FROM LAW TO PROBATE
Judge Lynn M. Egan
Judge Mary Ellen Coghlan
March 21, 2013
Terminology
 Special Administrator = Wrongful Death Act
 Personal Representative = Survival Actions
Wrongful Death vs. Survival
Claims
•Wrongful Death actions are for the
exclusive benefit of the decedent’s
surviving spouse & next of kin.
•Survival actions are for the benefit of
the decedent’s estate.
CAUTION:
These interests are not always aligned.
Next of Kin
The “definite blood relatives” in existence at
the time of decedent’s death who would take
his personal property if he died intestate. Baez
v. Rosenberg, 409 Ill.App.3d 525 (1st Dist.,
2011)
See also, 755 ILCS 5/2: Probate Act Rules of
Descent & Distribution
Wrongful Death Act
Requirements
A special administrator may be appointed to
prosecute such a claim ONLY when the
following 2 conditions are met:
• Claim is the only asset of decedent’s estate
• No petition for letters of office has been filed
for decedent’s estate.
Who May Serve as Special
Administrator?
Only someone “entitled to recovery” under the
Wrongful Death Act. (740 ILCS 180/2.1)
Notice must be provided to the decedent’s
heirs & legatees “as the court directs.” (740
ILCS 180/2.1)
Caution:
There is NO proper plaintiff if the decedent’s
next of kin sues in his or her individual
capacity. Nagel v. Inman, 402 Ill.App.3d 766
(1st Dist., 2010).
Also, the authority to act as special
administrator of wrongful death claim ends if
plaintiff voluntarily dismisses the case. Id.
Survival Act Requirements
•
May only be prosecuted by someone
appointed as the executor or administrator of
the decedent’s estate.
•
Only this person, not the decedent’s survivors,
can bring a survival action. Wilmere v. Stibolt,
152 Ill.App.3d 642 (1st Dist., 1987).
•
That person MUST be appointed under the
Illinois Probate Act. Burris v. Cullinan, 2009
U.S. Dist. LEXIS 98875.
Special Administrator
≠
Personal Representative
Appointment as a Special Administrator for
a wrongful death claim DOES
NOT allow that same individual to
prosecute a survival action.
“…the plain terms of section 2.1 of the
Wrongful Death Act do not permit, in
situations involving the absence of letters of
administration, a special administrator to
prosecute a wrongful death claim with other
causes of action.” Baez v. Rosenberg
An appointment as special administrator “is
effective only for wrongful death actions, and
does not confer upon the Plaintiff standing to
bring claims under the Survival Act.” Burris v.
Cullinan.
Suit against a dead guy is a nullity
• The court lacks subject matter jurisdiction
over such a suit; and
• Any proceedings in such a case are void ab
initio;
What happens when a party dies?
It depends on WHEN they die.
Death AFTER suit filed
735 ILCS 5/2-1008. Requirements include:
1. Motion by plaintiff for appointment of special
administrator
2. Notice to the decedent’s heirs or legatees that plaintiff is
seeking to substitute a special administrator;
3. Circuit Court order appointing the special administrator.
Clay v. Huntley, 338 Ill.App.3d 68 (1st Dist., 2003)
Death BEFORE suit filed
735 ILCS 5/13-209. Addresses 3 different situations:
1. Subsection (a) – when “a person entitled to bring
an action dies”
2. Subsection (b) – when “a person against whom an
action may be brought dies”
3. Subsection (c) – when a party unknowingly sues a
dead person.
NOTE:
Watch Carefully
Relf v. Shatayeva, 2012 IL App (1st) 112071.
PLA accepted November 28, 2012.
Wrongful Death Act
Settlements vs. Jury Verdicts
• Distribution of wrongful death proceeds are treated the
same way for settlements and jury verdicts;
• The judge decides distribution based on degree of
dependency;
• A jury DOES NOT decide distribution. Therefore, the
verdict forms should not contain separate lines listing
each survivor.
Barry v. Owens-Corning Fiberglass Corporation, 282 Ill.App.3d 199
(1st Dist., 1996); Jones v. Chicago Osteopathic Hosp., 316 Ill.App.3d
1121 (1st Dist., 2000).
Always Remember:
The Court has a special duty to
minors
What does this mean?
The Court “is bound to notice substantial irregularities
even though objections were not properly presented
on the minor’s behalf.”
Baez v. Rosenberg, 409 Ill.App.3d 525 (1st Dist., 2011)
PROBATE SCENARIOS
Scenario
You represent the spouse of a deceased
person who was killed instantly in an
accident. The only asset of the estate is a
possible wrongful death cause of action.
In addition to his spouse, the decedent is
survived by three children: one an adult,
one a disabled adult & one a minor.
Question # 1:
Do you need to open a decedent’s
estate prior to filing the wrongful
death cause of action?
