Full Text of SB1716 96th General Assembly
SB1716eng 96TH GENERAL ASSEMBLY
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Section 13-209 as follows:
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| (735 ILCS 5/13-209) (from Ch. 110, par. 13-209)
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| Sec. 13-209. Death of party.
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| (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:
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| (1) an action may be commenced by his or her
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| representative before the expiration of that time, or | 13 |
| within one year
from his or her death whichever date is the | 14 |
| later;
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| (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
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| legatees and executor named in any will that has been | 23 |
| filed. The court's
determination that a person appears |
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| 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
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| 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
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| 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
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| 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.
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| (b) If a person against whom an
action may be brought dies | 23 |
| before the expiration of the time limited for
the commencement | 24 |
| thereof, and the cause of action survives, and is not
otherwise | 25 |
| barred:
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| (1) an action may be commenced against his or her |
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| 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;
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| (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
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| without opening an estate, may appoint a special | 9 |
| representative for the
deceased party for the purposes of | 10 |
| defending the action. If a party elects to
have a special | 11 |
| representative appointed under this paragraph (2), the | 12 |
| recovery
shall
be
limited to
the proceeds of any liability | 13 |
| insurance protecting the estate and shall not bar
the | 14 |
| estate from enforcing any claims that might have been | 15 |
| available to it as
counterclaims.
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| (c) If a party commences an action against a deceased | 17 |
| person whose
death is unknown to the party before the | 18 |
| expiration of the time limited for
the commencement thereof, | 19 |
| and the cause of action survives, and is not
otherwise barred, | 20 |
| the action may be commenced against the deceased person's
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| personal representative if all of the following terms and | 22 |
| conditions are met:
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| (1) After learning of the death, the party proceeds | 24 |
| with reasonable
diligence to move the court for leave to | 25 |
| file an amended complaint,
substituting the personal | 26 |
| representative as defendant.
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| (2) The party proceeds with reasonable diligence to | 2 |
| serve process upon
the personal representative.
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| (3) If process is served more than 6 months after the | 4 |
| issuance of
letters of office, liability of the estate is | 5 |
| limited as to recovery to the
extent the estate is | 6 |
| protected by liability insurance.
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| (4) In no event can a party commence an action under | 8 |
| this subsection (c)
unless a personal representative is | 9 |
| appointed and an amended complaint is
filed within 2 years | 10 |
| of the time limited for the commencement of the original
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| action.
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| (Source: P.A. 90-111, eff. 7-14-97.)
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