Illinois Wrongful Death Claims and Probate
What is a Wrongful Death Claim?
If you have a close friend or family member who has recently passed away due to the wrongful actions of another, a wrongful death claim may be brought against the negligent party to recover an award of damages. The State of Illinois has instituted the Illinois Wrongful Death Act, 740 ILCS 180/1, which permits a cause of action against negligent or intentional acts that result in a person’s death. So, for instance, if a healthcare provider neglects the care of a person in their charge, they can be held liable in a wrongful death action.
The time limits that you have to pursue a wrongful death action may differ. If the action is not brought within a specified time-frame - the claim is lost. It is extremely important to speak with an experienced wrongful death attorney such as the attorneys at Breen Goril Law before your time to file a claim expires.
Who Files a Wrongful Death Claim?
In Illinois, a probate claim of a decedent is typically brought by the representative of the decedent’s estate. In the event of wrongful death a probate estate must be opened with the court of the county where the decedent resided upon death. In Cook County, the probate matter will be opened with the Circuit Court of Cook County, Probate Division – with hearings often held at the Richard M. Daley Center. The Judge of the probate matter will appoint a representative of the estate. If the decedent has nominated an Executor in his or her will, then usually this person will act as the representative. If the decedent was intestate (did not have a will at death) then the court appoints a party, with priority given to closer family members of the decedent. If the court appoints a party then the person appointed is referred to as the “administrator” of the estate. Once a representative has been appointed, he or she can retain a wrongful death attorney and file a corresponding lawsuit for wrongful death.
Illinois does permit the appointment of a “special administrator” in cases where the decedent had no other assets or debts, and this matter then proceeds in lieu of probate. To determine whether this route may be employed, it is important to speak with our wrongful death attorneys and a probate lawyer.
Probate Process in Illinois
In Illinois, the probate process can be complex depending on whether the decedent had assets and/or debts that must be resolved. When a probate estate is opened in court, a time-frame is given for parties to file claims against the estate. The estate representative will collect the decedent’s assets, pay all valid debts, and then distribute the assets according to the will, if any, otherwise this will be done according to the Illinois laws of descent and distribution. However, the probate matter cannot be finalized until the wrongful death claim has been completed, since the wrongful death claim is considered an asset of the estate. Only upon the completion of a wrongful death claim will the probate estate conclude and permit distribution of the assets. Any damages received in the wrongful death action will be distributed accordingly.
Potential Damages in a Wrongful Death Action
Illinois permits damages in a wrongful death claim for the benefit of the family for an amount that is “fair and just.” The jury can consider awarding damages for grief, sorrow, and mental suffering. A dependent family member, including a spouse and children, can be awarded damages from loss of care and companionship. A damage award can be paid out in a wrongful death action for expenses, such as funeral expenses, as well. It is important to determine the entirety of the loss to the family to formulate an appropriate damages award. A Chicago wrongful death attorney such as those at Breen Goril Law can assist in making such a determination.
The Steps to Take in a Wrongful Death Action
If you believe your loved one’s death was due to the wrongful actions of another person or party, then it is important to take the following steps:
1. Speak with a wrongful death lawyer immediately to determine whether you have a case. Remember, the clock is ticking with the statute of limitations so it is imperative that you do not delay.
2. Gather all the evidence that you can obtain and supply it to your wrongful death lawyer. A case is made with evidence, so it is important that nothing gets missed.
3. Speak with your family to determine who should act as the personal representative in the probate matter. Once a representative has been nominated, engage a probate lawyer to represent the estate in probate court.
4. Work with your attorney on sending a demand letter. A demand letter can lead to a settlement, which in some circumstances is the optimal result for both parties.
5. If a settlement cannot be obtained, then a formal lawsuit and trial may commence. Your wrongful death/personal injury attorney will spearhead this effort.
6. Upon completion of the wrongful death matter, be it through settlement or trial, your probate lawyer will work to close the probate matter and have the funds distributed to the family.
Contact the Chicago Wrongful Death Lawyers at Breen Goril Law Today
If your loved one’s death was the result of the wrongful actions of another person, it is imperative to speak with a Chicago wrongful death lawyer such as the wrongful death lawyers at Breen Goril Law. We will meet with you and go over the facts surrounding the case, and we will develop a strategy to champion your family’s rights. If settlement is not possible, we will proceed with a lawsuit and trial. Call the Chicago wrongful death lawyers at Breen Goril Law today at 312-726-8222 to discuss your case with our experienced team. We strive to give you peace of mind by guiding you through the process so that your family may find justice.
A special thank you to our friends and colleagues at Johnston Tomei Lenczycki & Goldberg LLC for helping with this blog post.