The Probate Process in Illinois Wrongful Death Claims

Award-Winning Wrongful Death Lawsuit Attorneys in Naperville, Chicago, St. Charles, and Throughout Illinois

Losing a loved one is devastating. When that loss is caused by someone else’s negligence or wrongdoing, families must confront not only grief but also legal, financial, and administrative decisions. In Illinois, wrongful death claims and related probate matters follow specific statutory rules and court procedures.

At John J. Malm & Associates, our experienced Illinois wrongful death lawyers have spent decades helping families throughout Illinois, including Naperville, Chicago, Bolingbrook, Will County, and DuPage County, navigate the complex wrongful death and probate process. We guide families through every step of a wrongful death claim, from appointment of a personal representative and filing claims, to negotiating settlements or taking cases to trial, while protecting their rights and fighting for the maximum compensation available. Compassion, diligence, and results-driven advocacy are the cornerstones of our approach, ensuring that grieving families are supported both legally and personally.

“When a family loses someone due to another’s negligence, the legal system can feel confusing and cold. Our job is to guide families through probate and litigation with compassion, protect their legal rights, and make sure any recovery is handled carefully and fairly so the family can begin to rebuild.” — John J. Malm, Naperville wrongful death lawsuit attorney

Wrongful Death vs. Survival Action

• A wrongful death action under the Illinois Wrongful Death Act (740 ILCS 180) is brought for the benefit of the decedent’s survivors, typically the spouse and next of kin, to recover the family’s loss (lost financial support, loss of society, funeral expenses, etc.). The statute requires the action be brought in the name of the decedent’s personal representative.
• A survival action is a separate claim that belongs to the decedent’s estate and is designed to recover damages the decedent could have pursued had they lived, such as medical expenses, lost earnings up to the time of death, and pain and suffering endured before death. Survival actions are pursued by the personal representative on behalf of the estate and are governed by probate law. Many families bring both claims to ensure all recoverable losses are pursued.

Why the distinction matters: wrongful death damages compensate survivors for their loss; survival damages compensate the decedent’s estate for losses the decedent suffered. Both types of recovery can and often do proceed in the same lawsuit, but the legal theory and distribution rules differ.

Who Must (and Who Can) Bring the Wrongful Death Lawsuit?

• Illinois law states that wrongful death actions “shall be brought by and in the names of the personal representatives of such deceased person” and that the recovery is for the exclusive benefit of the surviving spouse and next of kin. That means the lawsuit is filed by the estate’s representative, not directly by a family member.
• The personal representative may be named in the decedent’s will (executor) or appointed by the probate court as an administrator if there is no will. Appointment of a personal representative is a probate court function under the Illinois Probate Act (755 ILCS 5).

Practical consequence: before a wrongful death or survival action can be pursued, someone usually needs to be appointed or authorized to act for the estate, often by filing a petition for probate or for issuance of letters of administration.

How Wrongful Death Recovery Flows Through Probate

• Opening an estate/appointment: To pursue wrongful death or survival claims, an interested person (often the surviving spouse or next of kin) will petition the appropriate circuit court to be appointed personal representative. The court issues letters testamentary or letters of administration, authorizing the representative to act for the estate. The Illinois Probate Act sets the procedures and notices required for opening the estate.
• Filing claims: The personal representative files the wrongful death/survival action in civil court. Although the action is civil, the representative’s authority derives from probate appointment and estate law. Because the representative acts in a fiduciary capacity, they must safeguard estate assets and act in the interests of beneficiaries.
• Settlement or verdict: If the case settles or results in a jury award, settlement funds typically become part of the estate if a survival claim is included, or they may be held and distributed specifically under the Wrongful Death Act distribution rules if they represent wrongful death recoveries. The probate court often has a role in approving distributions, especially when there is any dispute about who is entitled to share in the recovery.

Tip: In some cases, Illinois wrongful death lawyers will request that settlement funds be deposited into the estate or escrow account pending a dependency determination or court approval to avoid later disputes over distribution. This protects the personal representative and ensures fair handling for all next of kin.

What Damages Are Recoverable (and Who Gets Them)?

Wrongful death damages (for survivors)

• Lost financial support and services the decedent would have provided.
• Loss of society, companionship, and consortium.
• Funeral and burial expenses (recoverable under the Wrongful Death Act and sometimes within the estate’s claims).
• In limited cases, punitive damages may be available where the defendant’s conduct was willful or malicious.

Survival damages (for the estate)

• Medical expenses related to the decedent’s final injury or illness.
• Lost earnings or income the decedent would have earned between injury and death.
• Pain and suffering experienced by the decedent between injury and death.
• Other pecuniary losses the decedent incurred prior to death.

Distribution rules

• The Wrongful Death Act provides that the amount recovered in a wrongful death action “shall be for the exclusive benefit of the surviving spouse and next of kin,” and that distribution among surviving parties is determined by the court based on the percentage of dependency of each person upon the deceased. This means distribution is not necessarily equal but based on demonstrated dependency.

