What Happens to a Personal Injury Lawsuit When the Defendant Dies?

Personal injury lawsuits can take months and sometimes years to reach a resolution. The defendant may die before a lawsuit ends or even starts. This reality may compel you to ask: What happens to a personal injury lawsuit when the defendant dies? Generally, you can start or continue with an existing personal injury lawsuit even after the defendant dies in Chicago, Illinois. The action will, however, be against the deceased defendant’s estate.

Wooden casket with red flowers on. what happens to a personal injury lawsuit when the defendant dies

Certain procedures must be followed before bringing or amending a lawsuit against the deceased defendant’s estate. For instance, an estate must be opened. Then, the court appoints a representative to step in during or for the rest of the litigation. Probate procedures can be confusing and foreign to someone with no legal background. A personal injury lawyer familiar with the Illinois Probate process can help maximize your compensation if the defendant dies either before or after you file a lawsuit.

Personal injury lawyers at Ankin Law are available for a free consultation. Call 312-600-0000 today for legal help.

What Is the Illinois Survival Act?

Under the Illinois Survival Act, you can file a lawsuit against the estate when a defendant has died, provided you do it within the required statutes of limitations. The Act also allows your estate to pursue damages from the negligent party if you die before or during litigation.

The Illinois Survival Act does not apply to cases like invasion of privacy, false imprisonment, slander, and malicious prosecution. Those cases end with the death of either the defendant or the plaintiff.

What Are the Legal Implications of the Defendant’s Death?

Your lawyer must act if the defendant dies before you file a lawsuit. You cannot serve a complaint and summons on a deceased person. Instead, you must serve these legal documents on the deceased defendant’s personal representative if the probate court has appointed one.

If the defendant dies when the lawsuit process has commenced, your lawyer must move swiftly to request the court for permission to amend the complaint, naming the personal representative as the defendant. The lawyer must also serve the personal representative with the amended complaint and summons.

You should never leave the task of opening an estate and naming a personal representative to the defendant’s spouse or children. No law requires the deceased defendant’s family members to act. In fact, delays in opening a probate estate usually work to the advantage of the defendant’s family.

How Long Do You Have to File a Claim Against the Decedent’s Estate?

The deadline for bringing claims against estates is two years from when the death happened. This deadline starts running regardless of whether the estate is open. So, a delay in opening an estate until the two-year deadline passes may work in the favor of the defendant’s family.

In the event of a delay in the naming of an estate’s personal representative, the Illinois Probate Act permits you to request the probate court to name an “Administrator to Collect.” You can serve the amended complaint and summons on that administrator.

Unlike the naming of a special representative, there is no requirement to notify the deceased defendant’s family when appointing an administrator to collect. This saves you from the hassles and the cost of searching for the deceased defendant’s family.

If the surviving loved ones of the deceased defendant have opened an estate for the defendant, initiate a claim against that estate in the probate court as soon as you can. The deadlines for bringing claims against probate estates are strict and uncompromising.

Once a Claims Notice gets published, the filing deadline for unknown creditors reduces to six months. The six-month deadline starts counting from the day of publication. The filing deadline for known creditors with a notice is 90 days after notice delivery. Known creditors who obtain a notice of disallowance, on the other hand, have only two months after obtaining the notice to file their claims.

These notices may go undetected, especially if you lack the means to check newspapers for relevant legal notices. A lawyer who knows how a personal injury lawsuit works and the consequences of missing the statute of limitations can keep track of legal notices and open a claim against the estate at the first opportunity.

Payment for a successful claim will come from the assets and property of the deceased defendant’s estate according to a priority classification system established by the Probate Act. The personal representative may try to avoid paying your claim by setting up trusts, beneficiary designations, and joint tenancy accounts. Fortunately, your lawyer can monitor the personal representative’s activities and take appropriate action in the event of a fraudulent transfer.

Estate Representation in Personal Injury Lawsuits

Your estate will file a personal injury claim if you die before taking legal action. The representative of your estate will be responsible for settling or resolving the claim on your behalf. Compensation recovered in a successful claim will go to your estate.

