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90_HB0297eng
735 ILCS 5/2-1008 from Ch. 110, par. 2-1008
735 ILCS 5/13-209 from Ch. 110, par. 13-209
Amends the Code of Civil Procedure. Provides that when a
party or potential party to an action dies, the court may
appoint a special representative for the deceased for that
suit without the appointment being made in separate probate
proceedings. Provides that the appointment shall be made
upon the verified motion of a party entitled to participate
in the deceased's estate or upon the motion of a person
filing an action against the estate and that the special
representative shall give notice of the proceedings to the
heirs, legatees, and executors. Provides that the proceeds
from a judgment or settlement for the estate shall be
distributed under the Probate Act of 1975 and that the
recovery of a judgment against the estate shall be limited to
the amount of the estate's liability insurance. Excludes a
pending action under the Wrongful Death Act from these
provisions.
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1 AN ACT to amend the Code of Civil Procedure by changing
2 Sections 2-1008 and 13-209.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Code of Civil Procedure is amended by
6 changing Sections 2-1008 and 13-209 as follows:
7 (735 ILCS 5/2-1008) (from Ch. 110, par. 2-1008)
8 Sec. 2-1008. Abatement; change of interest or liability;
9 substitution of parties.
10 (a) Change of interest or liability. If by reason of
11 marriage, bankruptcy, assignment, or any other event
12 occurring after the commencement of a cause or proceeding,
13 either before or after judgment, causing a change or
14 transmission of interest or liability, or by reason of any
15 person interested coming into existence after commencement of
16 the action, it becomes necessary or desirable that any person
17 not already a party be before the court, or that any person
18 already a party be made party in another capacity, the action
19 does not abate, but on motion an order may be entered that
20 the proper parties be substituted or added, and that the
21 cause or proceeding be carried on with the remaining parties
22 and new parties, with or without a change in the title of the
23 cause.
24 (b) Death. If a party to an action dies and the action
25 is one which survives, the proper party or parties may be
26 substituted by order of court upon motion as follows:.
27 (1) If no petition for letters of office for the
28 decedent's estate has been filed, the court may appoint a
29 special representative for the deceased for the purpose
30 of prosecuting the action. The appointment shall be on
31 verified motion of any party who appears entitled to
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1 participate in the deceased's estate, reciting the names
2 and last known addresses of all known heirs and the
3 legatees and executor named in any will that has been
4 filed. The court's determination that a person appears
5 entitled to participate in the deceased's estate shall be
6 solely for purposes of this Section and not determinative
7 of rights in final disposition. Within 90 days after
8 appointment, the special representative shall notify the
9 heirs and legatees of the following information by mail:
10 that an appointment has been made, the court in which the
11 case was filed, the caption of the case, and a
12 description of the nature of the case. The special
13 representative shall publish notice to unknown heirs and
14 legatees as provided in the Probate Act of 1975. If a
15 will is filed within 90 days after the appointment of the
16 special representative, the same notice shall be given to
17 any additional executors and legatees named in the will.
18 At any time that an estate is opened with a
19 representative other than the special representative, the
20 court may upon motion substitute the representative for
21 the special representative. In this case, the court
22 shall allow disbursements and fees of the special
23 representative and his or her attorney as a claim against
24 any proceeds received. The proceeds of any judgment or
25 settlement shall be distributed under the provisions of
26 the Probate Act of 1975. This paragraph (1) does not
27 apply to actions pending under the Wrongful Death Act.
28 (2) If a person against whom an action has been
29 brought dies, and the cause of action survives and is not
30 otherwise barred, his or her personal representative
31 shall be substituted as a party. If no petition has been
32 filed for letters of office for the deceased's estate,
33 the court, upon the motion of a person bringing an action
34 and after the notice to the party's heirs or legatees as
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1 the court directs and without opening an estate, may
2 appoint a special representative for the deceased party
3 for the purposes of defending the action. If a party
4 elects to have a special representative appointed under
5 this paragraph (2), the recovery shall be limited to the
6 proceeds of any liability insurance protecting the estate
7 and shall not bar the estate from enforcing any claims
8 that might have been available to it as counterclaims.
9 If a motion to substitute is not filed within 90 days
10 after the death is suggested of record, the action may be
11 dismissed as to the deceased party.
12 If the death of a party to a personal action is suggested
13 of record and no petition for letters of office for his or
14 her estate has been filed, the court, upon motion and after
15 such notice to the party's heirs or legatees as the court
16 directs, and without opening of an estate, may appoint a
17 special administrator for the deceased party for the purpose
18 of prosecuting or defending the action. If a legal
19 representative is appointed for the estate before judgment is
20 entered, and his or her appointment is suggested of record in
21 the action, the court shall order that the representative be
22 substituted for the special administrator.
23 If a judgment is entered or the action is settled in
24 favor of the special administrator, he or she shall
25 distribute the proceeds as provided by law, except that if
26 proceeds in excess of $1,000 are distributable to a minor or
27 person under legal disability, the court shall allow
28 disbursements and fees to the special administrator and his
29 or her attorney and the balance shall be administered and
30 distributed under the supervision of the probate division of
31 the court.
