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How Does the Probate Process Impact a Wrongful Death Lawsuit?

Posted on September 14, 2023

When a loved one loses their life due to the negligent actions of another individual or entity, surviving family members may be able to file a wrongful death lawsuit in order to recover compensation. However, it can be challenging to understand how the probate process can impact a wrongful death lawsuit in Illinois.

What is Probate?

In Illinois, probate is the legal process necessary when administering the property of a deceased individual. When we examine the Probate Act of 1975, 755 ILCS 5/Art. XXV, we can see that a formal court proceeding will not be needed if the probate assets are valued at less than $100,000 or if an individual does not own any real estate.

Individuals who have property, assets, or business interests above $100,000 should consider working with an estate planning attorney in order to help ensure that their loved ones are provided for, that their debts are paid, and that their assets are distributed according to their wishes.

The probate process can be lengthy and stressful, particularly for the family members who are also grieving the loss of a loved one.

What is a Wrongful Death Claim?

In the state of Illinois, wrongful death claims could arise if a person loses their life as a result of the “wrongful act, neglect or default” of another individual or entity. Wrongful death claims can be brought in a situation where the deceased individual would have been able to file a personal injury claim against the at-fault party had they lived.

In Illinois, the personal representative, often referred to as the executor, of the deceased individual’s estate, is responsible for filing a wrongful death claim. If the individual died without appointing a personal representative to their estate, the court will appoint a personal representative.

The personal representative is responsible for not only pursuing the wrongful death claim but also carrying out other tasks related to the estate. This can include assisting with the probate process.

Some Aspects of Probate Will be Affected

If a person loses their life and wrongful death is suspected, then it is up to the personal representative of the deceased’s estate to file that case in court. Sometimes, there are criminal charges associated with the wrongful death, depending on how a person lost their life. For example, drunk driving offenses are considered criminal acts, so if a person lost their life due to a drunk driver, there may be criminal charges as well as a civil wrongful death lawsuit.

When there is a wrongful death claim, this can affect the probate process. During the process of executing the wishes of any will or intestate succession, there will now be the additional consideration of possible financial compensation coming from an at-fault party as a result of a wrongful death settlement or jury verdict.

Should a wrongful death lawsuit be won or a settlement occur, the personal representative will NOT have to decide how to distribute the newly acquired financial damages. Since it is unlikely that the deceased individual would have known their death would occur as a result of the wrongdoing of another, the lawsuit funds will have to be dispensed in a certain way. Just because an individual may have been slated to receive a certain amount of money from the existing assets of the deceased, this does not mean that they will obtain a specific amount of financial compensation from the wrongful death lawsuit.

Any settlement or jury verdict damage incurred from a successful wrongful death lawsuit will not impact other financial aspects of the probate process. The wrongful death payout and any other assets of the deceased will be treated as separate and distributed according to Illinois law.