By Jim Ryan and Matthew Caruso
In what would become one of his final public letters, Benjamin Franklin famously stated, “In this world, there are only two things that are certain—death and taxes.” This article won’t address taxes, but it will guide the DuPage County attorney in dealing with litigation involving parties who have died.
Probate Court in Illinois
The first tip for a civil litigation attorney dealing with the death of any party is to consider whether to open a probate estate for the deceased. Do not assume that a probate case will be opened for every person after their death. In our experience, most people who pass away do not have a probate case opened after that person has died. For example, DuPage County’s official records show that in 2022, 87% of the county’s deceased residents did not have a probate case filed for them with the Clerk of Court.¹ One reason why so few probate cases are opened is that a probate case is not necessary if the value of the deceased’s estate is less than $100,000 at the time of death.²
Another reason why so few probate cases are open is that many people, whether intentionally or not, use estate planning techniques to avoid hitting the $100,000 threshold amount. Joint bank accounts, accounts with beneficiary designations, pay-on-death accounts, transfer-on-death accounts, and trusts are all “non-probate assets” that do not count toward the $100,000 threshold. The Illinois Third Party Beneficiary Contract Act protects contracted accounts such as transfer-on-death accounts and life insurance policies from probate court jurisdiction.³
These protections are particularly important to understand when a defendant dies, because the probate court is much different from the civil court with its own expedited set of deadlines, approvals, and procedures, and the probate court’s ability to reach assets of a deceased defendant is limited to only those probate assets under the probate court’s jurisdiction.
At its core, “probate” is a court proceeding used 1) to gather and distribute a deceased’s assets in accordance with the deceased’s last, valid will or the laws of intestacy if the deceased did not leave a valid will and 2) to identify and promptly adjudicate claims against a deceased’s estate. To accomplish these two objectives, the probate judge appoints a personal representative as an officer of the court charged with administering the probate estate. The personal representative takes an oath of office and obtains “Letters of Office” from the probate judge who appointed the personal representative. If the deceased person died with a will, the personal representative is called an “Executor.” If the deceased person died without a will, the personal representative is called an “Administrator.”
Survival of Claims in General After Death
Under Illinois common law, tort causes of action generally abate (they are no longer available) upon the death of the tortfeasor or the plaintiff, but actions for breach of contract survived either the death of the plaintiff or defendant.⁴
Various reasons have been presented for this general distinction between tort claims and contract claims. Perhaps for the same reason that criminal matters do not survive the death of a criminal defendant, certain tort cases do not survive the death of the tortfeasor because you cannot obtain punitive damages or damages for emotional injuries including defamation after the death of a tortfeasor. After all, you cannot punish a dead person. To overcome the common law general rule that tort cases abate upon death and to proceed on a tort claim when one party has died, one must either have case law that creates an exception allowing the cause of action to survive, or there must be a statute which expressly allows the cause of action to survive.⁵
Common law distinguishes between those actions which survive and those which abate based upon the type of injury of which the plaintiff complained.⁶
Generally in Illinois, many of the statutory exceptions to the common law rule that causes of actions abate upon the death of the defendant are found in the Survival Act, 755 ILCS 5/27. This statute in turn has been the subject of much case law regarding what claims survive and what claims abate under the wording of the statute. Those tort claims that survive tend to be claims for money due to actual physical damage, as distinct from emotional or punitive damages, or damages to reputation due to defamation, which is specifically excluded from surviving in the wording of the Survival Act.
As a general rule, the only claims that survive the death of a tortfeasor are those claims that are assignable.⁷
Tort claims for emotional injuries and actions for other wrongs of a personal nature, such as those that involve the reputation or feelings of the injured party cannot be assigned, and therefore they do not survive the death of the tortfeasor.⁸
Claims that include physical damages that result in car repair bills or medical bills are more likely to survive.
Death of a Plaintiff
If a plaintiff dies, the plaintiff’s attorney must first determine whether the plaintiff’s causes of action survive the plaintiff’s death. If the cause of action does not survive the death of the plaintiff, then the case is effectively over and no recovery can be obtained.
If the cause of action survives, the next question for the plaintiff’s attorney is to determine how to pursue his case. If the plaintiff dies before a complaint is filed, the plaintiff’s attorney has two options: 1) the attorney can either go to probate court and file a petition for the probate court to appoint a personal representative to pursue the case; or 2) if a probate case has not been opened in the probate division, the attorney can go to civil court to ask the judge to appoint a special representative for the sole, limited purpose of pursuing the civil lawsuit.⁹
In most circumstances, we believe the probate court option is the best option for a deceased plaintiff pursuing a cause of action for three reasons. First, the appointment of a special representative doesn’t save time. The special representative statute tracks the notice requirements of the Probate Act. A plaintiff seeking status as a special representative in a civil lawsuit must give notice to the same heirs and legatees that would be notified in a probate case, or “as the court directs.”¹⁰ Second, recovery with a special representative is limited only to the amount of liability insurance available to protect the estate.¹¹ Thus, a plaintiff’s attorney who seeks the appointment of a special representative voluntarily reduces the plaintiff’s ability to recover in the event the defendant proves to be uninsured, underinsured, or there is a dispute as to coverage that is resolved in favor of the insurer. Third, the power of the special representative is inherently temporary and could be taken away at any time with the appointment of a personal representative by a probate court. For these reasons, we believe it is best to involve the probate judge as early in the process as possible by opening a probate estate for a deceased plaintiff and appointing a personal representative to pursue the case.
