Wrongful death claims compensate family members for the unlawful killing of a loved one. This is a civil claim, not a criminal one, and family members can receive monetary damages from the defendant if they are successful. One key consideration is who can file a claim for wrongful death in Illinois. To answer that question, our Joliet wrongful death lawyer analyzes the relevant statute.
Who Can File a Wrongful Death Claim?
Illinois’s wrongful death law states that the personal representative of the deceased person’s estate will file the wrongful death lawsuit. When someone dies with a will, then the personal representative should be named in it.
Unfortunately, many people die without a will, so the probate court must appoint someone to serve in this capacity. A judge might appoint the surviving spouse, an elder child, or someone else who steps forward to serve.
Who Makes an Effective Personal Representative?
This person has important tasks in probate. Filing a wrongful death suit is only one of them. Suppose a loved one died intestate, meaning they had no will. In many cases, their surviving spouse will serve as the personal representative or one of the children will decide to serve.
A personal representative should be organized and good at meeting deadlines. A wrongful death case must be filed within two years of the death in most situations, and a disorganized personal representative could cost the estate considerable money. Similarly, a personal representative should not be intimidated by legal language.
Helpfully, the representative can hire a lawyer to help them with a claim for wrongful death in Illinois. The lawyer knows how to file the correct legal pleadings and open negotiations with the defendant. Call Michael J. Lichner if you need an experienced wrongful death attorney in Will County.
Deadlines for Filing a Wrongful Death Lawsuit in Illinois
If you were named as a personal representative—or if a loved one died and the case is in probate—you should quickly contact a lawyer.
As with all personal injury claims, wrongful death is subject to a statute of limitations. This is the maximum amount of time a personal representative has to file the case in court. Under 740 ILCS 180/2(d), the personal representative must file most wrongful death actions within two years of the victim’s death.
However, if the deceased died in a violent attack, then the deadline is at least 5 years from the date of death or within one year of the end of the criminal case.
Although most personal injury cases are settled outside of court, this statutory deadline still matters. If you go past it for some reason, then the defendant faces little pressure to settle since they know you cannot successfully sue them. They might simply ignore your calls and letters or else offer a small settlement and refuse to budge.
Call our office to speak with a Joliet wrongful death attorney who can check when the statutory period ends. Michael J. Lichner can file a lawsuit in an appropriate court.
Who Receives Compensation from a Wrongful Death Claim?
Although the personal representative files the lawsuit, Illinois law states that damages go to the surviving spouse and next of kin. Generally, “next of kin” are relatives who were dependent financially on the deceased victim.
Suppose an elderly mother lived with her son who was killed in a motorcycle accident. This parent depended financially on the deceased, so she should qualify as next of kin and receive compensation from a wrongful death claim. The same is true of a disabled sibling who lives with the deceased or otherwise depends on them financially.
Compensation is divided between the surviving spouse and any next of kin. They can agree on how to distribute the proceeds or if there is disagreement, the probate court will decide each person’s share. In many cases, the surviving spouse will receive the largest share of compensation.
Settling a Wrongful Death Claim Outside of Court
Defendants often resist any allegation that they were responsible for a loved one’s death. For example, a careless driver might have backed up over your spouse, killing them instantly. In this situation, the driver might try to claim the deceased darted behind the vehicle and is really to blame.
However, once liability becomes clear, many defendants suddenly want to settle instead of taking their chances in front of a jury. The odds of suffering a huge jury verdict against them often prompt defendants (and their insurance companies) to settle outside of court for a fair amount of compensation. That way, they can limit what they end up paying.
Nonetheless, it’s critical to file a lawsuit before the expiration of the statute of limitation. Family members should reach out to Michael J. Lichner if they have questions about who can file a wrongful death claim.
Do Not File Without a Lawyer’s Help
Some personal representatives try to handle all legal issues themselves. Instead, you can hire a knowledgeable lawyer to handle the wrongful death claim from beginning to end.
A non-lawyer is unlikely to know what evidence is available to prove wrongful death or how to secure it. They also do not know how to draft legal pleadings.
One misconception is that judges take it easy on personal representatives. That’s not the case. If you are serving, then you have duties you must fulfill.
Helping Surviving Family Members After a Devastating Loss
Did you lose a beloved family member in a tragic accident or a violent attack? Under Illinois law, you might qualify for compensation. Reach out to Michael J. Lichner to begin learning what steps you need to take. Filing the lawsuit is only one step along the way to obtaining meaningful compensation and a sense of justice. Contact us today to schedule a free consultation.