SB0090 EnrolledLRB099 05209 HEP 25243 b



1 AN ACT concerning civil law.


2 Be it enacted by the People of the State of Illinois,

3represented in the General Assembly:



4 Section 5. The Probate Act of 1975 is amended by changing 
5Sections 4-1 and 11a-18 as follows:




6 (755 ILCS 5/4-1) (from Ch. 110 1/2, par. 4-1)



7 Sec. 4-1. Capacity of testator.) 
8 (a) Every person who has attained the age
of 18 years and 
9is of sound
mind and memory has power to bequeath by will the 
10real and personal estate which he
has at the time of his death.

11 (b) Except as stated herein, there is a rebuttable 
12presumption that a will or codicil is void if it was executed 
13or modified after the testator is adjudicated disabled under 
14Article XIa of this Act and either (1) a plenary guardian has 
15been appointed for the testator under subsection (c) of Section 
1611a-12 of this Act or (2) a limited guardian has been appointed 
17for the testator under subsection (b) of Section 11a-12 of this 
18Act and the court has found that the testator lacks 
19testamentary capacity. The rebuttable presumption is overcome 
20by clear and convincing evidence that the testator had the 
21capacity to execute the will or codicil at the time the will or 
22codicil was
executed. The rebuttable presumption does not apply 
23if the will or codicil was completed in
compliance with 
 
 
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1subsection (d-5) of Section lla-18 of this Act. This subsection 
2(b) applies only to wills or codicils executed or modified 
3after the effective date of this amendatory Act of the 99th 
4General
Assembly.
5(Source: P.A. 80-808.)





6 (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)



7 Sec. 11a-18. Duties of the estate guardian. 

8 (a) To the extent
specified in the order establishing the 
9guardianship, the guardian of
the estate shall have the care, 
10management and
investment of the estate, shall manage the 
11estate frugally and shall
apply the income and principal of the 
12estate so far as necessary for the
comfort and suitable support 
13and education of the ward, his minor and adult
dependent 
14children, and persons related by blood or marriage
who are 
15dependent upon or entitled to support from him, or for any 
16other
purpose which the court deems to be for the best 
17interests of the ward,
and the court may approve the making on 
18behalf of the ward of such
agreements as the court determines 
19to be for the ward's best interests.
The guardian may make 
20disbursement of his ward's
funds and estate directly to the 
21ward or other distributee or in such
other manner and in such 
22amounts as the court directs. If the estate of
a ward is 
23derived in whole or in part from payments of compensation,

24adjusted compensation, pension, insurance or other similar 
25benefits made
directly to the estate by the Veterans 
 
 
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1Administration, notice of the
application for leave to invest 
2or expend the ward's funds or estate,
together with a copy of 
3the petition and proposed order, shall be given
to the 
4Veterans' Administration Regional Office in this State at least 
57
days before the hearing on the application.

6 (a-5) The probate court, upon petition of a guardian, other 
7than the
guardian of a minor, and after notice to all other 
8persons interested as the
court directs, may authorize the 
9guardian to exercise any or all powers over
the estate and 
10business affairs of the ward that the ward could exercise if

11present and not under disability. The court may authorize the 
12taking of an
action or the application of funds not required 
13for the ward's current and
future maintenance
and support in 
14any manner approved by the court as being in keeping with the

15ward's wishes so far as they can be ascertained. The court must 
16consider the
permanence of the ward's disabling condition and 
17the natural objects of the
ward's bounty. In ascertaining and 
18carrying
out the ward's wishes the court may consider, but 
19shall not be limited to,
minimization of State or federal 
20income, estate, or inheritance taxes; and
providing gifts to 
21charities, relatives, and friends that would be likely

22recipients of donations from the ward. The ward's wishes as 
23best they can be
ascertained shall be carried out, whether or 
24not tax savings are involved.
Actions or applications of funds 
25may include, but shall not be limited to, the
following:


26  (1) making gifts of income or principal, or both, of 
 
 
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1 the estate, either
outright or in trust;


2  (2) conveying, releasing, or disclaiming his or her 
3 contingent and
expectant interests in property, including 
4 marital property rights and any
right of survivorship 
5 incident to joint tenancy or tenancy by the entirety;


6  (3) releasing or disclaiming his or her powers as 
7 trustee, personal
representative, custodian for minors, or 
8 guardian;


9  (4) exercising, releasing, or disclaiming his or her 
10 powers as donee
of a power of appointment;


11  (5) entering into contracts;


12  (6) creating for the benefit of the ward or others, 
13 revocable or
irrevocable trusts of his or her property that 
14 may extend beyond his or her
disability or life;


15  (7) exercising options of the ward to purchase or 
16 exchange
securities or other property;


17  (8) exercising the rights of the ward to elect benefit 
18 or payment
options, to terminate, to change beneficiaries 
19 or ownership, to assign
rights, to borrow, or to receive 
20 cash value in return for a surrender of
rights under any 
21 one or more of the following:


22   (i) life insurance policies, plans, or benefits,


23   (ii) annuity policies, plans, or benefits,


24   (iii) mutual fund and other dividend investment 
25 plans,


26   (iv) retirement, profit sharing, and employee 
 
 
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1 welfare plans and
benefits;


2  (9) exercising his or her right to claim or disclaim an 
3 elective share
in the estate of his or her deceased spouse 
4 and to renounce any interest by
testate or intestate 
5 succession or by inter vivos transfer;


6  (10) changing the ward's residence or domicile; or


7  (11) modifying by means of codicil or trust amendment 
8 the terms of the
ward's will or any revocable trust created 
9 by the ward, as the court may
consider advisable in light 
10 of changes in applicable tax laws.

