Public Act 90-0430 of the 90th General Assembly
Public Act 90-0430
HB0306 Enrolled LRB9000615YYmg
AN ACT concerning probate, amending a named Act.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Probate Act of 1975 is amended by
changing Sections 1-11, 9-1, 9-3, 11-3, 11-5, 11a-5, and 23-2
as follows:
(755 ILCS 5/1-11) (from Ch. 110 1/2, par. 1-11)
Sec. 1-11. Nonresident representative. If a
representative is or becomes a nonresident of this State, the
representative he shall file in the court in which the estate
is pending a designation of a resident agent to accept
service of process, notice or demand required or permitted by
law to be served upon the representative. If the
representative he fails to do so, the clerk of the court is
constituted as agent of the representative upon whom the
process, notice or demand may be served. If service is made
upon the clerk of the court, the clerk of the court he shall
mail a copy of the process, notice or demand to the
representative at the representative's his last known post
office address and to the representative's his attorney of
record.
(Source: P.A. 85-692.)
(755 ILCS 5/9-1) (from Ch. 110 1/2, par. 9-1)
Sec. 9-1. Who may act as administrator.) A person who
has attained the age of 18 years, and is a resident of the
United States this State, is not of unsound mind, is not an
adjudged disabled person as defined in this Act and has not
been convicted of a felony, is qualified to act as
administrator.
(Source: P.A. 85-692.)
(755 ILCS 5/9-3) (from Ch. 110 1/2, par. 9-3)
Sec. 9-3. Persons entitled to preference in obtaining
letters.) The following persons are entitled to preference in
the following order in obtaining the issuance of letters of
administration and of administration with the will annexed:
(a) The surviving spouse or any person nominated by the
surviving spouse him.
(b) The legatees or any person nominated by them, with
preference to legatees who are children.
(c) The children or any person nominated by them.
(d) The grandchildren or any person nominated by them.
(e) The parents or any person nominated by them.
(f) The brothers and sisters or any person nominated by
them.
(g) The nearest kindred or any person nominated by them.
(h) The representative of the estate of a deceased ward.
(i) The Public Administrator.
(j) A creditor of the estate.
Only a person qualified to act as administrator under
this Act may nominate, except that the guardian of the
estate, if any, otherwise the guardian of the person, of a
person who is not qualified to act as administrator solely
because of minority or legal disability non-residence in this
State may nominate on behalf of the minor or disabled person
in accordance with the order of preference set forth in this
Section if he is a resident of the United States. A person
who has been removed as representative under this Act loses
the his right to name a his successor.
When several persons are claiming and are equally
entitled to administer or to nominate an administrator, the
court may grant letters to one or more of them or to the
nominee of one or more of them.
(Source: P.A. 85-692.)
(755 ILCS 5/11-3) (from Ch. 110 1/2, par. 11-3)
(Text of Section before amendment by P.A. 89-507)
Sec. 11-3. Who may act as guardian.) (a) A person who
has attained the age of 18 years, and is a resident of the
United States, is not of unsound mind, is not an adjudged
disabled person as defined in this Act, and has not been
convicted of a felony, and who the court finds is capable of
providing an active and suitable program of guardianship for
the minor is qualified to act as guardian of the person and,
if he is a resident of this State, as guardian of the estate.
One person may be appointed guardian of the person and
another person appointed guardian of the estate.
(b) The Department of Mental Health and Developmental
Disabilities or the Department of Children and Family
Services may with the approval of the court designate one of
its employees to serve without fees as guardian of the estate
of a minor patient in a State mental hospital or a resident
in a State institution when the value of the personal estate
does not exceed $1,000.
(Source: P.A. 85-692.)
(Text of Section after amendment by P.A. 89-507)
Sec. 11-3. Who may act as guardian.)
(a) A person who has attained the age of 18 years, and
is a resident of the United States, is not of unsound mind,
is not an adjudged disabled person as defined in this Act,
and has not been convicted of a felony, and who the court
finds is capable of providing an active and suitable program
of guardianship for the minor is qualified to act as guardian
of the person and, if he is a resident of this State, as
guardian of the estate. One person may be appointed guardian
of the person and another person appointed guardian of the
estate.
(b) The Department of Human Services or the Department
of Children and Family Services may with the approval of the
court designate one of its employees to serve without fees as
guardian of the estate of a minor patient in a State mental
hospital or a resident in a State institution when the value
of the personal estate does not exceed $1,000.
(Source: P.A. 89-507, eff. 7-1-97.)
(755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)
Sec. 11-5. Appointment of guardian.
(a) Upon the filing of a petition for the appointment of
a guardian or on its own motion, the court may appoint a
guardian of the person or estate, or both, of a minor as the
court finds to be in the best interest of the minor.
(a-1) A parent, adoptive parent or adjudicated parent,
whose parental rights have not been terminated, may designate
in any writing, including a will, a person qualified to act
under Section 11-3 to be appointed as guardian of the person
or estate, or both, of an unmarried minor or of a child
likely to be born. A parent, adoptive parent or adjudicated
parent, whose parental rights have not been terminated, or a
guardian or a standby guardian of an unmarried minor or of a
child likely to be born may designate in any writing,
including a will, a person qualified to act under Section
11-3 to be appointed as successor guardian of the minor's
person or estate, or both. The designation must be witnessed
by 2 or more credible witnesses at least 18 years of age,
neither of whom is the person designated as the guardian.
