SB0090 EngrossedLRB099 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. The rebuttable presumption is overcome 
15by clear and convincing evidence that the testator had the 
16capacity to execute the will or codicil at the time the will or 
17codicil was
executed. The rebuttable presumption does not apply 
18if the will or codicil was completed in
compliance with 
19subsection (d-5) of Section lla-18 of this Act. This subsection 
20(b) applies only to wills or codicils executed or modified 
21after the effective date of this amendatory Act of the 99th 
22General
Assembly.
23(Source: P.A. 80-808.)





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



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

3 (a) To the extent
specified in the order establishing the 
4guardianship, the guardian of
the estate shall have the care, 
5management and
investment of the estate, shall manage the 
6estate frugally and shall
apply the income and principal of the 
7estate so far as necessary for the
comfort and suitable support 
8and education of the ward, his minor and adult
dependent 
9children, and persons related by blood or marriage
who are 
10dependent upon or entitled to support from him, or for any 
11other
purpose which the court deems to be for the best 
12interests of the ward,
and the court may approve the making on 
13behalf of the ward of such
agreements as the court determines 
14to be for the ward's best interests.
The guardian may make 
15disbursement of his ward's
funds and estate directly to the 
16ward or other distributee or in such
other manner and in such 
17amounts as the court directs. If the estate of
a ward is 
18derived in whole or in part from payments of compensation,

19adjusted compensation, pension, insurance or other similar 
20benefits made
directly to the estate by the Veterans 
21Administration, notice of the
application for leave to invest 
22or expend the ward's funds or estate,
together with a copy of 
23the petition and proposed order, shall be given
to the 
24Veterans' Administration Regional Office in this State at least 
257
days before the hearing on the application.

 
 
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1 (a-5) The probate court, upon petition of a guardian, other 
2than the
guardian of a minor, and after notice to all other 
3persons interested as the
court directs, may authorize the 
4guardian to exercise any or all powers over
the estate and 
5business affairs of the ward that the ward could exercise if

6present and not under disability. The court may authorize the 
7taking of an
action or the application of funds not required 
8for the ward's current and
future maintenance
and support in 
9any manner approved by the court as being in keeping with the

10ward's wishes so far as they can be ascertained. The court must 
11consider the
permanence of the ward's disabling condition and 
12the natural objects of the
ward's bounty. In ascertaining and 
13carrying
out the ward's wishes the court may consider, but 
14shall not be limited to,
minimization of State or federal 
15income, estate, or inheritance taxes; and
providing gifts to 
16charities, relatives, and friends that would be likely

17recipients of donations from the ward. The ward's wishes as 
18best they can be
ascertained shall be carried out, whether or 
19not tax savings are involved.
Actions or applications of funds 
20may include, but shall not be limited to, the
following:


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


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


 
 
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1  (3) releasing or disclaiming his or her powers as 
2 trustee, personal
representative, custodian for minors, or 
3 guardian;


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


6  (5) entering into contracts;


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


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


12  (8) exercising the rights of the ward to elect benefit 
13 or payment
options, to terminate, to change beneficiaries 
14 or ownership, to assign
rights, to borrow, or to receive 
15 cash value in return for a surrender of
rights under any 
16 one or more of the following:


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


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


19   (iii) mutual fund and other dividend investment 
20 plans,


21   (iv) retirement, profit sharing, and employee 
22 welfare plans and
benefits;


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


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


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

6 The guardian in his or her petition shall briefly outline 
7the action or
application of funds for which he or she seeks 
8approval, the results expected
to be accomplished thereby, and 
9the tax savings, if any, expected to accrue.
The proposed 
10action or application of funds may include gifts of the ward's

11personal property or real estate, but transfers of real estate 
12shall be subject
to the requirements of Section 20 of this Act. 
13Gifts may be for
the benefit of prospective legatees, devisees, 
14or heirs apparent of the ward
or may be made to individuals or 
15charities in which the ward is believed to
have an interest. 
16The guardian shall also indicate in the petition that any

17planned disposition is consistent with the intentions of the 
18ward insofar as
they can be ascertained, and if the ward's 
19intentions cannot be ascertained,
the ward will be presumed to 
20favor reduction in the incidents of various forms
of taxation 
21and the partial distribution of his or her estate as provided 
22in
this subsection. The guardian shall not, however, be 
23required to include as
a beneficiary or fiduciary any person 
24who he has reason to believe would be
excluded by the ward. A 
25guardian shall be required to investigate and pursue
a ward's 
26eligibility for governmental benefits.

