Effective in 2015, the Illinois Probate Act, Article IVa, now provides that certain transfers to caregivers are presumptively void.
A “caregiver” is defined as “a person who voluntarily, or in exchange for compensation, has assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living.” Also treated as caregivers under this article are the spouse, cohabitant, child, or employee of a caregiver.
The legislation provides that in any civil action where a transfer instrument is challenged, there is a rebuttable presumption that the transfer instrument is void if the transfer is to a caregiver and the fair market value of the transferred property exceeds ,000.
Hence, instead of a deceased person’s heirs having to prove that a caregiver exercised undue influence over the deceased and procured a will, trust, or similar document in favor of the caregiver, the burden of proof shifts to the caregiver.
However, family members of the person receiving assistance -- spouses, children, grandchildren, siblings, aunts, uncles, nieces, nephews, first cousins, and parents – are excluded from the definition of “caregiver” for purposes of this article.
The documents to which this law pertains are “transfer instruments” – that is, legal documents intended to effectuate a transfer effective on or after the transferor's death, such as wills, trusts, deeds, forms designated as payable on death, contracts, and other beneficiary designation forms – but only if the transfer instrument was signed on or after January 1, 2015, the effective date of the law.
Meanwhile, another person whose estate amounts to, say, million, might write a will leaving .9 million to family members and 0,000 to a trusted caregiver; in such a case, the family members might choose to take advantage of the presumption and challenge the will, in which case the caregiver would have the burden of proof to show that he or she did not use fraud, duress, or undue influence to have the deceased make such a gift – even though the caregiver would only be receiving 1% of the deceased’s estate in such a situation.Accusations of undue influence may most often be found when a testator’s mental state was in decline at the time that he or she executed a will or trust, but not all such cases raise those implications.The Estate of Hoover case itself involved a testator who was found to have been mentally competent, but who was suspected of having signed codicils to his will under improper influence, where other relatives had allegedly made “a calculated series of lies, misrepresentations, and omissions” about his son’s character to persuade him to disinherit the son.For several years, Illinois law has prohibited persons who have been convicted of financial exploitation, abuse, or neglect of an elderly person or a person with a disability from receiving any property, benefit, or other interest by reason of the death of that elderly person or person with a disability.More recently, the prohibition has been expanded to impose a similar prohibition on persons who have been found civilly liable of financial exploitation of the elderly or disabled person – an easier standard of proof compared to requiring a criminal conviction.