Practical example (how dependency can affect shares): a surviving spouse with minor children who depended economically on the decedent will likely receive a larger portion of recovery than more distant relatives. The court will consider each claimant’s demonstrated financial reliance on the decedent when allocating recoveries.

Probate Steps Commonly Involved When Wrongful Death is at Issue

• 1. Emergency steps & immediate filings
  • Obtain death certificate and preservation of evidence (medical records, police report).
  • File a petition to open probate or an application for appointment of an administrator if immediate authority is required to act.
• 2. Appointment of personal representative
  • Court issues letters allowing the representative to sue on behalf of the estate and make estate payments. The representative has fiduciary duties under the Probate Act.
• 3. Notice to potential creditors & claim handling
  • The estate must handle creditor claims and funeral expenses properly; notice requirements may apply. Settlements that satisfy estate debts and funeral costs may be prioritized.
• 4. Litigation/settlement
  • The representative pursues wrongful death and survival claims. If settlement occurs, the terms should specify how funds are allocated between wrongful death and survival claims.
• 5. Dependency hearing/distribution
  • If disputes arise about who is a dependent or how much each person depended on the decedent, the court may hold a hearing to allocate the wrongful death recovery. The probate court can supervise distribution to ensure statutory compliance.

Practical Issues and Common Wrongful Death Lawsuit Complications

• Concurrent claims and double recovery: Because survival and wrongful death damages may overlap on certain losses (e.g., funeral expenses), careful legal drafting and accounting are necessary to ensure recoveries are allocated correctly and not duplicated. Experienced counsel will structure settlement language to avoid double recovery problems.
• Estate debts and priority: If the decedent left debts, the personal representative must pay valid claims from estate funds. Depending on timing and the estate’s liquidity, creditors can complicate distribution of wrongful death proceeds; sometimes a probate court must approve distributions to reconcile competing claims.
• Claims against the estate: If the person alleged to be at fault dies in the same incident, a wrongful death claim may still proceed against that person’s estate, but procedures differ and the opposing estate will have its own representation and possible defenses.

Important Wrongful Death Probate Timelines

• Statute of limitations: In Illinois, most wrongful death actions must be filed within two years of the date of death, though exceptions can apply depending on the type of case (for example, medical malpractice claims and special tolling rules). Acting promptly preserves evidence and legal options.
• Probate timing: Appointment of a personal representative can occur quickly in emergency scenarios, but full probate administration (notice, creditor claims, asset marshaling) may take months to years depending on complexity. For wrongful death litigation, plaintiffs and counsel often coordinate settlement timelines with the probate process.

Frequently Asked Questions (FAQ) about the Wrongful Death Probate Process

Q: Who actually sues, the spouse or the estate?
A: The personal representative of the decedent’s estate sues in the name of the estate. Surviving family members are the beneficiaries of a wrongful death recovery, but the estate’s representative files and manages the lawsuit.

Q: Can I pursue both wrongful death and survival claims?
A: Yes. Many cases include both claims: the wrongful death action compensates survivors, and the survival action recovers the decedent’s own pre-death losses. Both are usually handled together by the estate’s representative.

Q: How is a wrongful death settlement divided among family members?
A: Illinois directs courts to distribute wrongful death proceeds among surviving spouse and next of kin according to their degree of dependency on the decedent. Courts may hold dependency hearings to determine proportions.

Q: What happens if the decedent didn’t have a will?
A: The probate court will appoint an administrator to act as personal representative. State intestacy rules govern who inherits the estate.

Q: How long will the process take?
A: There is no one-size-fits-all timeline. Rapid appointment of a representative can be quick, but litigation, settlement negotiations, and probate administration timelines vary with complexity.

How an Experienced Illinois Wrongful Death Attorney Helps

• Promptly files for appointment of a personal representative when necessary and navigates probate procedures.
• Coordinates wrongful death and survival claims to maximize recovery while avoiding double recovery issues.
• Works with medical, economic, and vocational experts to document damages (medical bills, lost earnings, pain and suffering, dependency).
• Manages settlement deposits, petitions for distribution, and dependency hearings so funds are apportioned correctly under Illinois law.

An attorney’s familiarity with both probate and wrongful death statutes, along with court practices in your county, can materially affect the speed and value of recovery.

Contact the Compassionate Illinois Wrongful Death Lawyers at John J. Malm & Associates

If your family has lost a loved one due to another party’s negligence, you don’t have to face the wrongful death and probate process alone. At John J. Malm & Associates, we provide compassionate guidance and aggressive representation to help you pursue the compensation your family deserves. From securing appointment as the personal representative to managing claims and court procedures, our top-rated Illinois wrongful death lawsuit attorneys handle the legal complexities so you can focus on healing.

Contact our office today for a free, no-obligation consultation. Let our experienced team help you navigate the process, protect your rights, and obtain justice for your loved one.