Public Act 099-0302

SB0090 Enrolled LRB099 05209 HEP 25243 b

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

Sections 4-1 and 11a-18 as follows:

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

Sec. 4-1. Capacity of testator.)

(a) Every person who has attained the age of 18 years and

is of sound mind and memory has power to bequeath by will the

real and personal estate which he has at the time of his death.

(b) Except as stated herein, there is a rebuttable

presumption that a will or codicil is void if it was executed

or modified after the testator is adjudicated disabled under

Article XIa of this Act and either (1) a plenary guardian has

been appointed for the testator under subsection (c) of Section

11a-12 of this Act or (2) a limited guardian has been appointed

for the testator under subsection (b) of Section 11a-12 of this

Act and the court has found that the testator lacks

testamentary capacity. The rebuttable presumption is overcome

by clear and convincing evidence that the testator had the

capacity to execute the will or codicil at the time the will or

codicil was executed. The rebuttable presumption does not apply

if the will or codicil was completed in compliance with

subsection (d-5) of Section lla-18 of this Act. This subsection

(b) applies only to wills or codicils executed or modified

after the effective date of this amendatory Act of the 99th

General Assembly.

(Source: P.A. 80-808.)

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

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

(a) To the extent specified in the order establishing the

guardianship, the guardian of the estate shall have the care,

management and investment of the estate, shall manage the

estate frugally and shall apply the income and principal of the

estate so far as necessary for the comfort and suitable support

and education of the ward, his minor and adult dependent

children, and persons related by blood or marriage who are

dependent upon or entitled to support from him, or for any

other purpose which the court deems to be for the best

interests of the ward, and the court may approve the making on

behalf of the ward of such agreements as the court determines

to be for the ward's best interests. The guardian may make

disbursement of his ward's funds and estate directly to the

ward or other distributee or in such other manner and in such

amounts as the court directs. If the estate of a ward is

derived in whole or in part from payments of compensation,

adjusted compensation, pension, insurance or other similar

benefits made directly to the estate by the Veterans

Administration, notice of the application for leave to invest

or expend the ward's funds or estate, together with a copy of

the petition and proposed order, shall be given to the

Veterans' Administration Regional Office in this State at least

7 days before the hearing on the application.

(a-5) The probate court, upon petition of a guardian, other

than the guardian of a minor, and after notice to all other

persons interested as the court directs, may authorize the

guardian to exercise any or all powers over the estate and

business affairs of the ward that the ward could exercise if

present and not under disability. The court may authorize the

taking of an action or the application of funds not required

for the ward's current and future maintenance and support in

any manner approved by the court as being in keeping with the

ward's wishes so far as they can be ascertained. The court must

consider the permanence of the ward's disabling condition and

the natural objects of the ward's bounty. In ascertaining and

carrying out the ward's wishes the court may consider, but

shall not be limited to, minimization of State or federal

income, estate, or inheritance taxes; and providing gifts to

charities, relatives, and friends that would be likely

recipients of donations from the ward. The ward's wishes as

best they can be ascertained shall be carried out, whether or

not tax savings are involved. Actions or applications of funds

may include, but shall not be limited to, the following:

(1) making gifts of income or principal, or both, of

the estate, either outright or in trust;

(2) conveying, releasing, or disclaiming his or her

contingent and expectant interests in property, including

marital property rights and any right of survivorship

incident to joint tenancy or tenancy by the entirety;

(3) releasing or disclaiming his or her powers as

trustee, personal representative, custodian for minors, or

guardian;

(4) exercising, releasing, or disclaiming his or her

powers as donee of a power of appointment;

(5) entering into contracts;

(6) creating for the benefit of the ward or others,

revocable or irrevocable trusts of his or her property that

may extend beyond his or her disability or life;

(7) exercising options of the ward to purchase or

exchange securities or other property;

(8) exercising the rights of the ward to elect benefit

or payment options, to terminate, to change beneficiaries

or ownership, to assign rights, to borrow, or to receive

cash value in return for a surrender of rights under any

one or more of the following:

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

(ii) annuity policies, plans, or benefits,

(iii) mutual fund and other dividend investment

plans,

(iv) retirement, profit sharing, and employee

welfare plans and benefits;

(9) exercising his or her right to claim or disclaim an

elective share in the estate of his or her deceased spouse

and to renounce any interest by testate or intestate

succession or by inter vivos transfer;

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

(11) modifying by means of codicil or trust amendment

the terms of the ward's will or any revocable trust created

by the ward, as the court may consider advisable in light

of changes in applicable tax laws.