32 In the event of the death of a party in an action in
33 which the right sought to be enforced survives only as to the
34 remaining parties to the action, the action does not abate.
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1 The death shall be suggested of record and the action shall
2 proceed in favor of or against the remaining parties.
3 No action brought for the use of another abates by reason
4 of the death of the plaintiff whose name is used but may be
5 maintained by the party for whose use it was brought in his
6 or her own name upon suggesting the death of record and the
7 entry of an order of substitution.
8 (c) Legal disability. If a party is declared to be a
9 person under legal disability, that fact shall be suggested
10 of record and the prosecution or defense shall be maintained
11 by his or her representative, guardian ad litem or next
12 friend, as may be appropriate.
13 (d) Trustees; public officers. If any trustee or any
14 public officer ceases to hold the trust or office and that
15 fact is suggested of record, the action shall proceed in
16 favor of or against his or her successor.
17 (e) Service of process. Parties against whom relief is
18 sought, substituted under subsection (a) hereof, shall be
19 brought in by service of process. Service of process on
20 parties substituted under subsections (b), (c), and (d)
21 hereof is not required, but notice shall be given as the
22 court may direct.
23 (Source: P.A. 83-707.)
24 (735 ILCS 5/13-209) (from Ch. 110, par. 13-209)
25 Sec. 13-209. Death of party.
26 (a) If a person entitled to bring an action dies before
27 the expiration of the time limited for the commencement
28 thereof, and the cause of action survives:,
29 (1) an action may be commenced by his or her
30 representative before the expiration of that time, or
31 within one year from his or her death whichever date is
32 the later;
33 (2) if no petition for letters of office for the
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1 decedent's estate has been filed, the court may appoint a
2 special representative for the deceased for the purpose
3 of prosecuting the action. The appointment shall be on
4 verified motion of any party who appears entitled to
5 participate in the deceased's estate, reciting the names
6 and last known addresses of all known heirs and the
7 legatees and executor named in any will that has been
8 filed. The court's determination that a person appears
9 entitled to participate in the deceased's estate shall be
10 solely for purposes of this Section and not determinative
11 of rights in final disposition. Within 90 days after
12 appointment, the special representative shall notify the
13 heirs and legatees of the following information by mail:
14 that an appointment has been made, the court in which the
15 case was filed, the caption of the case, and a
16 description of the nature of the case. The special
17 representative shall publish notice to unknown heirs and
18 legatees as provided in the Probate Act of 1975. If a
19 will is filed within 90 days after the appointment of the
20 special representative, the same notice shall be given to
21 any additional executors and legatees named in the will.
22 At any time that an estate is opened with a
23 representative other than the special representative, the
24 court may upon motion substitute the representative for
25 the special representative. In this case, the court
26 shall allow disbursements and fees of the special
27 representative and his or her attorney as a claim against
28 any proceeds received. The proceeds of any judgment or
29 settlement shall be distributed under the provisions of
30 the Probate Act of 1975.
31 (b) If a person against whom an action may be brought
32 dies before the expiration of the time limited for the
33 commencement thereof, and the cause of action survives, and
34 is not otherwise barred:,
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1 (1) an action may be commenced against his or her
2 personal representative after the expiration of the time
3 limited for the commencement of the action, and within 6
4 months after the person's death;
5 (2) if no petition has been filed for letters of
6 office for the deceased's estate, the court, upon the
7 motion of a person entitled to bring an action and after
8 the notice to the party's heirs or legatees as the court
9 directs and without opening an estate, may appoint a
10 special representative for the deceased party for the
11 purposes of defending the action. If a party elects to
12 have a special representative appointed under this
13 paragraph (2), the recovery shall be limited to the
14 proceeds of any liability insurance protecting the estate
15 and shall not bar the estate from enforcing any claims
16 that might have been available to it as counterclaims.
17 (c) If a party commences an action against a deceased
18 person whose death is unknown to the party before the
19 expiration of the time limited for the commencement thereof,
20 and the cause of action survives, and is not otherwise
21 barred, the action may be commenced against the deceased
22 person's personal representative if all of the following
23 terms and conditions are met:
24 (1) After learning of the death, the party proceeds
25 with reasonable diligence to move the court for leave to
26 file an amended complaint, substituting the personal
27 representative as defendant.
28 (2) The party proceeds with reasonable diligence to
29 serve process upon the personal representative.
30 (3) If process is served more than 6 months after
31 the issuance of letters of office, liability of the
32 estate is limited as to recovery to the extent the estate
33 is protected by liability insurance.
34 (4) In no event can a party commence an action
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1 under this subsection (c) unless a personal
2 representative is appointed and an amended complaint is
3 filed within 2 years of the time limited for the
4 commencement of the original action.
5 (Source: P.A. 86-793; 86-815; 86-1028.)