Seeking a more favorable venue for a civil lawsuit should never be a deterrent to opening a probate estate for a deceased plaintiff. It is not unusual to have a probate case pending in DuPage County with personal injury or other litigation filed in another county. Probate cases must be filed in the county where the deceased resided at the time of his death.¹² Civil lawsuits are considered an asset of the probate estate and may be pursued in any county of residence of any defendant joined in good faith or in the county where some part of the cause of action occurred.¹³ In a case brought under the Wrongful Death Act, the venue is fixed in the county where the person died.¹⁴
If a plaintiff dies during litigation, the plaintiff’s case is effectively stopped, so the plaintiff’s attorney should act quickly to appoint a personal representative in the probate court and then amend the complaint to substitute the personal representative as the plaintiff.
Death of a Defendant
If a defendant dies before litigation, the defense attorney’s work is effectively over unless the plaintiff’s attorney acts. A plaintiff cannot serve a dead person with a summons. Service must go to the deceased’s personal representative if one has been appointed by the probate court, or the plaintiff may ask the civil court to appoint a special representative for the deceased defendant and voluntarily limit the plaintiff’s recovery to the amount of insurance coverage available. If the defendant dies during the litigation, the burden is on the plaintiff to proceed with reasonable diligence in “both moving the court for leave to file an amended complaint, substituting the personal representative as the defendant, and serving process upon the personal representative.”¹⁵
A plaintiff should never rely on the defendant’s family to open a probate estate and appoint a personal representative. Spouses and children have no duty to act, and sometimes, it is in their best interest not to act. Claims against probate estates have a maximum two-year statute of limitations from the date of death that runs regardless of whether a probate estate is open. As a result, it may be in the defendant’s family’s interest to delay opening an estate until after the two-year statute of limitations runs. On the contrary, there is no statute of limitations barring anyone from opening a probate estate.¹⁶ It is not unusual to file petitions to open a probate estate for a person who passed away over 20 or 30 years ago. These cases are typically filed to sell real estate owned by family members as tenants in common.
Whenever there is a delay in the appointment of a personal representative of an estate, the Probate Act allows any creditor, such as a plaintiff in a pending personal injury action, to petition the probate court to ask the probate court to appoint an “Administrator to Collect” and to then serve that administrator to collect with a summons as the personal representative of the deceased defendant’s estate. Unlike the appointment of a special representative, the appointment of an administrator to collect may be made without notice to a deceased defendant’s heirs and legatees. For a plaintiff who likely does not have knowledge of the defendant’s family tree and estate planning, the appointment of an administrator to collect represents a more efficient way of securing service of process against the deceased defendant’s estate.¹⁷
Once a plaintiff is successful in appointing a personal representative or administrator to collect, the plaintiff should amend the complaint to substitute the personal representative or administrator to collect for the deceased defendant in the caption of the case and then serve process on the personal representative or administrator to collect.
Lastly, if a plaintiff must open a probate case to pursue litigation against a deceased defendant, the plaintiff must bear in mind that probate is more than a formality. The deceased’s creditors must be notified of the probate case and given a chance to file claims against the estate. This is typically accomplished through publication in the legal notices section of a local newspaper. The Probate Act’s notice requirements also toll the statute of limitations for a period of six months to allow creditors a reasonable opportunity to file claims. It is not unusual for personal injury attorneys in Illinois to enter their appearances in probate cases and to file claims against the estate of a deceased tortfeasor. When this happens, plaintiffs’ counsel is well advised to attend the probate case’s initial hearings to see if the probate court appoints a personal representative who intends to defend against the lawsuit and who will enter the personal representative’s appearance in the personal injury lawsuit. The same procedures apply when a tortfeasor is in bankruptcy court. The best way to prevent a potential default judgment from being undone in probate court or bankruptcy court is to carefully monitor both cases.
Concluding Thoughts
In conclusion, when an attorney is faced with the death of a party in litigation, it is important for that attorney to not delay or let the other side delay taking action that will keep the case moving forward. Involving the probate court at the earliest opportunity is often the best way to ensure the plaintiff has an opportunity to collect, but it is also important to keep in mind that not every case is a probate case. If there are no probate assets, then it may be in the plaintiff’s best interest to resolve the case through settlement rather than litigation. In either situation, attorneys should consider their options carefully and act quickly to ensure their clients’ rights are protected.