SB2784 95TH GENERAL ASSEMBLY

LRB095 17907 AJO 43987 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB2784

Introduced 2/15/2008, by Sen. Don Harmon

SYNOPSIS AS INTRODUCED:

735 ILCS 5/13-209

from Ch. 110, par. 13-209

Amends the Code of Civil Procedure. Provides that when a person dies before an action is filed against him or her, a court may appoint a special representative for that decedent, against whom an action may be brought without opening an estate. Deletes a provision requiring notice to heirs or legatees as the court directs, and provides instead that the plaintiff must notify all known heirs or legatees of the decedent by U.S. mail. Provides that any interested person may be substituted as the special representative for good cause shown. Provides that proceeding under this provision shall not bar the estate from filing counterclaims. Deletes a provision limiting recovery to proceeds of any liability insurance available to the estate. Provides that these changes apply to actions commenced or pending on or after the effective date of this amendatory Act. Effective immediately.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by changing Section 13-209 as follows:

(735 ILCS 5/13-209) (from Ch. 110, par. 13-209)

Sec. 13-209. Death of party.

(a) If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives:

(1) an action may be commenced by his or her representative before the expiration of that time, or within one year from his or her death whichever date is the later;

(2) if no petition for letters of office for the decedent's estate has been filed, the court may appoint a special representative for the deceased for the purpose of prosecuting the action. The appointment shall be on verified motion of any party who appears entitled to participate in the deceased's estate, reciting the names and last known addresses of all known heirs and the legatees and executor named in any will that has been filed. The court's determination that a person appears entitled to participate in the deceased's estate shall be solely for purposes of this Section and not determinative of rights in final disposition. Within 90 days after appointment, the special representative shall notify the heirs and legatees of the following information by mail: that an appointment has been made, the court in which the case was filed, the caption of the case, and a description of the nature of the case. The special representative shall publish notice to unknown heirs and legatees as provided in the Probate Act of 1975. If a will is filed within 90 days after the appointment of the special representative, the same notice shall be given to any additional executors and legatees named in the will. At any time that an estate is opened with a representative other than the special representative, the court may upon motion substitute the representative for the special representative. In this case, the court shall allow disbursements and fees of the special representative and his or her attorney as a claim against any proceeds received. The proceeds of any judgment or settlement shall be distributed under the provisions of the Probate Act of 1975.

(b) If a person against whom an action may be brought dies before an action is filed against him or her, and before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred:

(1) an action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within 6 months after the person's death;

(2) if no petition has been filed for letters of office for the deceased's estate, the court, upon the motion of a person entitled to bring an action, and after the notice to the party's heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action. Proceeding under this provision If a party elects to have a special representative appointed under this paragraph (2), the recovery shall be limited to the proceeds of any liability insurance protecting the estate and shall not bar the estate from enforcing any claims that might have been available to it as counterclaims.

(3) After appointment of the special representative for the deceased party, plaintiff shall give notice of the appointment by U.S. mail to all known heirs or legatees of the decedent.

(4) Any interested person may be substituted as the special representative for good cause shown.

(c) If a party commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, the action may be commenced against the deceased person's personal representative if all of the following terms and conditions are met:

(1) After learning of the death, the party proceeds with reasonable diligence to move the court for leave to file an amended complaint, substituting the personal representative as defendant.

(2) The party proceeds with reasonable diligence to serve process upon the personal representative.

(3) If process is served more than 6 months after the issuance of letters of office, liability of the estate is limited as to recovery to the extent the estate is protected by liability insurance.

(4) In no event can a party commence an action under this subsection (c) unless a personal representative is appointed and an amended complaint is filed within 2 years of the time limited for the commencement of the original action.

The changes to this Section made by this amendatory Act of the 95th General Assembly apply to actions commenced or pending on or after the effective date of this amendatory Act of the 95th General Assembly.

(Source: P.A. 90-111, eff. 7-14-97.)

Section 99. Effective date. This Act takes effect upon becoming law.