ARTICLE II. CERTIFICATE OF AUTHORITY AND ORGANIZATION
(205 ILCS 620/Art. II heading)
(205 ILCS 620/2-1) (from Ch. 17, par. 1552-1)
Sec. 2-1. (a) Any corporation which has been or shall be incorporated under the general corporation laws of this State for the purpose of accepting and executing trusts, and any state bank, state savings and loan association, state savings bank, or other special corporation now or hereafter authorized by law to accept or execute trusts, may be appointed to act as a fiduciary in any capacity a natural person or corporation may act, and shall include, but not be limited to, acting as assignee or trustee by deed, and executor, guardian or trustee by will, custodian under the Illinois Uniform Transfers to Minors Act and such appointment shall be of like force as in case of appointment of a natural person and shall be designated a corporate fiduciary.
(b) No corporate fiduciary shall dissolve or cease its corporate existence without prior notice to and approval by the Commissioner and compliance with the requirements of Section 7-1 of this Act.
(Source: P.A. 100-863, eff. 8-14-18.)
(205 ILCS 620/2-2) (from Ch. 17, par. 1552-2)
Sec. 2-2. (a) Whenever application shall be made to any court in this State for the appointment of any receiver, assignee, guardian, executor, administrator or other trustee or fiduciary appointed by the court, it shall be lawful for such court to appoint any corporate fiduciary as such trustee, fiduciary, receiver, assignee, guardian, executor or administrator. Provided, any such appointment as guardian shall apply to the estate only, and not to the person.
(b) Any court having appointed and having jurisdiction of any receiver, executor, administrator, guardian, assignee or other trustee or fiduciary appointed by the court, upon the application of such officer, trustee or fiduciary, or upon the application of any person having an interest in the estate administered by such officer, trustee or fiduciary, after such notice to the other parties in interest as the court may direct, and after a hearing upon such application, may order such officer, trustee or fiduciary to deposit any moneys then in his, her or its custody, or which may come into his, her or its custody thereafter, and until the further order of the court, with any corporate fiduciary, and upon deposit of such money, and its receipt and acceptance by the corporate fiduciary, the officer, trustee or fiduciary shall be discharged from further care or responsibility therefor. Such deposits shall be paid out only upon the orders of said court.
(c) Whenever, in the judgment of any court having jurisdiction of any estate in process of administration by any assignee, receiver, executor, administrator, guardian, or other trustee or fiduciary, the bond required by law of such officer shall seem burdensome or excessive, upon application of such officer, trustee or fiduciary, and after such notice to the parties in interest as the court shall direct, and after a hearing on such application, the court may order the officer, trustee or fiduciary to deposit with any corporate fiduciary for safe keeping, such portion or all of the personal assets of the estate as it shall deem proper, and thereupon, the court shall, by an order entered of record, reduce the bond to be given, or theretofore given by such officer, trustee or fiduciary, so as to cover only the estate remaining in the custody of the officer, trustee or fiduciary, and the property as deposited shall thereupon be held by the corporate fiduciary under the orders and directions of the court.
(Source: P.A. 85-858.)
(205 ILCS 620/2-3) (from Ch. 17, par. 1552-3)
Sec. 2-3. Corporate fiduciaries shall be entitled to and shall be allowed reasonable compensation for all the services performed by them under the provisions of this Act and the corporate fiduciary shall be reimbursed for all proper expenses incurred in the performance of their duties under this Act.
(Source: P.A. 85-858.)
(205 ILCS 620/2-4) (from Ch. 17, par. 1552-4)
Sec. 2-4. Certificate of authority.
(a) It shall not be lawful for any person to engage in the trust business, after the effective date of this amendatory Act of 1995, without first filing an application for and procuring from the Commissioner, a certificate of authority stating that such person has complied with the requirements of this Act and is qualified to engage in the trust business.
(b) No natural person or natural persons, firm or partnership, or corporation not having been authorized under this Act shall transact a trust business. A person who violates this Section is guilty of a Class A misdemeanor, and the Attorney General or State's Attorney of the county in which the violation occurs may restrain the violation by a complaint for injunctive relief.
(Source: P.A. 89-364, eff. 8-18-95.)
