Full Text of SB2784 95th General Assembly
SB2784 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 SB2784
Introduced 2/15/2008, by Sen. Don Harmon SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/13-209 |
from Ch. 110, par. 13-209 |
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Amends the Code of Civil Procedure. Provides that when a person dies before an action is filed against him or her, a court may appoint a special representative for that decedent, against whom an action may be brought without opening an estate. Deletes a provision requiring notice to heirs or legatees as the court directs, and provides instead that the plaintiff must notify all known heirs or legatees of the decedent by U.S. mail. Provides that any interested person may be substituted as the special representative for good cause shown. Provides that proceeding under this provision shall not bar the estate from filing counterclaims. Deletes a provision limiting recovery to proceeds of any liability insurance available to the estate. Provides that these changes apply to actions commenced or pending on or after the effective date of this amendatory Act. Effective immediately.
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A BILL FOR
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SB2784 |
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LRB095 17907 AJO 43987 b |
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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
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| expiration of the time limited for the commencement thereof, | 10 |
| 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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SB2784 |
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LRB095 17907 AJO 43987 b |
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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 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:
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| (1) an action may be commenced against his or her |
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SB2784 |
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LRB095 17907 AJO 43987 b |
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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. 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
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| 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
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| 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.
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| (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, |
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LRB095 17907 AJO 43987 b |
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| the action may be commenced against the deceased person's
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| personal representative if all of the following terms and | 3 |
| conditions are met:
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| (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.
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| (2) The party proceeds with reasonable diligence to | 9 |
| serve process upon
the personal representative.
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| (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.
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| (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
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| action.
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| 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.
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| (Source: P.A. 90-111, eff. 7-14-97.)
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| Section 99. Effective date. This Act takes effect upon | 25 |
| becoming law.
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