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Public Act 098-1093
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| SB1048 Enrolled | LRB098 05314 HEP 35348 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Probate Act of 1975 is amended by by adding |
Article IVa as follows:
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(755 ILCS 5/Art. IVa heading new) |
ARTICLE IVa |
PRESUMPTIVELY VOID TRANSFERS
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(755 ILCS 5/4a-5 new) |
Sec. 4a-5. Definitions. As used in this Article: |
(1) "Caregiver" means a person who voluntarily, or in |
exchange for compensation, has assumed responsibility for all |
or a portion of the care of another person who needs assistance |
with activities of daily living. "Caregiver" includes a |
caregiver's spouse, cohabitant, child, or employee. |
"Caregiver" does not include a family member of the person |
receiving assistance. |
(2) "Family member" means a spouse, child, grandchild, |
sibling, aunt, uncle, niece, nephew, first cousin, or parent of |
the person receiving assistance. |
(3) "Transfer instrument" means the legal document |
intended to effectuate a transfer effective on or after the |
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transferor's death and includes, without limitation, a will, |
trust, deed, form designated as payable on death, contract, or |
other beneficiary designation form. |
(4) "Transferee" means a legatee, a beneficiary of a trust, |
a grantee of a deed, or any other person designated in a |
transfer instrument to receive a nonprobate transfer. |
(5) "Transferor" means a testator, settlor, grantor of a |
deed, or a decedent whose interest is transferred pursuant to a |
nonprobate transfer.
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(755 ILCS 5/4a-10 new) |
Sec. 4a-10. Presumption of void transfer. |
(a) In any civil action in which a transfer instrument is |
being challenged, there is a rebuttable presumption, except as |
provided in Section 4a-15, that the transfer instrument is void |
if the transferee is a caregiver and the fair market value of |
the transferred property exceeds $20,000. |
(b) Unless a shorter limitations period is required by |
Section 8-1 or 18-12 of this Act, any action under this Section |
shall be filed within 2 years of the date of death of the |
transferor.
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(755 ILCS 5/4a-15 new) |
Sec. 4a-15. Exceptions. The rebuttable presumption |
established by Section 4a-10 can be overcome if the transferee |
proves to the court either: |
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(1) by a preponderance of evidence that the |
transferee's share under the transfer instrument is not |
greater than the share the transferee was entitled to under |
the transferor's transfer instrument in effect prior to the |
transferee becoming a caregiver; or |
(2) by clear and convincing evidence that the transfer |
was not the product of fraud, duress, or undue influence.
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(755 ILCS 5/4a-20 new) |
Sec. 4a-20. Common law. The provisions of this Article do |
not abrogate or limit any principle or rule of the common law, |
unless the common law principle or rule is inconsistent with |
the provisions of this Article. Notwithstanding the limited |
definition of "caregiver" in Section 4a-5 of this Article, |
nothing in this Article precludes any action against any |
individual under the common law, or any other applicable law, |
regardless of the individual's familial relationship with the |
person receiving assistance. The provisions of this Article are |
in addition to any other principle or rule of law.
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(755 ILCS 5/4a-25 new) |
Sec. 4a-25. Attorney's fees and costs. If the caregiver |
attempts and fails to overcome the presumption under Section |
4a-15, the caregiver shall bear the costs of the proceedings, |
including, without limitation, reasonable attorney's fees.
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(755 ILCS 5/4a-30 new) |
Sec. 4a-30. No independent duty. The rebuttable |
presumption set forth in Section 4a-10 of this Article applies |
only in a civil action in which a transfer instrument is being |
challenged, and does not create or impose an independent duty |
on any financial institution, trust company, trustee, or |
similar entity or person related to any transfer instrument.
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(755 ILCS 5/4a-35 new) |
Sec. 4a-35. Applicability. This Article applies only to |
transfer instruments executed after the effective date of this |
amendatory Act of the 98th General Assembly.
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