(205 ILCS 620/2-4.5)
Sec. 2-4.5. Exemptions. For the purposes of this Act, a person does not engage in the trust business by:
(1) the rendering of fiduciary services by an attorney-at-law admitted to the practice of law in this State;
(2) rendering services as a certified or registered public accountant in the performance of duties as such;
(3) acting as a trustee or receiver in bankruptcy;
(4) engaging in the business of an escrow agent;
(5) receiving rents and proceeds of sale as a licensed real estate broker on behalf of the principal;
(6) acting as trustee under a deed of trust made only as security for the payment of money or for the performance of another act;
(7) acting in accordance with its authorized powers as a religious, charitable, educational, or other not-for-profit corporation or as a charitable trust or as an unincorporated religious organization;
(8) engaging in securities transactions as a dealer or salesman;
(9) acting as either a receiver under the supervision of a court or as an assignee for the benefit of creditors under the supervision of a court; or
(10) engaging in such other activities that the Commissioner may prescribe by rule.
(Source: P.A. 89-364, eff. 8-18-95.)
(205 ILCS 620/2-5) (from Ch. 17, par. 1552-5)
Sec. 2-5. The application for a certificate of authority shall be filed with the Commissioner, signed by the president or vice president and attested by the corporate secretary or cashier and acknowledged before some officer authorized by law to acknowledge deeds. The application shall set forth:
(a) the name and address of the applicant;
(b) a statement of the proposed management including experience in administering trusts;
(c) the duration of the proposed corporate fiduciary which may be perpetual;
(d) the amount of capital, surplus and reserve for operating expenses of the corporate fiduciary or which will be committed to the trust department if the applicant is a bank, savings and loan association or savings bank;
(e) a description of the capital structure of the corporate fiduciary including the number of shares of stock, the classes of such stock, the par value if any, and the amount for which each share is to be sold;
(f) a list of the powers, fiduciary appointments and fiduciary functions the corporate fiduciary wishes to exercise; and
(g) such other relevant information as the Commissioner may require to support the findings the Commissioner is required to make to issue a certificate of authority under this Act.
(Source: P.A. 86-754.)
(205 ILCS 620/2-6) (from Ch. 17, par. 1552-6)
Sec. 2-6. Upon the filing of an application for a certificate of authority, the Commissioner shall cause to be made an investigation of the truth of the statements therein and the background of the management and controlling shareholder or shareholders and shall not approve the application and issue a certificate of authority unless he shall be of the opinion and finds:
(a) that the proposed capital at least meets the minimum amounts as determined pursuant to this Act including amounts deemed necessary to support the scope of the proposed operations;
(b) that the general character and experience of the proposed management is such as to assure reasonable promise of successful, safe and sound operation; and
(c) that the prior business affairs of the persons who will control the corporate fiduciary or the proposed management personnel, whether as a stockholder, director, officer, or customer, were conducted in a safe, sound manner, and lawful manner.
(Source: P.A. 88-408.)
(205 ILCS 620/2-6.5)
Sec. 2-6.5. Directors.
(a) The business and affairs of a corporate fiduciary shall be managed by its board of directors, which shall exercise its powers in accordance with this Section.
(b) The directors shall be elected as provided in this Act. Any omission to elect a director or directors shall not impair any of the rights and privileges of the corporate fiduciary or of any person in any way interested. The existing directors shall hold office until their successors are elected and qualify.
(c) Notwithstanding the provisions of any certificate of authority heretofore or hereafter issued, the number of directors, not fewer than 5, may be fixed from time to time by the stockholders at any meeting of the stockholders called for the purpose of electing directors or changing the number thereof by the affirmative vote of at least two-thirds of the outstanding stock entitled to vote at the meeting, and the number so fixed shall be the board regardless of vacancies until the number of directors is thereafter changed by similar action.
