider the permanence of the ward's disabling condition and
13 the natural objects of the ward's bounty. In ascertaining and
14 carrying out the ward's wishes the court may consider, but
15 shall not be limited to, minimization of State or federal
16 income, estate, or inheritance taxes; and providing gifts to
17 charities, relatives, and friends that would be likely
18 recipients of donations from the ward. The ward's wishes as
19 best they can be ascertained shall be carried out, whether or
20 not tax savings are involved. Actions or applications of
21 funds may include, but shall not be limited to, the
22 following:
23 (1) making gifts of income or principal, or both,
24 of the estate, either outright or in trust;
25 (2) conveying, releasing, or disclaiming the ward's
26 his or her contingent and expectant interests in
27 property, including contingent and expectant interests,
28 marital property rights, and any right of survivorship
29 incident to joint tenancy or tenancy by the entirety;
30 (3) releasing or disclaiming the ward's his or her
31 powers as trustee, personal representative, custodian for
32 minors, or guardian;
33 (4) exercising, releasing, or disclaiming the
34 ward's his or her powers as donee of a power of
-3- LRB9009532MWpc
1 appointment;
2 (5) entering into contracts on behalf of the ward;
3 (6) creating for the benefit of the ward or others,
4 revocable or irrevocable trusts of the ward's his or her
5 property that may extend beyond the ward's his or her
6 disability or life.
7 (7) exercising options of the ward to purchase or
8 exchange securities or other property;
9 (8) exercising the rights of the ward to elect
10 benefit or payment options, to terminate, to change
11 beneficiaries or ownership, to assign rights, to borrow,
12 or to receive cash value in return for a surrender of
13 rights under any one or more of the following:
14 (i) Life insurance policies, plans, or
15 benefits.
16 (ii) Annuity policies, plans, or benefits.
17 (iii) Mutual fund and other dividend
18 investment plans.
19 (iv) Retirement, profit sharing, and employee
20 welfare plans and benefits;
21 (9) exercising the ward's his or her right to claim
22 or disclaim an elective share in the estate of the ward's
23 his or her deceased spouse through renunciation and to
24 renounce any interest by testate or intestate succession
25 or by inter vivos transfer;
26 (10) changing the ward's residence or domicile; or
27 (11) modifying by means of codicil or trust
28 amendment the terms of the ward's will or any revocable
29 trust created by the ward, as the court may consider
30 advisable in light of changes in applicable tax laws.
31 The guardian's guardian in his or her petition shall
32 briefly outline the action or application of funds for which
33 the guardian he or she seeks approval, the results expected
34 to be accomplished thereby, and the tax savings, if any,
-4- LRB9009532MWpc
1 expected to accrue. The proposed action or application of
2 funds may include gifts of the ward's personal property or
3 real estate, but transfers of real estate shall be subject to
4 the requirements of Section 20 of this Act. Gifts may be for
5 the benefit of prospective legatees, devisees, or heirs
6 apparent of the ward or may be made to individuals or
7 charities in which the ward is believed to have an interest.
8 The guardian shall also indicate in the petition that any
9 planned disposition is consistent with the intentions of the
10 ward insofar as they can be ascertained, and if the ward's
11 intentions cannot be ascertained, the ward will be presumed
12 to favor reduction in the incidents of various forms of
13 taxation and the partial distribution of his or her estate as
14 provided in this subsection. The guardian shall not,
15 however, be required to include as a beneficiary or fiduciary
16 any person who he has reason to believe would be excluded by
17 the ward. A guardian shall be required to investigate and
18 pursue a ward's eligibility for governmental benefits.
19 (b) Upon the direction of the court which issued his
20 letters, a guardian may perform the contracts of his ward
21 which were legally subsisting at the time of the commencement
22 of the ward's disability. The court may authorize the
23 guardian to execute and deliver any bill of sale, deed or
24 other instrument.
25 (c) The guardian of the estate of a ward shall appear
26 for and represent the ward in all legal proceedings unless
27 another person is appointed for that purpose as guardian or
28 next friend. This does not impair the power of any court to
29 appoint a guardian ad litem or next friend to defend the
30 interests of the ward in that court, or to appoint or allow
31 any person as the next friend of a ward to commence,
32 prosecute or defend any proceeding in his behalf. Without
33 impairing the power of the court in any respect, if the
34 guardian of the estate of a ward and another person as next
-5- LRB9009532MWpc
1 friend shall appear for and represent the ward in a legal
2 proceeding in which the compensation of the attorney or
3 attorneys representing the guardian and next friend is solely
4 determined under a contingent fee arrangement, the guardian
5 of the estate of the ward shall not participate in or have
6 any duty to review the prosecution of the action, to
7 participate in or review the appropriateness of any
8 settlement of the action, or to participate in or review any
9 determination of the appropriateness of any fees awarded to
10 the attorney or attorneys employed in the prosecution of the
11 action.
12 (d) Adjudication of disability shall not revoke or
13 otherwise terminate a trust which is revocable by the ward.
14 A guardian of the estate shall have no authority to revoke a
15 trust that is revocable by the ward, except that the court
16 may authorize a guardian to revoke a Totten trust or similar
17 deposit or withdrawable capital account in trust to the
18 extent necessary to provide funds for the purposes specified
19 in paragraph (a) of this Section. If the trustee of any
20 trust for the benefit of the ward has discretionary power to
21 apply income or principal for the ward's benefit, the trustee
22 shall not be required to distribute any of the income or
23 principal to the guardian of the ward's estate, but the
24 guardian may bring an action on behalf of the ward to compel
25 the trustee to exercise the trustee's discretion or to seek
26 relief from an abuse of discretion. This paragraph shall not
27 limit the right of a guardian of the estate to receive
28 accountings from the trustee on behalf of the ward.
29 (e) Absent court order pursuant to the "Illinois Power
30 of Attorney Act" enacted by the 85th General Assembly
31 directing a guardian to exercise powers of the principal
32 under an agency that survives disability, the guardian will
33 have no power, duty or liability with respect to any property
34 subject to the agency. This subsection (e) applies to all
-6- LRB9009532MWpc
1 agencies, whenever and wherever executed.
2 (Source: P.A. 89-672, eff. 8-14-96; 90-345, eff. 8-8-97.)