ISBA Statehouse Review for the week of April 10, 2014

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers Presumptively Void Transfers in Probate Act (Senate Bill 1048), Condominiums and common-interest communities (House Bill 4204), Business Corporation Act of 1983 (Senate Bill 1098), Business Corporation Act of 1983 (Senate Bill 1099), Parenting time (House Bill 5425) and Parenting time (House Bill 4124). More information on each bill is available below.

Presumptively Void Transfers in Probate Act. Senate Bill 1048 (Harmon, D-Oak Park) creates a new section in the Probate Act entitled “presumptively void transfers.” It applies to caregivers who, either as a result of family relationship, voluntarily, or in exchange for compensation, have assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living. It applies to “transfer instruments” that includes a will, trust, deed, form designated as payable on death, contract, or other beneficiary designation form. It presumes, with some exceptions, that a transfer instrument is presumed to be void if the transferee is a caregiver, or a person related to a caregiver, and the fair market value of the transferred property exceeds $20,000. It has some exceptions, which are as follows: (1) if the transferee establishes by clear and convincing evidence that the transfer was not the product of fraud, duress, or undue influence. But it prohibits the court from making that determination solely upon the testimony of the caregiver. (2) If the transfer instrument was reviewed by an “independent attorney” who signs and delivers a statutory certificate of review. (3) If the transferee’s share under the transfer instrument is less than the share the transferee was entitled to under the transferor’s testamentary plan in effect before the transferee became a caregiver. If the caregiver attempts and fails to overcome the presumption under this section, the caregiver must bear the cost of the proceedings, including, without limitation, reasonable attorney’s fees.

Condominiums and common-interest communities. House Bill 4204 (Nekritz, D-Buffalo Grove) creates the Condominium and Common-Interest Community Ombudsperson Act. It creates a state office entitled the Office of the Condominium and Common-Interest Community Ombudsperson within the Department of Financial and Professional Regulation. After July 1, 2017, the ombudsperson shall offer training, educational materials, and courses to unit owners, associations, board of managers, and boards of directors in subjects relevant to the operation and management of condominiums and common interest communities and the respective Acts under each. It requires each association to adopt a written policy for resolving complaints made by unit owners. Unit owners may make a written request under this Act to the ombudsperson for assistance in resolving a dispute between a unit owner and an association that involves a violation of either the Condominium Property Act or the Common-Interest Community Property Act. The assistance of the section is available only to unit owners. The department must promulgate a rule assessing nonrefundable fees for the administration and enforcement of this act. House Bill 4604 is awaiting final passage in the House.

Business Corporation Act of 1983. Senate Bill 1098 (Harmon, D-Oak Park) provides that the dissolution of a corporation does not impair a civil remedy available to or against the corporation for any liability accrued or incurred (rather than incurred) either before, at the time of, or after (rather than before) the dissolution. Provides that this provision does not extend any applicable statute of limitations. Awaiting passage in the Senate.

Business Corporation Act of 1983. Senate Bill 1099 (Harmon, D-Oak Park) amends this Act affecting director and officer liability if the entity has been dissolved. It provides that directors, officers, and others are not liable for liabilities incurred during periods of administrative dissolution if the entity is reinstated. Makes similar changes to the General Not For Profit Corporation Act of 1986, Limited Liability Company Act, and Uniform Limited Partnership Act (2001). Passed the Senate and now in the House.

Parenting time. House Bill 5425 (Cabello, R-Rockford) creates three legislative presumptions in the Marriage Act affecting parenting time. (1) It creates a presumption in the purposes and rules of construction section that Illinois recognizes that the involvement of each parent for equal time and not less than 35% of residential parenting time per week is presumptively in the child’s best interests. (2) In the custody section, it creates a presumption that it is in the child’s best interests to award equal time to each parent. (3) But if the court doesn’t find it in the best interests to award equal time or not possible, “a minimum of 35% residential timer per week should be ordered for the non-custodial parent.” House Bill 5425 is on third reading in the House. The proponents testified that this bill was necessary because judges were refusing or failing to award equitable parenting time for both parents with their child or children.

Parenting time. House Bill 4124 (Kelly Burke, D-Evergreen Park) makes a legislative finding in the purpose and rules of construction section of the Marriage Act that to maximize the opportunity for each child to maintain and strengthen the child’s relationship with each parent, the child’s best interests may be served with a minimum amount of residential parenting time for each parent of not less than 35% of available residential parenting time. But this presumption regarding the minimum percentage of parenting time shall not, in and of itself, constitute a reason for deviation from the child support guidelines.