Sen. Don Harmon
Filed: 3/27/2009
 
 

 




 

 		












09600SB1716sam001

LRB096 04132 AJO 24782 a






1

AMENDMENT TO SENATE BILL 1716




2
    AMENDMENT NO. ______. Amend Senate Bill 1716 by replacing 
3
everything after the enacting clause with the following:

 
4
    "Section 5. The Code of Civil Procedure is amended  by 
5
changing Section 13-209 as follows:
 



6
    (735 ILCS 5/13-209)  (from Ch. 110, par. 13-209)



7
    Sec. 13-209. Death of party. 


8
    (a) If a person entitled to bring an
action dies before the 
9
the
expiration of the time limited for the commencement 
10
thereof, and the
cause of action survives:


11
        (1) an action may be commenced by his or her

12
    representative before the expiration of that time, or 
13
    within one year
from his or her death whichever date is the 
14
    later;


15
        (2) if no petition for letters of office for the 
16
    decedent's estate has
been filed, the court may appoint a 
 


 






09600SB1716sam001
- 2 -
LRB096 04132 AJO 24782 a




1
    special representative for the deceased for
the purpose of 
2
    prosecuting the action.  The appointment shall be on 
3
    verified
motion of any party who appears entitled to 
4
    participate in the deceased's
estate, reciting the names 
5
    and last known addresses of all known heirs and the

6
    legatees and executor named in any will that has been 
7
    filed.  The court's
determination that a person appears 
8
    entitled to participate in the deceased's
estate shall be 
9
    solely for purposes of this Section and not determinative 
10
    of
rights in final disposition.  Within 90 days after 
11
    appointment, the special
representative shall notify the 
12
    heirs and legatees of the following information
by mail: 
13
    that an appointment
has been made, the court in which the 
14
    case was filed, the caption of the case,
and a description 
15
    of the nature of the case.  The special representative shall

16
    publish notice to unknown heirs and legatees as provided in 
17
    the Probate Act of
1975.  If a will is filed within 90 days 
18
    after the appointment of the special
representative, the 
19
    same notice shall be given to any additional executors and

20
    legatees named in the will.
At any time that an estate is 
21
    opened with a representative other than the
special 
22
    representative, the court may upon motion substitute the

23
    representative for the special representative.  In this 
24
    case, the court shall
allow disbursements and fees of the 
25
    special representative and his or her
attorney as a claim 
26
    against any proceeds received.  The proceeds of any
judgment 
 


 






09600SB1716sam001
- 3 -
LRB096 04132 AJO 24782 a




1
    or settlement shall be distributed under the provisions of 
2
    the
Probate Act of 1975.

3
    (b) If a person against whom an
action may be brought dies 
4
before the expiration of the time limited for
the commencement 
5
thereof, and the cause of action survives, and is not
otherwise 
6
barred:


7
        (1)  an action may be commenced against his or her 
8
    personal
representative after the expiration of the time 
9
    limited for the
commencement of the action, and within 6 
10
    months after the person's death;


11
        (2) if no petition has been filed for letters of office 
12
    for the
deceased's
estate, the court, upon the motion of a 
13
    person entitled to bring an action and
after the notice to 
14
    the party's heirs or legatees as the court directs and

15
    without opening an estate, may appoint a special 
16
    representative for the
deceased party for the purposes of 
17
    defending the action.  If a party elects to
have a special 
18
    representative appointed under this paragraph (2), the 
19
    recovery
shall
be
limited to
the proceeds of any liability 
20
    insurance protecting the estate and shall not bar
the 
21
    estate from enforcing any claims that might have been 
22
    available to it as
counterclaims. 

23
    (c) If a party commences an action against a deceased 
24
person whose
death is unknown to the party before the 
25
expiration of the time limited for
the commencement thereof, 
26
and the cause of action survives, and is not
otherwise barred, 
 


 






09600SB1716sam001
- 4 -
LRB096 04132 AJO 24782 a




1
the action may be commenced against the deceased person's

2
personal representative if all of the following terms and 
3
conditions are met:


4
        (1) After learning of the death, the party proceeds 
5
    with reasonable
diligence to move the court for leave to 
6
    file an amended complaint,
substituting the personal 
7
    representative as defendant.


8
        (2) The party proceeds with reasonable diligence to 
9
    serve process upon
the personal representative.


10
        (3) If process is served more than 6 months after the 
11
    issuance of
letters of office, liability of the estate is 
12
    limited as to recovery to the
extent the estate is 
13
    protected by liability insurance.


14
        (4) In no event can a party commence an action under 
15
    this subsection (c)
unless a personal representative is 
16
    appointed and an amended complaint is
filed within 2 years 
17
    of the time limited for the commencement of the original

18
    action.

19
(Source: P.A. 90-111, eff. 7-14-97.)".