Answer # 1:
NO
Section 2.1 of the Wrongful Death Act
allows for the appointment of the surviving
spouse in the Division where the action will
proceed because there is no other asset of
the decedent’s estate. (740 ILCS 180/2.1)
Question # 2:
Does a judge outside the Probate
Division have the authority to
appoint the surviving spouse as
special administrator for the
purpose of prosecuting the
wrongful death claim?
Answer # 2:
YES
Section 2.1 of the Wrongful Death Act provides
that “if the only asset of a deceased estate is a
wrongful death action, and no petition for letters
of office for his or her estate has been filed, the
court, upon motion of any person who would be
entitled to recovery under the Act…may appoint a
special administrator for the deceased party for
the purpose of prosecuting or defending the
action.” (740 ILCS 180/2.1)
Question # 3:
Once a petition for issuance of letters of
office has been filed in the Probate
Division, can a special administrator still be
appointed in another Court Division for the
purpose of prosecuting the wrongful death
action?
Answer # 3:
NO
“A trial court has authority to appoint a
special administrator for purposes of
prosecuting a wrongful death claim, but
only if a probate estate has not been
opened.” Cushing v. Greyhound Lines,
Inc., 2012 IL App (1st) 100768.
LESSON:
Even if you did not need to open a
decedent’s estate in Probate, once
you do so, you can no longer seek
the appointment of a Special
Administrator in another Court
Division.
Question # 4:
What if the decedent did not die instantly &
you wish to pursue a Survival Act claim in
addition to wrongful death claim?
Do you need to open a decedent’s estate in
Probate prior to filing the cause of action?
Answer # 4:
YES
“Whereas executors and administrators
appointed under the Probate Act are given
powers to collect and manage assets, pay
claims, and make distributions…the powers
and duties of a special administrator appointed
under the Wrongful Death Act are strictly
limited to those prescribed by the wrongful
death statute.” Baez v. Rosenberg, 409
Ill.App.3d 525 (1st Dist., 2011).
LESSON:
If you plan to file survival claims in
addition to wrongful death claims, you
MUST open a decedent’s estate in the
Probate Division.
Question # 5:
In the above scenario, who is “entitled
to recovery” under the Wrongful Death
Act?
Answer # 5:
The surviving spouse
&
decedent’s three children
“Illinois courts look to the laws of intestacy
to determine a decedent’s next of kin within
the meaning of the Wrongful Death Act.”
Baez v. Rosenberg, 409 Ill.App.3d 525 (1st
Dist., 2011).
See also, Probate Act - Rules of Descent &
Distribution (755 ILCS 5/2-1 et seq.)
Question # 6:
What is the role of the Probate
Division when the cause of action is
prosecuted by a special administrator
appointed in another division and no
decedent’s estate has been opened
in Probate?
Answer # 6:
NONE, unless proceeds in excess of $10,000 are
distributable to a minor or disabled person. Why?
 Proceeds of a wrongful death claim are not an
asset of the decedent’s estate subject to the
claims of creditors, &
 Distribution of wrongful death proceeds are
made on the basis of dependency without
regard to testacy or intestacy.
NOTE:
If proceeds in excess of $10,000 are
distributable to a minor or disabled person, the
order of distribution SHALL be administered
under the supervision of the Probate Division.
(Cook County Circuit Court Rules 6.4, 6.5 & 12.15.)
 This means you must file a petition in the Probate
Division, prior to distribution, for appointment of a
guardian of the estate for the minor or disabled
person.
Question # 7:
If the cause of action is prosecuted in
another division, but a probate estate has
been opened & letters of office issued,
what is the role of the Probate Division
once a disposition is reached in the other
division?
Answer # 7:
If the action involves (1) a minor or disabled
personal’s personal injury case; (2) a wrongful
death action by a representative on behalf of a
decedent’s estate; or (3) an action which survives
decedent’s death….
 The guardian of the ward’s estate or
representative of decedent’s estate shall file a
petition in Probate court for authority to receive
the proceeds in accordance with Rules 6.4, 6.5
& 12.15.
In such a situation, the order of
distribution MUST contain the following
language:
“The settlement amount approved herein shall
be paid only to a guardian appointed by the
probate division where the minor or disabled
person resides & this order shall be effective
only after the entry in the probate division or
circuit court of an order approving the bond or
other security required to administer the
settlement & distribution provided for in this
order.”
Question # 8:
If the amount distributable to the minor or
disabled person does NOT exceed
$10,000, can the settling judge authorize
disbursement on behalf of the minor and/or
disabled person?
Answer # 8:
YES
The Probate Act authorizes the judge hearing
the case to provide, by order, for the
distribution to a parent or person standing
in loco parentis to the minor or to the
spouse or relative having the responsibility
to support the minor or disabled person.
Question # 9:
If the cause of action is settled by a judge in
a division other than Probate, who is
responsible for finding that the settlement is
“fair & reasonable,” approving attorneys
fees/expenses,
making
findings
of
dependency,
adjudicating
liens
and
determining distributable amounts?
Answer # 9:
The settling judge.
However, if no proceeding is pending
outside Probate, the judge in the
Probate Division makes all of these
findings.