While a wrongful death lawsuit is separate from the probate process, you cannot file your lawsuit until probate has begun and you have been appointed personal representative of the victim’s estate. Understanding the role of probate in a wrongful death case is crucial, and not something many survivors consider until it possibly complicates their ability to hold a defendant accountable.
You must open a decedent’s estate and initiate the probate process for the probate court to acknowledge the victim’s personal representative. This is the only person who is a qualified plaintiff in a wrongful death lawsuit in Illinois and is typically named in a will. If the victim did not leave a will, probate is still necessary so that the court can appoint a personal representative, who can then file a wrongful death lawsuit. Probate might affect the settlement in a wrongful case, too, and delaying probate might put you at risk of missing the wrongful death lawsuit statute of limitations.
For a free and confidential case review, call the Chicago wrongful death lawyers of Rhatigan Law Offices at (312) 578-8502.
What is the Role of Probate in a Wrongful Death Case?
Probate is the process of administering someone’s estate after they die. Probate becomes relevant in a wrongful death case because only a victim’s personal representative may sue for wrongful death. That person is typically identified in the victim’s will, which is reviewed during probate.
If the victim did not name a personal representative, the court will name one through the probate process. This person becomes the only one with authority to file a wrongful death lawsuit in Illinois on behalf of other survivors.
Can You Skip Probate If You Know You’re In the Will?
Even if you know you were named your loved one’s personal representative, the court must formally appoint you as such during probate proceedings, so it’s a mandatory step before you can file a wrongful death lawsuit.
The probate process acknowledges an individual’s authority as a personal representative, which is ultimately what gives them the authority to file a wrongful death lawsuit on behalf of all survivors.
Without probate, no one is recognized as the victim’s personal representative, so that no one can file a lawsuit to get justice for a deceased victim.
We can answer any questions you have about the role of probate in a wrongful death case, and explain the importance of initiating the probate process quickly after the victim dies so you don’t have to delay your lawsuit.
What is the Role of Probate if a Wrongful Death Victim Dies Without a Will?
Suppose a victim dies suddenly due to another person’s negligence and does not have a will in Illinois. If they don’t have a will, they have not expressly named someone as the personal representative. If the victim did not identify a representative before their death, the probate court will do so for them.
The probate court typically chooses close, trusted relatives as personal representatives. For example, the court may appoint the victim’s surviving spouse or adult child to be the personal representative. If you believe the individual the probate court appoints as your loved one’s personal representative is incapable, you may contest the appointment.
If a victim does not leave a will and dies with few assets, their estate must still go through probate before survivors can seek damages in a wrongful death lawsuit. Probate will grant the personal representative the authority to file the lawsuit, making it a crucial step.
Does a Wrongful Death Settlement Go Through Probate?
Probate can also complicate the distribution of a wrongful death settlement, since a portion of the settlement may be distributed under the supervision of the probate court, such as to minor beneficiaries.
Damages from a wrongful death lawsuit ultimately go to the victim’s surviving spouse and next of kin in Illinois. These damages are meant to compensate the survivors for the damages they have incurred. In contrast, compensation awarded in survival actions is meant to compensate the estate for damages before the victim’s death.
Generally, wrongful death settlements are not seen as part of the decedent’s general probate estate, meaning they shouldn’t be used to pay off debts and should instead be dispersed to survivors.
To seek compensation for the estate, the victim’s personal representative may file a survival action alongside a wrongful death lawsuit. Damages from a survival action could go towards the decedents’ medical bills and other expenses before their death. Because of this, a survival action settlement might go through probate.
Can Probate Delay a Wrongful Death Lawsuit?
If filing a wrongful death claim rests on your shoulders as the victim’s personal representative, contact our Illinois wrongful death lawyers, and we can explain how probate might affect your and other survivors’ recovery timelines.
An estate must be opened before a personal representative can file a wrongful death claim in Illinois. This takes time in and of itself, and might delay your lawsuit for longer than you think. Don’t wait to open the decedent’s estate and start the probate process after their untimely death, as you will only have two years from the date they died to sue.
Personal representatives who don’t know they need to open the victim’s estate before suing for wrongful death might not have enough time left on the statute of limitations to do so and still have time to file a lawsuit. Don’t let this happen to you, and learn more about the role of probate in wrongful death lawsuits in Illinois as soon as possible after unexpectedly losing a loved one.
Generally speaking, probate can’t end until a wrongful death claim or survival action is resolved, as some of the settlement or award may need to be distributed by the probate court. We can prioritize your wrongful death lawsuit and get justice for your loved one so you can also close their estate.
Call Our Wrongful Death Attorneys for Help Today
For a free case assessment, call the Illinois personal injury lawyers of Rhatigan Law Offices at (312) 578-8502.
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