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ISBA Statehouse Review for the week of March 26, 2015

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. This week he covers Presumptions in probate (Senate Bill 90), Guardianships for minors (Senate Bill 786), Temporary guardianships (House Bill 2505), Unfounded reports (Senate Bill 1335), Uniform Fiduciary Access to Digital Assets Act (House Bill 4131) and Presumptively Void Transfers (House Bill 3325). More information on each bill is available below the video.

Presumptions in probate. Senate Bill 90 (Silverstein, D-Chicago) 1975 creates a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled. 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, and that the rebuttable presumption does not apply if the will or codicil was executed in compliance with a court order.

The court may enter an order authorizing the ward to execute a will or codicil if a verified petition by the plenary or limited guardian of the estate or the request of the ward is accompanied by a current physician’s report that states the ward possesses testamentary capacity. Provides that 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. This subsection applies only to wills or codicils executed or modified after the effective date of this act. On second reading in the Senate after passing out of Senate Judiciary Committee.

Guardianships for minors. Senate Bill 786 (Hunter, D-Chicago) makes it the duty of the petitioner to give notice of the time and place of the hearing on the petition for appointment of a standby guardian or a guardian of a minor not less than seven (instead of three) days before the hearing. Provides that any order for removal, including one incorporated into the guardianship order, must include the date of the removal, the reason for removal, and the proposed residential and mailing address of the minor after removal. Provides that a copy of the order must be provided to any parent whose location is known, within three days of entry, either by personal delivery or by certified mail, return receipt requested. On third reading in the Senate after passing out of Senate Judiciary Committee.

Temporary guardianships. House Bill 2505 (Harris, R-Arlington Heights) amends the Probate Act of 1975 to provide that a temporary guardian has the limited powers and duties (instead of “all of the powers and duties”) of a guardian of the person or of the estate that are specifically enumerated by court order. On second reading in the House after passing out of House Judiciary Committee.

Unfounded reports. Senate Bill 1335 (Lightford, D-Chicago) authorizes state’s attorneys to receive unfounded reports of child abuse or neglect to screen and prosecute a subsequent allegation of abuse or neglect relating to the same child, sibling of the child, or the same perpetrator. Allows the unfounded report to be admissible in prosecuting a petition for abuse or neglect in those circumstances. On second reading in the Senate after passing out of Senate Judiciary Committee.

Uniform Fiduciary Access to Digital Assets Act. House Bill 4131 (Evans, D-Chicago) and Senate Bill 1376 (Hastings, Matteson) create this Act. Provides procedures and requirements for the access and control by guardians, executors, agents, and other fiduciaries to the digital assets of persons who are deceased, under a legal disability, or subject to the terms of a trust. Senate Bill 1376 is on third reading in the Senate, and House Bill 4131 is assigned to House Judiciary Committee.

Presumptively Void Transfers. House Bill 3325 (Williams, D-Chicago) amends the Presumptively Void Transfers Article of the Probate Act of 1975 to redefine terms. If the property in question is an interest in real property, a purchaser or mortgagee for value and without notice, before the recordation of a lis pendens for an action, shall take free and clear of the action. In House Rules Committee.

Posted on March 26, 2015 by Chris Bonjean
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