On February 9, 2017, Representative Bill Mitchell of Decatur, introduced HB3089 to the Illinois House of Representatives. The proposed legislation would amend the Probate Act of 1975, by adding an additional subsection to 755 ILCS 5/18-3, which provides the notice requirements for probate estates. This bill has not yet cleared the House of Representatives, as it was referred to the Rules Committee on March 31, 2017, which is where it currently stands.
Section 18-3 of the Probate Act of 1975 states the current requirements for notice of probate estates. Most probate attorneys are already familiar with these requirements: Publication of creditor notice for three consecutive weeks in the county where the estate is being administered, and mailing direct notice to any known or reasonably ascertainable creditors. HB 3089 would add an additional subsection which would require direct notice be sent to the Illinois Department of Healthcare and Family Services (DHS) if the decedent was 55 years of age or older or resided in a nursing facility or other medical institution. HB 3089 further provides that the notice be sent to the Bureau of Collections at the Chicago office of the Department, and must include a copy of the underlying petition as well as the decedent’s social security number and date of birth.
There are a few interesting pieces of this proposed legislation which are worth examining. The first is the number of probate estates this would impact. Presumably, a large number of decedents are over age 55 at the time of death. Furthermore, the notice would also be required for any decedent (regardless of age) who “resided in a nursing facility or other medical institution.” The concern with this language is that it is broad and undefined. Does it apply for a decedent who ever resided in a nursing home, or just resided there at the time of death? What is considered a “medical institution?” Does it apply for assisted living facilities, rehab, or extended hospital stays? If this legislation passes, the best practice for attorneys may simply be to send the notice to DHS for every probate estate opened.
Another interesting aspect of this bill is the lack of any mention of the decedent being a Medicaid recipient. Presumably, one of the reasons for initiating this legislation is for the State of Illinois to try and recover some money owed by decedents who were receiving Medicaid. This would make sense given the current uncertainty of future funding for Medicaid. However, if that is truly the intention of the bill, one would think it would be specifically referenced in the legislation.
Although HB3089 seems well intentioned, there are a few parts which appear ambiguous or overly-broad. If the bill does become law, probate attorneys would be wise to take a “better safe than sorry approach” for complying with the notice requirements. It wouldn’t hurt for the attorney to go ahead and send notice directly to DHS regardless of whether they believe a particular decedent qualifies for the additional notice.