The designation may be proved by any competent evidence. If
the designation is executed and attested in the same manner
as a will, it shall have prima facie validity. The
designation of a guardian or successor guardian does not
affect the rights of the other parent in the minor.
(b) The court lacks jurisdiction to proceed on a
petition for the appointment of a guardian of a minor if (i)
the minor has a living parent, adoptive parent or adjudicated
parent, whose parental rights have not been terminated, whose
whereabouts are known, and who is willing and able to make
and carry out day-to-day child care decisions concerning the
minor, unless the parent or parents consent to the
appointment or, after receiving notice of the hearing under
Section 11-10.1, fail to object to the appointment at the
hearing on the petition or (ii) there is a guardian for the
minor appointed by a court of competent jurisdiction. There
shall be a rebuttable presumption that a parent of a minor is
willing and able to make and carry out day-to-day child care
decisions concerning the minor, but the presumption may be
rebutted by a preponderance of the evidence.
(b-1) If the court finds the appointment of a guardian
of the minor to be in the best interest of the minor, and if
a standby guardian has previously been appointed for the
minor under Section 11-5.3, the court shall appoint the
standby guardian as the guardian of the person or estate, or
both, of the minor unless the court finds, upon good cause
shown, that the appointment would no longer be in the best
interest of the minor.
(c) If the minor is 14 years of age or more, the minor
may nominate the guardian of the minor's person and estate,
subject to approval of the court. If the minor's nominee is
not approved by the court, or if the minor resides out of the
State, or if, after notice to the minor, the minor fails to
nominate a guardian of the minor's person or estate, the
court may appoint the guardian without nomination.
(d) The court shall not appoint as guardian of the
person of the minor any person whom the court has determined
had caused or substantially contributed to the minor becoming
a neglected or abused minor as defined in the Juvenile Court
Act of 1987 unless 2 years have elapsed since the last proven
incident of abuse or neglect and the court determines that
appointment of such person as guardian is in the best
interests of the minor.
(e) Previous statements made by the minor relating to
any allegations that the minor is an abused or neglected
child within the meaning of the Abused and Neglected Child
Reporting Act, or an abused or neglected minor within the
meaning of the Juvenile Court Act of 1987, shall be
admissible in evidence in a hearing concerning appointment of
a guardian of the person or estate of the minor. No such
statement, however, if uncorroborated and not subject to
cross-examination, shall be sufficient in itself to support a
finding of abuse or neglect.
(Source: P.A. 87-1081; 88-529.)
(755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)
Sec. 11a-5. Who may act as guardian.) (a) A person who
has attained the age of 18 years, is a resident of the United
States, is not of unsound mind, is not an adjudged disabled
person as defined in this Act, and has not been convicted of
a felony, and who the court finds is capable of providing an
active and suitable program of guardianship for the disabled
person is qualified to act as guardian of the person and as,
if he is a resident of this State, guardian of the estate of
a disabled person.
(b) Any public agency, or not-for-profit corporation
found capable by the court of providing an active and
suitable program of guardianship for the disabled person,
taking into consideration the nature of such person's
disability and the nature of such organization's services,
may be appointed guardian of the person or of the estate, or
both of the disabled person, or both. The court shall not
appoint as guardian an agency which is directly providing
residential services to the ward. One person or agency may
be appointed guardian of the person and another person or
agency appointed guardian of the estate.
(c) Any corporation qualified to accept and execute
trusts in this State may be appointed guardian of the estate
of a disabled person.
(Source: P.A. 85-692.)
(755 ILCS 5/23-2) (from Ch. 110 1/2, par. 23-2)
Sec. 23-2. Removal.) (a) On petition of any interested
person or on the court's own motion, the court may remove a
representative for any of the following causes. If the
representative:
(1) is acting under letters secured by false pretenses;
(2) is adjudged a person subject to involuntary
admission under the Mental Health and Developmental
Disabilities Code or is adjudged a disabled person;
(3) is convicted of a felony;
(4) wastes or mismanages the estate;
(5) conducts himself or herself in such a manner as to
endanger any his co-representative or the surety on the
representative's his bond;
(6) fails to give sufficient bond or security, counter
security or a new bond, after being ordered by the court to
do so;
(7) fails to file an inventory or accounting after being
ordered by the court to do so;
(8) conceals himself or herself so that process cannot
be served upon the representative him or notice cannot be
given to the representative him;
(9) becomes incapable of or unsuitable for the discharge
of the representative's his duties; or
(10) there is other good cause.
(b) If the representative executor becomes a nonresident
of the United States or the administrator, administrator to
collect, guardian of the estate or temporary guardian becomes
a nonresident of this State, the court may remove the
representative him as such representative.
(Source: P.A. 81-795.)
Section 95. No acceleration or delay. Where this Act
makes changes in a statute that is represented in this Act by
text that is not yet or no longer in effect (for example, a
Section represented by multiple versions), the use of that
text does not accelerate or delay the taking effect of (i)
the changes made by this Act or (ii) provisions derived from
any other Public Act.
Section 99. Effective date. This Act takes effect upon
becoming law.