• Commentary on New Illinois Estate Planning and Probate Laws
  • November 17, 2014 | Author: William P. Ellsworth
  • Law Firm: Chuhak & Tecson, P.C. - Chicago Office
  • Illinois Healthcare Power of Attorney. 755 ILCS 45/4-4.

    The Illinois statute concerning healthcare powers of attorney has recently been modified to alter the statutory form. The law now requires that any new statutory power of attorney for healthcare (as of 1/1/15) recite the statute’s ‘question and answer’ notice section. After the notice section, the principal can format the remainder of the statutory power of attorney for healthcare to the principal’s wishes aso long as the principal otherwise complies with Illinois law. The new law also specifies that the witness necessary to validate a power of attorney must be over the age of 18 and can be employed as a nurse, chaplain or social worker. Finally, the new form simplifies the end of life directions that a principal may provide his or her agent. The previous form allowed for a principal to choose between three end of life directions that gave the agent broad authority, some authority, or no authority to terminate a principal’s medical treatment. The new form now allows a principal to either give his or her chosen agent broad authority or no authority regarding end of life medical treatment. Of course, an individual can create his or her own end of life treatment directions in lieu of the statutory language.

    Small Estate’s Affidavit. 755 ILCS 5/25-1.

    An Illinois small estate’s affidavit may be used as a more cost effective alternative than opening a probate estate in certain situations. The affidavit can be used to transfer a decedent’s assets, provided that the gross value of a decedent’s estate is less than $100,000. This new law tightens up the penalties for abuse of a small estate’s affidavit and applies for decedent’s dying after January 1, 2015. As of January 1, 2015, the affiant must testify explicitly that all creditors have been paid and personally indemnify all persons, including creditors, who rely on the affidavit. The affiant must also now sign the affidavit before a notary public in order to help criminal and civil penalty enforcement against an affiant.

    Virtual Representation. 760 ILCS 5/16.1.

    The new Illinois law within the Trusts and Trustees Act expands the use of settlement agreements in resolving irrevocable trust disputes. This new law should further alleviate the necessity for beneficiaries to resort to the court to resolve their disputes. Instead, a primary beneficiary may now represent an unknown or unborn beneficiary, a minor or disabled beneficiary, or a successor or contingent beneficiary with a substantially similar interest. Previously, this representation was much more restrictive in that the represented party needed to have an identical interest to the acting beneficiary. As of January 1, 2015, if all of the primary beneficiaries can agree, they may modify practically any provision of an irrevocable trust agreement, so long as the amendment does not violate a clear material purpose of the trust. The trustee must then abide by the terms of the agreement as if ordered by a court, but the trustee may obtain an opinion of counsel as to the validity of the agreement and whether it violates the clear material purpose of the trust.