Disclaimer: This is for informational purposes only and does not constitute legal advice.
Detailed Answer
Under Illinois law, a wrongful death action for a car accident must be brought by the personal representative of the decedent’s estate. Section 2 of the Illinois Wrongful Death Act (740 ILCS 180/2) states that the cause of action vests in the decedent’s estate and is enforceable only by a personal representative appointed under the Illinois Probate Act.
To obtain personal representative status, you generally must open a probate estate in the circuit court of the county where the decedent resided. The Probate Act (755 ILCS 5/1-1 et seq.) governs this process:
- File a petition for letters of office with the circuit court.
- Submit a certified death certificate and any wills.
- Pay the required filing fees.
- Receive letters of office appointing you as personal representative.
Once appointed, the personal representative can file the wrongful death lawsuit on behalf of the estate. Note that Illinois imposes a two-year statute of limitations on wrongful death claims (740 ILCS 180/2). Missing this deadline can bar recovery.
In limited circumstances, an estate may qualify as a “small estate” under 755 ILCS 5/18-1, allowing summary procedures for distribution of intestate assets. However, small-estate procedures do not eliminate the requirement that a personal representative file the wrongful death action.
Key Illinois statutes:
- Wrongful Death Act: 740 ILCS 180
- Probate Act (Letters of Office): 755 ILCS 5/11-1 et seq.
- Small Estate Affidavit: 755 ILCS 5/18-1
Helpful Hints
- File promptly. Wrongful death claims in Illinois must be filed within two years of the decedent’s death.
- Gather documents: certified death certificate, estate planning documents, and proof of relationship.
- Consult probate court clerks about local filing requirements and forms.
- Consider independent administration to streamline estate matters if there’s no dispute among heirs.
- Keep detailed records of funeral, medical, and related expenses for the wrongful death claim.
- Seek guidance from an attorney experienced in both probate and wrongful death litigation to ensure compliance with all procedural rules.