 
 
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1 (b) Upon the direction of the court which issued his 
2letters,
a guardian may perform the contracts of his ward which 
3were
legally subsisting at the time of the commencement of the 
4ward's
disability. The court may authorize the guardian to 
5execute and deliver
any bill of sale, deed or other instrument.

6 (c) The guardian of the estate of a ward shall
appear for 
7and represent the ward in all legal proceedings unless another

8person is appointed for that purpose as guardian or next 
9friend. This does not
impair the power of any court to appoint 
10a guardian ad litem or next friend
to defend the interests of 
11the ward in that court, or to appoint or allow any
person as 
12the next friend of a ward to commence, prosecute or defend any

13proceeding in his behalf. Without impairing the power of the 
14court in any
respect, if the guardian of the estate of a ward 
15and another person as next
friend shall appear for and 
16represent the ward in a legal proceeding in which
the 
17compensation of the attorney or attorneys representing the 
18guardian and
next friend is solely determined under a 
19contingent fee arrangement, the
guardian of the estate of the 
20ward shall not participate in or have any duty
to review the 
21prosecution of the action, to participate in or review the

22appropriateness of any settlement of the action, or to 
23participate in or review
any determination of the 
24appropriateness of any fees awarded to the attorney or

25attorneys employed in the prosecution of the action.

26 (d) Adjudication of disability shall not revoke or

 
 
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1otherwise terminate a trust which is revocable by the ward. A 
2guardian of the
estate shall have no authority to revoke a 
3trust that is revocable by the
ward, except that the court may 
4authorize a guardian to revoke a Totten trust
or similar 
5deposit or withdrawable capital account in trust to the extent

6necessary to provide funds for the purposes specified in 
7paragraph (a) of
this Section. If the trustee of any trust for 
8the benefit of the ward has
discretionary power to apply income 
9or principal for the ward's benefit,
the trustee shall not be 
10required to distribute any of the income or principal
to the 
11guardian of the ward's estate, but the guardian may
bring an 
12action on behalf of the ward to compel
the trustee to exercise 
13the trustee's discretion or to seek relief from
an abuse of 
14discretion. This paragraph shall not limit the right of a

15guardian of the estate to receive accountings from the trustee

16on behalf of the ward.

17 (d-5) Upon a verified petition by the plenary or limited 
18guardian of the estate or the request of the ward that is 
19accompanied by a current physician's report that states the 
20ward possesses testamentary capacity, the court may enter an 
21order authorizing the ward to execute a will or codicil. In so 
22ordering, the court shall authorize the guardian to retain 
23independent counsel for the ward with whom the ward may execute 
24or modify a will or codicil. 
25 (e) Absent court order pursuant to the Illinois Power of 
26Attorney
Act directing a guardian to exercise
powers of the 
 
 
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1principal under an agency that survives disability, the

2guardian will have no power, duty or liability with respect to 
3any property
subject to the agency. This subsection (e) applies 
4to all agencies,
whenever and wherever executed.

5 (f) Upon petition by any interested person (including the 
6standby or
short-term guardian), with such notice to interested 
7persons as the court
directs and a finding by the court that it 
8is in the best interest of the
disabled person, the court may 
9terminate or limit the authority of a standby or
short-term 
10guardian or may enter such other orders as the court deems 
11necessary
to provide for the best interest of the disabled 
12person. The petition for
termination or limitation of the 
13authority of a standby or short-term guardian
may, but need 
14not, be combined with a petition to have another guardian

15appointed for the disabled person.

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