from FB: Changes from 2016 to the Illinois Probate Act

It would be nice if the Act required all GALs to be recorded when they have contact with the disabled person, but maybe next time.


A number of new laws took effect in Illinois at the beginning of 2016. Among them were a few that involved the Illinois Probate Act of 1975 (755 ILCS 5/) and other laws that affect estate planning, trusts and disabled individuals. Some of these modifications brought dramatic changes to these areas of law that are essential for practitioners to understand. Here are the citations and short summaries about the 2016 changes:

What Illinois Laws Affecting Estate Planning Were Updated for 2016?

    • Probate Disabled Persons Wills [755 ILCS 5/4-1] – This legislation amends the definition of the capacity of a testator who has been adjudicated as disabled. Under this amendment, there is now a rebuttable presumption that voids a codicil or will if its testator was found to be disabled at the time it was created or amended. However, the rebuttable presumption would not be valid if the court authorized the creation of the codicil or will. In addition, if the rebuttable presumption does apply, it takes clear and convincing evidence that the testator had the capacity to create or amend the will or codicil to overcome it.


    • Probate Temp Adult Guardians [755 ILCS 5/11a-4] – This amends the Illinois Probate Act to expand the powers of temporary guardians of disabled adults, providing them with a limited version of the duties and powers of a permanent guardian.


    • Probate Rights of Posthumous Children [755 ILCS 5/2-3] – This new law involves a change to the Illinois Probate Act due to a complete rewrite of a portion of the Illinois Parentage Act of 2015. This amendment clarifies when posthumous children (children who are born or conceived after the death of one parent) are considered to legally be children of a decedent as it pertains to inheritance. Under this new law, in Illinois, posthumous children are only considered children of a decedent if the child was in utero at the time the decedent passed away. As such, a child that is born via implantation after a decedent’s death through the use of frozen sperm or frozen embryos would not be considered the decedent’s child as it pertains to inheritance purposes.


    • Illinois ABLE Accounts for Disabled Individuals [15 ILCS 505/16.6] – This will allow disabled individuals in Illinois to create Achieving a Better Life Experience (ABLE) accounts, which are savings accounts that enable the disabled to save up to $100,000 in a tax-free fund. The fund can be used to pay for certain disability expenses without risk of disqualifying disabled individuals from receiving SSI, SSDI and Medicaid.


    • Probate Citations Recover [755 ILCS 5/16-1] – This new law increases the court’s ability to issue citations for the appearance of those who have or may have had assets in their possession that belong to the estate of a ward or who may otherwise be liable to the ward’s estate pursuant to a civil action.


  • Certification of Trust Form [760 ILCS 5/8.5] – This paves the way for the creation of a Certification of Trust Form that can be given to third parties instead of a complete copy of the trust instrument. Certification of Trust Forms are basically a couple of pages long and only include dispositive information as opposed to full copies of trust instruments. The full copies typically are over 25 pages and include both information a third party needs as well as information that might be better left private.
  • Foreclosure Special Representative [735 ILCS 5/15-1501(h)] – This amendment eliminated the requirement for a special representative to be appointed for a mortgagor who has passed away in certain situations involving foreclosure. Under this new law, as part of the procedure to foreclose on a mortgagor who has died, a special representative will not have to be appointed for the deceased mortgagor if: (1) the mortgage property title was conveyed to a trust before the mortgagor died, (2) a beneficiary is designated in a transfer on death instrument, (3) the title of the mortgage property has already gone through the probate estate transfer process or (4) the property’s title was conveyed to an entity or person(s) prior to death.

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