Full Text of SB2784 95th General Assembly
SB2784eng 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 |
|
|
|
SB2784 Engrossed |
- 2 - |
LRB095 17907 AJO 43987 b |
|
| 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 |
|
|
|
SB2784 Engrossed |
- 3 - |
LRB095 17907 AJO 43987 b |
|
| 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, |
|
|
|
SB2784 Engrossed |
- 4 - |
LRB095 17907 AJO 43987 b |
|
| 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.
|
|