(d) Except as otherwise provided in this subsection, directors shall hold office until the next annual meeting of the stockholders succeeding their election or until their successors are elected and qualify. If the board of directors consists of 6 or more members, in lieu of electing the membership of the whole board of directors annually, the by-laws of a corporate fiduciary may provide that the directors shall be divided into either 2 or 3 classes, each class to be as nearly equal in number as is possible. The term of office of directors of the first class shall expire at the first annual meeting of the stockholders after their election, that of the second class shall expire at the second annual meeting after their election, and that of the third class, if any, shall expire at the third annual meeting after their election. At each annual meeting after classification, the number of directors equal to the number of the class whose terms expire at the time of the meeting shall be elected to hold office until the second succeeding annual meeting if there are 2 classes or until the third succeeding annual meeting if there are 3 classes. Vacancies may be filled by stockholders at a special meeting called for the purpose. If authorized by the corporate fiduciary's by-laws or an amendment thereto, the directors of a corporate fiduciary may properly fill a vacancy or vacancies arising between stockholders' meetings, but at no time may the number of directors selected to fill a vacancy in this manner during any interim period between stockholders' meetings exceed one-third of the total membership of the board of directors.
(e) The board of directors shall hold regular meetings at least once each month, provided that, upon prior written approval by the Commissioner, the board of directors may hold regular meetings less frequently than once each month but at least once each calendar quarter. A special meeting of the board of directors may be held as provided by the by-laws. A special meeting of the board of directors may also be held as provided in Section 5-5 of this Act. A majority of the board of directors shall constitute a quorum for the transaction of business unless a greater number is required by the by-laws. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors unless the act of a greater number is required by the by-laws.
(f) A member of the board of directors shall be elected president. The board of directors may appoint other officers, as the by-laws may provide, and fix their salaries to carry on the business of the corporate fiduciary. The board of directors may make and amend by-laws (not inconsistent with this Act) for the government of the corporate fiduciary and may, by the affirmative vote of a majority of the board of directors, establish reasonable compensation of all directors for services to the corporation as directors, officers, or otherwise. An officer, whether elected or appointed by the board of directors or appointed pursuant to the by-laws, may be removed by the board of directors at any time.
(g) The board of directors shall cause suitable books and records of all the corporate fiduciary's transactions to be kept.
(h) The provisions of this Section do not apply to a corporate fiduciary that is a trust department of a bank, savings bank, savings and loan association, or foreign banking corporation issued a certificate of authority pursuant to the Foreign Banking Office Act.
(Source: P.A. 92-485, eff. 8-23-01.)
(205 ILCS 620/2-7) (from Ch. 17, par. 1552-7)
Sec. 2-7. A corporate fiduciary so incorporated or authorized after January 1, 1988, shall have minimum capital as determined by the Commissioner as necessary for safe and sound operation of a corporate fiduciary. The Commissioner shall record such organization capital requirements in the Office of the Secretary of State. During the time that a corporate fiduciary shall continue in its fiduciary business, it shall not withdraw, or permit to be withdrawn, either in the form of dividends or otherwise, any portion of its capital except as approved by the Commissioner. The Commissioner may, after a corporate fiduciary has been incorporated or authorized require additional capital if the Commissioner finds the condition and operations of the corporate fiduciary or its proposed scope of operations require such additional capital to achieve or maintain a safe and sound condition.
(Source: P.A. 90-301, eff. 8-1-97.)
(205 ILCS 620/2-8) (from Ch. 17, par. 1552-8)
Sec. 2-8. Collateralizing fiduciary assets.
(a) A corporate fiduciary shall not be required and shall not have the power to collateralize or secure fiduciary funds except as provided in this Section.
(b) All funds, both principal and income, deposited with or held in a fiduciary capacity by any corporate fiduciary awaiting investment or distribution, and not otherwise subject to direction regarding investment or non-investment, shall to the extent reasonable under existing circumstances, be prudently invested for the beneficiaries at a rate of return commensurate with that available on trust quality investments.
(c) Funds, both principal and income awaiting investment or distribution, may be deposited in deposit accounts or other investment vehicles of the corporate fiduciary, or of any affiliate of the corporate fiduciary; and funds, both principal and income awaiting investment or distribution which need not be invested hereunder for the beneficiaries may be commingled with the corporate fiduciary's own funds and used by the corporate fiduciary in the conduct of its business, provided that in either case the following apply:
(1) The corporate fiduciary or, in the case of the
deposit in an affiliate, such affiliate shall set aside in the corporate fiduciary or affiliate, as the case may be, as collateral, securities of the classes in which corporate fiduciaries are authorized to invest trust funds under the laws of the State of Illinois.
(2) The market value of the collateral may not be
less than 100% of the amount commingled or deposited.
(3) No collateral shall be required or authorized if
the deposit is made solely at the direction and determination of the settlor, beneficiary or other person, other than the corporate fiduciary, having the right to direct investment of funds.