The court will temporarily pause your case if you die while your personal injury case is in progress. This temporary pause seeks to provide the probate court with the time it requires to name a personal representative for your estate. The personal representative can then continue with the case immediately after getting appointed.

How Can a Personal Injury Lawyer Help You After the Defendant’s Death?

The process of amending or filing a new claim against a deceased defendant’s estate can be challenging for someone without legal knowledge. The time and work necessary to comply with processes and procedures related to cases where a defendant dies can take a toll on you physically and mentally. Working with a lawyer throughout all the steps in a personal injury lawsuit can minimize the stress and allow you to pay attention to your recovery journey. Your lawyer can help you in the following ways:

Ensuring Appropriate Parties Are Named in Your Lawsuit

If you filed a claim, your claim will have the name of the deceased defendant. Your lawyer will help you substitute the name of the deceased defendant with that of the defendant’s estate.

Adhering to the Probate Code Requirements

Each state has its unique probate code requirements. A lawyer will guide you through relevant unique codes and ensure your case complies with those requirements.

Refiling Your Case Within the Statute of Limitations

The window for refiling a case against the deceased defendant’s estate is often short. Failure to meet this deadline will result in loss of your right to sue the estate and recover compensation. A lawyer will assess your case to determine how long you have to refile your case and ensure you meet that deadline.

Case Review and Investigation

Your lawyer will carefully evaluate the facts and the circumstances of the accident or incident that caused your injuries. The objective here is to determine the strengths and weaknesses of your case.

The evaluation process constitutes investigating the accident and assembling relevant evidence. This process may involve compiling physical evidence like pictures and video footage, assembling medical records, incident reports, and police reports, and talking to witnesses to obtain additional information. It may also involve obtaining the professional opinion of medical practitioners, accident reconstruction professionals, and forensic scientists.

The evidence and information obtained through a comprehensive investigation help strengthen your case. A strong case betters your odds of receiving a just and reasonable compensation from the deceased defendant’s estate.

Handling Communications and Negotiations

Effective communication and negotiation skills are essential for the success of any injury claim against the deceased defendant’s estate. A lawyer knows how long a personal injury lawsuit takes and will keep you focused on the bigger picture by communicating with you regularly.

Your lawyer must negotiate with the defendant’s insurer, support your claim with strong evidence, and convince the company to offer a reasonable settlement. The lawyer will protect your rights and best interests throughout the negotiation process.

Representation in Court

About 90% of personal injury cases settle through negotiations between plaintiffs or their personal injury lawyers and insurance companies. A trial may, however, be necessary in some cases. A lawyer will leverage his or her knowledge of court procedures and excellent litigation abilities to fight for a favorable result in court. Your lawyer will guide you through the lawsuit process, from filing the claim and conducting discovery proceedings to admitting evidence and arguing your case in court.

Maximizing Your Chance of Reasonable and Full Compensation

Seasoned personal injury lawyers can obtain higher payouts compared to individuals working alone. Experienced lawyers know how to investigate claims, determine their values accurately, negotiate skillfully with insurance companies, and provide effective court representation. What’s more, an insurance company is likely to take your claim seriously and propose a higher settlement when you have an accomplished personal injury lawyer on your side. You can count on Ankin Law to help you secure fair and full compensation when the defendant is deceased. Contact us to request a free consultation with our experienced personal injury lawyers.

Chicago personal injury and workers’ compensation attorney Howard Ankin has a passion for justice and a relentless commitment to defending injured victims throughout the Chicagoland area. With decades of experience achieving justice on behalf of the people of Chicago, Howard has earned a reputation as a proven leader in and out of the courtroom. Respected by peers and clients alike, Howard’s multifaceted approach to the law and empathetic nature have secured him a spot as an influential figure in the Illinois legal system.

Years of Experience: More than 30 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State Bar Association, U.S. District Court, Northern District of Illinois, U.S. District Court, Central District of Illinois
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