What are Void Transfers?

Caregivers who provide assistance to incapacitated people serve a vitally important role, whether it is in a part time or full time capacity. Under Illinois law, a caregiver is defined as “a person who voluntarily, or in exchange for compensation, has assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living.” With this responsibility, though, comes an implicit trust that the caregiver will do right by the person he or she is helping.

Unfortunately, this is not always the case and caregivers do not always act in the best interest of the person they are tasked with helping. Financial exploitation is one such violation of trust, which is not only illegal, but can wreak havoc on the lives of the people relying on assistance, as well as their family members. The Illinois Legislature has therefore given recourse for a particularly insidious form of exploitation: when a caregiver induces an incapacitated person to give them their money upon death.

Presumptively Void Transfers

Under Illinois law, there is a legal presumption that any “transfer instrument” to a caregiver that has a fair market value exceeding $20,000 is void. A transfer instrument is a legal document that transfers property to another person upon death, such as a will, trust, deed, contract, or beneficiary designation. In other words, the law views any will, trust, contract, or beneficiary designation that gives a caregiver more than $20,000 as suspicious and worthy of invalidation.

It is noteworthy that in addition to the actual person providing care, a “caregiver” includes a caregiver’s spouse, children, partner, roommate, or employee. The definition is broad so to encompass any scheme to avoid the law by transferring property to someone else on the caregiver’s behalf. A caregiver does NOT, however, include the family members of the person receiving assistance. Family members include the “spouse, child, grandchild, sibling, aunt, uncle, niece, nephew, first cousin, or parent of the person receiving assistance.”

A transfer to a caregiver can be raised in any proceeding in which a transfer instrument is being challenged, but must generally be filed within 2 years of the decedent’s death. If a transfer instrument is found to be void, not only does it void the transfer of property, but the caregiver becomes liable for attorney’s fees.

Rebutting the Presumption

There are defenses that a caregiver must prove to overcome the void transfer rule, including by a “preponderance of the evidence” that the caregiver was already set to receive property in a transfer instrument prior to become a caregiver, and what they actually received does not exceed what they were originally designated to receive. The caregiver may also overcome the presumption if they can demonstrate at the higher burden of proof—“clear and convincing evidence”—that the transfer instrument was “not the product of fraud, duress, or undue influence.”

Contact a Probate Attorney

Financial exploitation is a gross violation of trust and a serious matter with grave financial consequences. If you believe that this is happening or has happened with a family member’s will or estate, you need to seek help. I have practiced in the areas of probate, estate planning, and taxation for over two decades and can help you determine whether you have a legal claim. Contact The Law Offices of Robert S. Thomas at 847-392-5893 to schedule an appointment or visit our website today.

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