(4) No collateral shall be required or authorized
with respect to any part of such deposit which is insured by the Federal Deposit Insurance Corporation.
(d) Funds shall not be held commingled and uninvested or undistributed for an account any longer than is reasonable under existing circumstances for the proper management of the account.
(e) The collateralization required in this Section is not required or authorized if the corporate fiduciary or affiliate has in force a surety bond meeting the requirements of this Section if it is in a form approved by the Commissioner and if it indemnifies the owners, settlors, or beneficiaries of funds held in a fiduciary capacity against loss due to the failure of the corporate fiduciary or affiliate and is issued by a licensed insurance company authorized to transact business in the State that has been approved by the Commissioner for the purpose of issuing surety bonds under this Section. A corporate fiduciary or affiliate may also satisfy the requirements of this Section by a combination of a surety bond and collateralization as provided in this Section.
(f) In the event of the failure of the corporate fiduciary or affiliate in which the corporate fiduciary has made a deposit or commingled funds, the owners of the fiduciary funds shall have a first lien, to the extent of their interest in such funds, on the cash and securities used as collateral hereunder or the surety bond in addition to their claim against the estate of the corporate fiduciary.
(Source: P.A. 88-636, eff. 9-9-94; P.A. 88-662, eff. 9-16-94; 89-364, eff. 8-18-95.)
(205 ILCS 620/2-9) (from Ch. 17, par. 1552-9)
Sec. 2-9. (Repealed).
(Source: P.A. 85-858. Repealed by 89-364, eff. 8-18-95.)
(205 ILCS 620/2-10) (from Ch. 17, par. 1552-10)
Sec. 2-10. Every company may receive, by gift, legacy or otherwise, moneys or real or personal property, or the income or avails of such moneys or property, in trust, in perpetuity, for the improvement, maintenance, ornamentation, repair, care and preservation of any burial lot or grave, vault, tomb, or other such structures, in any cemetery, upon such terms and in such manner as may be provided by the terms of the gift, legacy or other conveyance of the moneys or property in trust and assented to by the company. Any such trust in perpetuity created, and held by any such company, before July 1, 1943, shall, notwithstanding the absence of statutory authority therefor, be valid unless within 3 years after July 1, 1943, the trust is terminated by a court of competent jurisdiction.
(Source: P.A. 85-858.)
(205 ILCS 620/2-11)
Sec. 2-11. Retention of agents and advisors. A corporate fiduciary may hire and compensate, as an additional expense of the trust or estate, agents, advisors (including financial, investment, and other advisors), and brokers (including brokers for the sale or purchase of securities or other property) to assist or advise the corporate fiduciary in the performance of its duties, including persons and entities associated or affiliated with the corporate fiduciary.
(Source: P.A. 89-205, eff. 1-1-96; 89-364, eff. 8-18-95; 90-298, eff. 8-1-97.)
(205 ILCS 620/2-12)
Sec. 2-12. Reproductions of documents. Notwithstanding any other provision of law, if a corporate fiduciary possesses, records, or creates any document, memorandum, writing, entry, representation, or combination thereof, of any act, transaction, occurrence, event, or agreement (including, without limitation, a trust agreement or amendment thereto, but excluding in all events an original will or codicil thereto) and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by photographic, photostatic, facsimile, microfiche, optical, or electronic imaging, or any other electronic or computer-generated process that accurately reproduces or forms a medium for so reproducing the original, the original may be destroyed in the regular course of business and such recording, copy, or reproduction shall be admissible in evidence in the same manner as the original in any proceeding, whether the original is in existence or not. This Section shall not be construed to exclude from evidence any document or copy thereof that is otherwise admissible under the rules of evidence.
(Source: P.A. 90-298, eff. 8-1-97; 90-655, eff. 7-30-98.)
(205 ILCS 620/2-13)
Sec. 2-13. Employment of persons with convictions. Except with the prior written consent of the Commissioner, no person having a certificate of authority under this Act shall knowingly employ or otherwise permit an individual to serve as an officer, director, employee, or agent if the individual has been convicted of a felony or of any criminal offense relating to dishonesty or breach of trust.
(Source: P.A. 90-301, eff. 8-1-97; 90-655, eff. 7-30-98.)