HB0162 98TH GENERAL ASSEMBLY

LRB098 04168 HEP 34191 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB0162

Introduced 1/16/2013, by Rep. Linda Chapa LaVia

SYNOPSIS AS INTRODUCED:

755 ILCS 5/11-13.4 new
755 ILCS 5/25-1	from Ch. 110 1/2, par. 25-1

Amends the Probate Act of 1975. Provides that the terms of a guardianship account established on behalf of a minor at a financial institution must provide for compliance with court orders regarding the establishment and management of the account, and imposes certain other duties upon financial institutions. Provides that an entity may not act under the direction of a small estate affidavit unless the affiant, or his or her agent, has first presented the affidavit before a judge and obtained a court order granting access. Provides that the affidavit shall state that the burial and funeral expenses, medical bills, credit card bills, and real property taxes (instead of funeral expenses) have been, or remain to be, paid. Provides that if there is a surviving spouse, but the surviving spouse is not the affiant, the affiant must state the reason that the affiant, rather than the surviving spouse, has prepared the small estate affidavit. Provides that an affidavit not prepared by a surviving spouse must include a notarized statement, signed by the surviving spouse and witnessed by 2 persons unrelated to the affiant, stating that the surviving spouse declines to prepare the affidavit. Provides that if the reason for the surviving spouse's inability to prepare the affidavit is medically related, a letter from the surviving spouse's physician should be attached attesting to the medical condition that makes the surviving spouse unable to complete the affidavit. Provides that if there is no surviving spouse and there is one or more minor children, the affiant must be a court appointed guardian for one or more of the children. Provides that if the surviving spouse is the affiant, he or she shall affirm that he or she was not separated from the decedent. Makes other changes.

A BILL FOR

AN ACT concerning civil law.

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 Section 25-1 and adding Section 11-13.4 as follows:

(755 ILCS 5/11-13.4 new)

Sec. 11-13.4. Financial institution; guardianship accounts established on behalf of minors.

(a) If an account at a financial institution is a guardianship account established on behalf of a minor, the terms of the account must provide for compliance with orders of the court, if any, regarding the establishment and management of that account. A financial institution has a duty to inquire as to the existence of any court orders when opening a guardianship account on behalf of a minor. If the financial institution holds an account that is subject to a court order, the financial institution must obtain a court order granting the authority to release funds from the account. An order authorizing the disbursement of funds in the account may be granted only upon a showing of good cause.

(b) A guardian of a minor that establishes an account with a financial institution on behalf of the minor pursuant to a court order has a duty to present the court order to the financial institution at the time the account is opened.

(c) As used in this Section, "financial institution" includes, but is not limited to, a bank, credit union, investment company, savings bank, savings and loan association, securities dealer, and trust company.

(755 ILCS 5/25-1) (from Ch. 110 1/2, par. 25-1)

Sec. 25-1. Payment or delivery of small estate of decedent upon affidavit.

(a) When any person, or corporation, or financial institution (1) indebted to or holding personal estate of a decedent, (2) controlling the right of access to decedent's safe deposit box or (3) acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right is furnished with a small estate affidavit in substantially the form hereinafter set forth, that person, or corporation, or financial institution, upon examining and approving the documents presented by the affiant which are attached to the small estate affidavit, shall pay the indebtedness, grant access to the safe deposit box, deliver the personal estate or transfer or issue the evidence of interest, indebtedness, property or right to persons and in the manner specified in paragraph 11 of the affidavit or to an agent appointed as hereinafter set forth.

(a-5) A person, corporation, or financial institution may not pay the indebtedness, grant access to the safe deposit box, deliver the personal estate, or transfer or issue the evidence of interest, indebtedness, property or right as provided in subsection (a) of this Section, unless the affiant, or his or her agent, has first obtained a court order as provided in this subsection (a-5). A judge shall grant an order under this subsection (a-5) if the affiant presents: (i) the small estate affidavit; (ii) evidence of notice having been given to the heirs or legatees identified in paragraph 10 of the affidavit; and (iii) a petition asking the court to find that the affidavit does not appear to have been fraudulently executed and to grant access to property in the manner specified in paragraph 11 of the affidavit. A person, corporation, or financial institution has a duty to inquire as to the existence of any court orders before taking action under this Section.

