FROM LAW TO PROBATE Judge Lynn M Egan

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. 3 d 525 (1 st 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. 3 d 766 (1 st 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. 3 d 642 (1 st 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. 3 d 68 (1 st 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 (1 st) 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. 3 d 199 (1 st Dist. , 1996); Jones v. Chicago Osteopathic Hosp. , 316 Ill. App. 3 d 1121 (1 st 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. 3 d 525 (1 st 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 (1 st) 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. 3 d 525 (1 st 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. 3 d 525 (1 st 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? Ø Proceeds of a wrongful death claim are not an asset of the decedent’s estate subject to the claims of creditors, & Ø 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. ) v 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…. Ø 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.