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This question came from one of our users:
"Are statutory custodial claims subject to the two-year deadline for filing?"
Statutory custodial claims are governed by the Illinois Probate Act (the “Act”). While the Act does not give a deadline, the claim may be subject to the two-year statute of limitations imposed on other types of claims, just as personal injury claims or the courts may treat these as claims against the estate, which must be filed within the six (6) month claims period.
What is a Statutory Custodial Claim?
Under the Act, “a spouse, parent, sibling, or child of a deceased person with a disability who, during the decedent’s life, dedicated himself or herself to the care of the decedent by living with and personally caring for the decedent for at least three years is entitled to a claim against the decedent’s estate. 755 ILCS 5/18/1.1.
What are the Requirements for a Claim?
There are four requirements that a qualified family member must meet:
- Dedicate themselves to the decedent’s care
- By living with and
- Personally caring for the decedent
- For at least three years.
Illinois courts have strictly enforced requirements 2 and 4, but are less stringent with the other two requirements.
What Does Living With Entail?
You must live in the same home or apartment unit as the decedent. If you live in another unit across the hall, that will not meet this requirement. Visiting the decedent several times a week will not qualify as living with the decedent.
Three Years
The three-year period does not need to be continuous, but it must be three full years during which the person lived with the decedent.
Care of Decedent
You do not have to provide all of the care of the decedent, and the decedent’s care does not have to be physical in nature. A constant presence and oversight of hired caregivers could be sufficient. The court will consider several factors, including lost employment opportunities, lost lifestyle opportunities, and emotional distress resulting from caring for the decedent. More than one family member can make a claim.
How Much Can You Seek?
The amount you can claim is based on the nature and extent of the decedent’s disability. These claims are subject to the amount of assets in the estate that are available. The minimum amounts are:
100% disability—$180,000
75% disability—$135,000
50% disability—$90,000
25% disability—$45,000
The court can increase these amounts depending on specific factors that the court will consider. The court can also decrease the amount in certain situations. The claimant may have tax consequences from any award received.
Designed for general information use only. The content above does not constitute legal advice or the formation of an attorney/client relationship.
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