(b) Small Estate Affidavit

I, (name of affiant) , on oath state:

1. (a) My post office address is: ;

(b) My residence address is: ; and

(c) I understand that, if I am an out-of-state resident, I submit myself to the jurisdiction of Illinois courts for all matters related to the preparation and use of this affidavit. My agent for service of process in Illinois is:

NAME..........................

ADDRESS.......................

CITY..........................

TELEPHONE (IF ANY)............

I understand that if no person is named above as my agent for service or, if for any reason, service on the named person cannot be effectuated, the clerk of the circuit court of ......(County) (Judicial Circuit) Illinois is recognized by Illinois law as my agent for service of process.

2. The decedent's name is ;

3. The date of the decedent's death was , and I have attached a copy of the death certificate hereto.

4. The decedent's place of residence immediately before his death was ;

5. No letters of office are now outstanding on the decedent's estate and no petition for letters is contemplated or pending in Illinois or in any other jurisdiction, to my knowledge;

6. The gross value of the decedent's entire personal estate, including the value of all property passing to any party either by intestacy or under a will, does not exceed $100,000. (Here, list each asset, e.g., cash, stock, and its fair market value.);

Name Specific sum or property to be distributed

The foregoing statement is made under the penalties of perjury*.

.........................

Signature of Affiant

*(Note: A fraudulent statement made under the penalties of perjury is perjury, as defined in Section 32-2 of the Criminal Code of 1961.)

(c) Appointment of Agent. If safe deposit access is involved or if sale of any personal property is desirable to facilitate distribution pursuant to the small estate affidavit, all persons named in paragraph 11 of the small estate affidavit (excluding minors and unascertained or disabled persons) may in writing appoint one or more persons as their agent for that purpose, provided that the writing contains the signature of each person, is witnessed by 2 persons unrelated to the affiant and is notarized, and also shows the written consent of the surviving spouse and all adult children. The agent shall have power, without court approval, to gain access to, sell, and distribute the property for the benefit of all persons named in paragraph 11 of the affidavit; and the payment, delivery, transfer, access or issuance shall be made or granted to or on the order of the agent.

(d) Release. Upon examination and approval of all documents presented by the affiant with this small estate affidavit, payment, delivery, transfer, access or issuance pursuant to a properly executed affidavit, the person, or corporation, or financial institution is released to the same extent as if the payment, delivery, transfer, access or issuance had been made or granted to the representative of the estate. Such person, or corporation, or financial institution is not required to see to the application or disposition of the property; but each person to whom a payment, delivery, transfer, access or issuance is made or given is answerable therefor to any person having a prior right and is accountable to any representative of the estate.

(e) The affiant signing the small estate affidavit prepared pursuant to subsection (b) of this Section shall indemnify and hold harmless all creditors and heirs of the decedent and other persons relying upon the affidavit who incur loss because of such reliance. That indemnification shall only be up to the amount lost because of the act or omission of the affiant. Any person recovering under this subsection (e) shall be entitled to reasonable attorney's fees and the expenses of recovery.

(f) The affiant of a small estate affidavit who is a non-resident of Illinois submits himself or herself to the jurisdiction of Illinois courts for all matters related to the preparation or use of the affidavit. The affidavit shall provide the name, address, and phone number of a person whom the affiant names as his agent for service of process. If no such person is named or if, for any reason, service on the named person cannot be effectuated, the clerk of the circuit court of the county or judicial circuit of which the decedent was a resident at the time of his death shall be the agent for service of process.

(g) Any action properly taken under this Section, as amended by Public Act 93-877, on or after August 6, 2004 (the effective date of Public Act 93-877) is valid regardless of the date of death of the decedent.

(h) The changes made by this amendatory Act of the 96th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 96th General Assembly.

(Source: P.A. 96-968, eff. 7-2-10.)