The purpose of this article is to explain statutory custodial claims in Illinois probate cases. Statutory custodial claims are claims for payment from a deceased person’s probate estate that can be made by certain caregivers to the deceased (“the decedent”). Statutory custodial claims are created and governed by 755 ILCS 5/18-1.1, part of the Illinois Probate Act.
In order to be eligible to make a statutory custodial claim in probate, three things must all be true:
In determining the amount of the statutory custodial claim to award a qualifying caregiver, the court will take into consideration several factors including:
The minimum amounts to award for a statutory custodial claim, assuming sufficient assets are available in the estate, depend on the extent of the decedent’s disability. The statutory minimums are as follows:
The amount of the statutory custodial claim can be reduced by the court if the fact of the claimant’s living with decedent was intended to and did actually provide a benefit to the claimant. In determining whether the claimant benefited from the living situation, the court will weigh the following factors:
Statutory custodial claims receive first priority along with funeral and burial expenses and the expenses of the probate proceeding. This means that, if the estate has insufficient assets to pay all of the claims filed against it, statutory custodial claims, funeral expenses, and probate expenses will be paid in full prior to any other types of claims being paid.
If there are not enough assets to pay all of the claims in this first class of claims, all of the claims in the class will be paid pro rata, meaning that they will each receive the same percentage of payment from the estate.
You can learn more about the priority of probate claims, the process of filing a probate claim, and the process of litigating disputed claims in our article: Illinois Probate Claims Explained.
Statutory custodial claims are only available to family-member caregivers. The Probate Act makes it very difficult for non-family caregivers to receive bequests in the estate plan of the decedent. The Probate Act Section 755 ILCS 5/4-a provides that gifts to a non-family caregiver in a will, trust or beneficiary designation in excess of $20,000.00 are presumptively void and ineffective. This means that, if the gift is challenged, the burden is on the recipient to prove that the gift was not a result of fraud, duress or undue influence. If the recipient caregiver is unable to prove that the gift was given freely by the decedent, the recipient is responsible for the challenger’s attorney fees.
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