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Statutory Custodial Claims Explained | Caregiver Claims in Illinois Probate

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Article written by Attorney Kevin O'Flaherty
Updated on
November 1, 2019

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.   

Who Can Make a Statutory Custodial Claim in Probate?

In order to be eligible to make a statutory custodial claim in probate, three things must all be true:

  1. The claimant must be the spouse, parent, brother, sister, or child of the decedent;
  2. The decedent must have had a disability for at least 3 years; and
  3. The claimant must have lived with and personally cared for the decedent for at least 3 years.  

How Much is Awarded for an Illinois Statutory Custodial Claim?

In determining the amount of the statutory custodial claim to award a qualifying caregiver, the court will take into consideration several factors including:

  • The nature and extent of the decedent’s disability;
  • The claimant’s lost employment opportunities as a result of the care given;
  • The claimant’s lifestyle sacrifices; and
  • Emotional distress experienced by the claimant as a result of the care given to the decedent.

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:

  • 100% disability: $180,000
  • 75% disability: $135,000
  • 50% disability: $90,000
  • 25% disability: $45,000

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:

  • Whether the living situation was intended to provide the claimant with free or low cost housing;
  • Whether the living situation was intended to make it unnecessary for the claimant to obtain full time employment;
  • Whether any other financial benefits were provided to the claimants based on the living situation;
  • Whether the claimant received personal care from the decedent or others as a result of the living situation; and
  • The proximity in time of the care provided by the claimant to the decedent’s death.

What Priority Does an Illinois Statutory Custodial Claim Receive in Illinois Probate?  

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.

Presumptively Void Transfers to Caregivers 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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