Losing a loved one is a difficult experience, and when their passing is a result of an injury, the process can feel even more overwhelming. In Illinois, navigating the probate process requires careful attention to both opening a probate estate and ensuring the deceased’s personal injury claim is properly managed.
Probate is the legal process through which a deceased person’s estate is administered. It involves proving the validity of the deceased’s will (if one exists), appointing an executor or administrator to manage the estate, paying off any debts, and distributing remaining assets to heirs or beneficiaries. When someone dies due to a personal injury, their estate must be opened through probate to handle claims, debts, and any legal actions.
Why Is Probate Necessary After a Death from Personal Injury?
In Illinois, if a person dies as a result of an accident or injury caused by another party’s negligence, their personal injury claim does not die with them. The claim may still be viable, and the deceased person’s estate becomes the legal party responsible for pursuing the lawsuit or settlement. However, before the lawsuit can commence, the estate must be formally opened, and a personal representative (executor or administrator) must be appointed to handle the deceased’s affairs, including any personal injury lawsuits.
Steps to Open a Probate Estate in Illinois for Purposes of Pursuing a Personal Injury Claim
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- Determine Whether Probate is Necessary: Not all estates require probate, but when a person has outstanding claims (such as a personal injury lawsuit), it is typically necessary to open a probate estate. Probate ensures that the claim can continue through the court system, any debts can be paid, and assets can be distributed properly. If the deceased person had assets, debts, or legal actions, probate is likely required.
- Petition for Probate: The first formal step in the probate process is to file a petition with the probate court in the county where the deceased person lived. This petition is filed by the decedent’s family member or another interested party, such as a personal representative named in the decedent’s will. If there is no will, the court will appoint an administrator.
The petition includes key details, such as the decedent’s death certificate, proof of the decedent’s assets, and whether there are any existing legal claims or lawsuits (including personal injury claims). - Appoint an Executor or Administrator: If there is a valid will, the court will appoint the person named in the will as the executor. If no will exists, the court will appoint an administrator (often a family member or close relative). This individual will be responsible for managing the estate, including handling the ongoing personal injury lawsuit.
For a personal injury claim, the court will need to ensure that the proper person or entity is named to continue the legal action on behalf of the estate. The estate of the deceased becomes the “plaintiff” in the personal injury lawsuit. - Notify Creditors and Heirs: Once appointed, the executor or administrator must notify creditors and beneficiaries of the probate estate. This step is important in determining how any financial obligations of the decedent are satisfied. For example, if there are medical bills or funeral expenses resulting from the injury, these will be paid from the estate before any remaining assets can be distributed to heirs. Additionally, any personal injury settlements or damages awarded may need to be used to cover these obligations before being distributed.
- Assess the Status of the Personal Injury Lawsuit: The personal injury claim may have been in the early stages before the decedent’s death, or it could have been well into the litigation process. The appointed personal representative will need to assess the status of the claim and continue it through the appropriate channels.
- This may involve: Substituting the Estate as Plaintiff: In Illinois, the personal injury lawsuit is generally filed by the decedent, but after their death, the estate must continue the case. The representative of the estate will need to file a motion to substitute the estate as the party in the lawsuit.
- Identifying Legal Issues: In some cases, the decedent may have already received an offer for a settlement or been awarded a judgment before their passing. The executor or administrator will need to assess the viability of accepting or rejecting the offer, ensuring that the settlement proceeds are appropriately allocated to the estate. The estate’s personal representative will also be responsible for ensuring that any damages awarded in the lawsuit are used to pay off debts, including medical costs, funeral expenses, and any liens that may exist (e.g., health insurance liens). Once these debts are settled, the remaining funds can be distributed to the beneficiaries.
- Close the Estate: After all debts are paid and assets distributed, the personal representative can petition the court to close the probate estate. This includes reporting on the handling of the personal injury claim, confirming that all financial obligations were met, and ensuring the beneficiaries have received their share.
Key Considerations in Illinois Personal Injury Probate Cases
- Statute of Limitations: Illinois has a two-year statute of limitations for personal injury cases. If the decedent had an ongoing personal injury lawsuit, the representative must ensure that the lawsuit is properly filed within this time frame. Failure to do so could result in the claim being dismissed.
- Wrongful Death vs. Personal Injury: If the personal injury led to the decedent’s death, the lawsuit may be converted into a wrongful death action. Illinois law allows the personal representative to file a wrongful death claim on behalf of the deceased’s heirs. However, even in this case, the estate must still be involved in the probate process.
- Survival Actions: Even though the person has passed away, a survival action (lawsuit for damages that the decedent could have pursued had they lived) may still be brought by the estate for any damages related to the injury that the decedent suffered before death, such as medical expenses or pain and suffering.
Conclusion
Opening a probate estate in Illinois after a death resulting from a personal injury can be complex, requiring both an understanding of probate law and how personal injury lawsuits are handled posthumously. The estate must be opened in order to pursue or continue any legal actions on behalf of the decedent and ensure that assets, liabilities, and claims are properly addressed.
Our skilled Chicago probate attorneys understand that personal injury claims are critical to ensuring the estate is administered correctly and that any personal injury lawsuits are pursued in the best interest of the decedent’s beneficiaries. Navigating both the legal and emotional aspects of this process can be challenging, but with the right legal guidance, the estate can be settled, and the personal injury claim can reach a fair and just resolution.
