Elder abuse is a serious problem in the United States. Illinois has a new legal weapon to fight elder abuse. Effective January 1, 2015 a new section in the Illinois Probate Code entitled “Presumptively Void Transfers” (755ILCS 5/4a-1 O(a)) went into effect. It provides a new legal tool to right the wrong if an elder or disabled person has been affected by improper transfer of assets.
This law applies to care givers who obtain the transfer of property in excess of $20,000 (aggregate gifts). The law creates a presumptive wrongful transfer if a non-family care giver receives a transfer of property if the transfer is to a care giver who is not a “family member” (a spouse, child, grandchild, sibling, aunt, uncle, niece, nephew, first cousin or parent). For purposes of this statute, a “care giver” is someone other than the foregoing, who provided care, including assistance for daily activities regard less of whether the care giver was paid or not. A care giver may include helpful friends, neighbors, step-children and “in-laws”.
A transfer may occur directly or indirectly. It may occur by legal document (i.e. Will, Trust, Deed, POD, etc.). But the law applies to transfers that are to take effect upon death, not lifetime gifts.
A “transfer of property” may include a combination of amounts passing to the care giver, it apparently does not need to be a single transfer in excess of $20,000.
The statute creates a rebuttable presumption that a care giver receiving such a death benefit must prove by clear and convincing evidence that the transfer was not the result of fraud, duress or undue influence or that the recipient's share under the transfer is not greater than that which the beneficiary would have received through an effective previously executed or statutory benefit prior to becoming the care giver.
There is a time limit however to challenge such transfers, generally two years, unless an estate has been established or a trust created and then a six month time limit applies. A person may challenge a transfer, and the challenger may be an interested person (i.e. someone who would receive a request or inheritance from the decedent by operation of a Last Will or intestate and who's inheritance was decreased by a “challenged transfer”.
If there is a challenge to a care giver who improperly receives property, then there is a cost shipping aspect to the statute. The care giver who loses such a “challenge”may incur the cost of attorney fees for the challenger's attorney.
Any testamentary gift to a non-family member should be scrutinized as a possible presumptive void transfer (i.e. a non-family member, unmarried partner, spouse of a child, step-child, in-law, friend or neighbor). Gifts of $20,000 or less in a Will or Trust should be scrutinized as a possible presumptive improper transfer , because the statute aggregates gifts made to the care giver beneficiary under the transfer of a Will or Trust as well as to other means that were put into effect either prior or after the time the Last Will was signed, but become effective at the time of death (i.e. a life insurance policy, POD account).
This statute known as the “presumptively void transfer” section of the Illinois Probate Code may be an effective tool to combat undue influence by unrelated care givers. It is also something that the estate planner will need to be aware of in order to shape proper legitimate testamentary gifts through a Last Will & Testament or other testamentary documents that will help to protect a proper gift or request.