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Wish to Leave Money to a Caregiver in a Will?

The Illinois legislature has updated its probate law that will affect a caregiver in a will and people who wish to leave gifts of money over $20,000 to a caregiver at the time of death. The probate code has a list of “Presumptively Void Transfers,” which are transfers of money or property at the time of death that a probate court will consider void in a testimonial will.

However, it is a rebuttable presumption, meaning the transfer will stand if the caregiver can prove to the court that the gift was not a product of fraud, duress or undue influence. This must be demonstrated by “clear and convincing” evidence, which is a fairly high burden of proof in probate court.

The new statute can be found at 755 ILCS 5, et seq., specifically Article IV.a “Presumptively Void Transfers.”

What Does the New Law About Wills Mean for Caregivers?

In plain English, this new law means that unless a will is drafted with certain specifics and with necessary evidence, the executor of a will or the probate court itself can decide to not give the caregiver the gift left for him or her in the will. This means the caregiver, who likely spent a lot of time, effort and love with the person who passed away, will not receive the gift of money or property he or she should have gotten under the will.

What is the Point of this New Illinois Probate Law?

The point of this new law is to protect elderly people and ill people from a caregiver forcing them or improperly influencing them to leave money after death. This is a valid concern, as some (not all, of course) caregivers might engage in this type of financial elder abuse. However, most caregivers are dedicated, wonderful people, taking care of an elderly or sick person who truly wishes to leave them a well-deserved gift in the will.

How Can a Person Leave a Valid Gift of Money to a Caregiver?

This new law makes it even more essential for people writing wills to have a qualified estate planning lawyer assist them in drafting and executing testimonial wills. If you wish to leave a gift to a caregiver, consult with an Illinois estate planning attorney to ensure your will and gift will stand after death. An estate planning lawyer can draft the will in a certain way and include the requisite evidence needed to rebut the presumption and overcome this challenge to the caregiver gift.

With a qualified lawyer, you can be sure your caregiver gets exactly what you want him or her to receive, without having the gift be challenged in probate court after death.

MacDonald, Lee & Senechalle, Ltd. is a law firm with Illinois estate planning attorneys with offices in Hoffman Estates and Des Plaines, serving the greater Chicagoland area.

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