Illinois General Assembly - Full Text of SB2784
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Full Text of SB2784  95th General Assembly



SB2784 Engrossed LRB095 17907 AJO 43987 b

1     AN ACT concerning civil law.
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
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 expiration of the time limited for the commencement thereof,
10 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
17     special representative for the deceased for the purpose of
18     prosecuting the action. The appointment shall be on
19     verified motion of any party who appears entitled to
20     participate in the deceased's estate, reciting the names
21     and last known addresses of all known heirs and the
22     legatees and executor named in any will that has been
23     filed. The court's determination that a person appears



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1     entitled to participate in the deceased's estate shall be
2     solely for purposes of this Section and not determinative
3     of rights in final disposition. Within 90 days after
4     appointment, the special representative shall notify the
5     heirs and legatees of the following information by mail:
6     that an appointment has been made, the court in which the
7     case was filed, the caption of the case, and a description
8     of the nature of the case. The special representative shall
9     publish notice to unknown heirs and legatees as provided in
10     the Probate Act of 1975. If a will is filed within 90 days
11     after the appointment of the special representative, the
12     same notice shall be given to any additional executors and
13     legatees named in the will. At any time that an estate is
14     opened with a representative other than the special
15     representative, the court may upon motion substitute the
16     representative for the special representative. In this
17     case, the court shall allow disbursements and fees of the
18     special representative and his or her attorney as a claim
19     against any proceeds received. The proceeds of any judgment
20     or settlement shall be distributed under the provisions of
21     the Probate Act of 1975.
22     (b) If a person against whom an action may be brought dies
23 before an action is filed against him or her, and before the
24 expiration of the time limited for the commencement thereof,
25 and the cause of action survives, and is not otherwise barred:
26         (1) an action may be commenced against his or her



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1     personal representative after the expiration of the time
2     limited for the commencement of the action, and within 6
3     months after the person's death;
4         (2) if no petition has been filed for letters of office
5     for the deceased's estate, the court, upon the motion of a
6     person entitled to bring an action, and after the notice to
7     the party's heirs or legatees as the court directs and
8     without opening an estate, may appoint a special
9     representative for the deceased party for the purposes of
10     defending the action. Proceeding under this provision If a
11     party elects to have a special representative appointed
12     under this paragraph (2), the recovery shall be limited to
13     the proceeds of any liability insurance protecting the
14     estate and shall not bar the estate from enforcing any
15     claims that might have been available to it as
16     counterclaims.
17         (3) After appointment of the special representative
18     for the deceased party, plaintiff shall give notice of the
19     appointment by U.S. mail to all known heirs or legatees of
20     the decedent.
21         (4) Any interested person may be substituted as the
22     special representative for good cause shown.
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,



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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     The changes to this Section made by this amendatory Act of
20 the 95th General Assembly apply to actions commenced or pending
21 on or after the effective date of this amendatory Act of the
22 95th General Assembly.
23 (Source: P.A. 90-111, eff. 7-14-97.)
24     Section 99. Effective date. This Act takes effect upon
25 becoming law.