11 The guardian in his or her petition shall briefly outline 
12the action or
application of funds for which he or she seeks 
13approval, the results expected
to be accomplished thereby, and 
14the tax savings, if any, expected to accrue.
The proposed 
15action or application of funds may include gifts of the ward's

16personal property or real estate, but transfers of real estate 
17shall be subject
to the requirements of Section 20 of this Act. 
18Gifts may be for
the benefit of prospective legatees, devisees, 
19or heirs apparent of the ward
or may be made to individuals or 
20charities in which the ward is believed to
have an interest. 
21The guardian shall also indicate in the petition that any

22planned disposition is consistent with the intentions of the 
23ward insofar as
they can be ascertained, and if the ward's 
24intentions cannot be ascertained,
the ward will be presumed to 
25favor reduction in the incidents of various forms
of taxation 
26and the partial distribution of his or her estate as provided 
 
 
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1in
this subsection. The guardian shall not, however, be 
2required to include as
a beneficiary or fiduciary any person 
3who he has reason to believe would be
excluded by the ward. A 
4guardian shall be required to investigate and pursue
a ward's 
5eligibility for governmental benefits.

6 (b) Upon the direction of the court which issued his 
7letters,
a guardian may perform the contracts of his ward which 
8were
legally subsisting at the time of the commencement of the 
9ward's
disability. The court may authorize the guardian to 
10execute and deliver
any bill of sale, deed or other instrument.

11 (c) The guardian of the estate of a ward shall
appear for 
12and represent the ward in all legal proceedings unless another

13person is appointed for that purpose as guardian or next 
14friend. This does not
impair the power of any court to appoint 
15a guardian ad litem or next friend
to defend the interests of 
16the ward in that court, or to appoint or allow any
person as 
17the next friend of a ward to commence, prosecute or defend any

18proceeding in his behalf. Without impairing the power of the 
19court in any
respect, if the guardian of the estate of a ward 
20and another person as next
friend shall appear for and 
21represent the ward in a legal proceeding in which
the 
22compensation of the attorney or attorneys representing the 
23guardian and
next friend is solely determined under a 
24contingent fee arrangement, the
guardian of the estate of the 
25ward shall not participate in or have any duty
to review the 
26prosecution of the action, to participate in or review the

 
 
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1appropriateness of any settlement of the action, or to 
2participate in or review
any determination of the 
3appropriateness of any fees awarded to the attorney or

4attorneys employed in the prosecution of the action.

5 (d) Adjudication of disability shall not revoke or

6otherwise terminate a trust which is revocable by the ward. A 
7guardian of the
estate shall have no authority to revoke a 
8trust that is revocable by the
ward, except that the court may 
9authorize a guardian to revoke a Totten trust
or similar 
10deposit or withdrawable capital account in trust to the extent

11necessary to provide funds for the purposes specified in 
12paragraph (a) of
this Section. If the trustee of any trust for 
13the benefit of the ward has
discretionary power to apply income 
14or principal for the ward's benefit,
the trustee shall not be 
15required to distribute any of the income or principal
to the 
16guardian of the ward's estate, but the guardian may
bring an 
17action on behalf of the ward to compel
the trustee to exercise 
18the trustee's discretion or to seek relief from
an abuse of 
19discretion. This paragraph shall not limit the right of a

20guardian of the estate to receive accountings from the trustee

21on behalf of the ward.

22 (d-5) Upon a verified petition by the plenary or limited 
23guardian of the estate or the request of the ward that is 
24accompanied by a current physician's report that states the 
25ward possesses testamentary capacity, the court may enter an 
26order authorizing the ward to execute a will or codicil. In so 
 
 
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1ordering, the court shall authorize the guardian to retain 
2independent counsel for the ward with whom the ward may execute 
3or modify a will or codicil. 
4 (e) Absent court order pursuant to the Illinois Power of 
5Attorney
Act directing a guardian to exercise
powers of the 
6principal under an agency that survives disability, the

7guardian will have no power, duty or liability with respect to 
8any property
subject to the agency. This subsection (e) applies 
9to all agencies,
whenever and wherever executed.

10 (f) Upon petition by any interested person (including the 
11standby or
short-term guardian), with such notice to interested 
12persons as the court
directs and a finding by the court that it 
13is in the best interest of the
disabled person, the court may 
14terminate or limit the authority of a standby or
short-term 
15guardian or may enter such other orders as the court deems 
16necessary
to provide for the best interest of the disabled 
17person. The petition for
termination or limitation of the 
18authority of a standby or short-term guardian
may, but need 
19not, be combined with a petition to have another guardian

20appointed for the disabled person.

21(Source: P.A. 95-331, eff. 8-21-07.)