The guardian in his or her petition shall briefly outline

the action or application of funds for which he or she seeks

approval, the results expected to be accomplished thereby, and

the tax savings, if any, expected to accrue. The proposed

action or application of funds may include gifts of the ward's

personal property or real estate, but transfers of real estate

shall be subject to the requirements of Section 20 of this Act.

Gifts may be for the benefit of prospective legatees, devisees,

or heirs apparent of the ward or may be made to individuals or

charities in which the ward is believed to have an interest.

The guardian shall also indicate in the petition that any

planned disposition is consistent with the intentions of the

ward insofar as they can be ascertained, and if the ward's

intentions cannot be ascertained, the ward will be presumed to

favor reduction in the incidents of various forms of taxation

and the partial distribution of his or her estate as provided

in this subsection. The guardian shall not, however, be

required to include as a beneficiary or fiduciary any person

who he has reason to believe would be excluded by the ward. A

guardian shall be required to investigate and pursue a ward's

eligibility for governmental benefits.

(b) Upon the direction of the court which issued his

letters, a guardian may perform the contracts of his ward which

were legally subsisting at the time of the commencement of the

ward's disability. The court may authorize the guardian to

execute and deliver any bill of sale, deed or other instrument.

(c) The guardian of the estate of a ward shall appear for

and represent the ward in all legal proceedings unless another

person is appointed for that purpose as guardian or next

friend. This does not impair the power of any court to appoint

a guardian ad litem or next friend to defend the interests of

the ward in that court, or to appoint or allow any person as

the next friend of a ward to commence, prosecute or defend any

proceeding in his behalf. Without impairing the power of the

court in any respect, if the guardian of the estate of a ward

and another person as next friend shall appear for and

represent the ward in a legal proceeding in which the

compensation of the attorney or attorneys representing the

guardian and next friend is solely determined under a

contingent fee arrangement, the guardian of the estate of the

ward shall not participate in or have any duty to review the

prosecution of the action, to participate in or review the

appropriateness of any settlement of the action, or to

participate in or review any determination of the

appropriateness of any fees awarded to the attorney or

attorneys employed in the prosecution of the action.

(d) Adjudication of disability shall not revoke or

otherwise terminate a trust which is revocable by the ward. A

guardian of the estate shall have no authority to revoke a

trust that is revocable by the ward, except that the court may

authorize a guardian to revoke a Totten trust or similar

deposit or withdrawable capital account in trust to the extent

necessary to provide funds for the purposes specified in

paragraph (a) of this Section. If the trustee of any trust for

the benefit of the ward has discretionary power to apply income

or principal for the ward's benefit, the trustee shall not be

required to distribute any of the income or principal to the

guardian of the ward's estate, but the guardian may bring an

action on behalf of the ward to compel the trustee to exercise

the trustee's discretion or to seek relief from an abuse of

discretion. This paragraph shall not limit the right of a

guardian of the estate to receive accountings from the trustee

on behalf of the ward.

(d-5) Upon a verified petition by the plenary or limited

guardian of the estate or the request of the ward that is

accompanied by a current physician's report that states the

ward possesses testamentary capacity, the court may enter an

order authorizing the ward to execute a will or codicil. In so

ordering, the court shall authorize the guardian to retain

independent counsel for the ward with whom the ward may execute

or modify a will or codicil.

(e) Absent court order pursuant to the Illinois Power of

Attorney Act directing a guardian to exercise powers of the

principal under an agency that survives disability, the

guardian will have no power, duty or liability with respect to

any property subject to the agency. This subsection (e) applies

to all agencies, whenever and wherever executed.

(f) Upon petition by any interested person (including the

standby or short-term guardian), with such notice to interested

persons as the court directs and a finding by the court that it

is in the best interest of the disabled person, the court may

terminate or limit the authority of a standby or short-term

guardian or may enter such other orders as the court deems

necessary to provide for the best interest of the disabled

person. The petition for termination or limitation of the

authority of a standby or short-term guardian may, but need

not, be combined with a petition to have another guardian

appointed for the disabled person.

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