6.5 Disposition of Decedents' Actions


(1.) The procedure to be followed in cases involving actions for wrongful death or for personal injury brought by a representative on behalf of a decedent's estate shall be as follows:

(a) The judge hearing the case, upon the approval of a settlement as fair and reasonable or upon the entry of a judgment, shall adjudicate liens, determine the expenses, including attorneys' compensation, to be deducted from the settlement or judgment and shall determine the net amount distributable to each person entitled thereto pursuant to the provisions of the Wrongful Death Act or the Probate Act.

(b) In actions filed pursuant to the Wrongful Death Act brought by a personal representative appointed by the Probate Division, the distributable amount, based on dependency, shall be accounted for and administered in the Probate Division.

(c) In actions which survive the plaintiff's death, the order approving the settlement or the order entering the judgment shall provide that the amount distributable is an asset of the decedent's estate and shall be distributed through the Probate Division pursuant to the provisions of the Probate Act.

(d) Except as otherwise limited by rule or statute, attorneys' compensation shall not exceed one-third of the recovery if the case is disposed of in the trial court by settlement or trial. If an appeal is perfected, the compensation to be paid to the attorney shall not in any event exceed one half of the recovery.

(e) The order approving the settlement or the order entering the judgment shall provide that the amount distributable to the representative appointed by the Probate Division as an asset of the decedent's estate or for distribution under the Wrongful Death Act shall be paid only upon the presentation of an order entered in the Probate Division authorizing the representative to receive the distributable amount and approving the bond or other security required in the connection therewith.

(f) Upon the entry of the order approving the settlement or entering the judgment, the representative shall file a petition in the Probate Division requesting the entry of an order authorizing the representative to accept the distributable amount and fixing and approving the bond or other security required pursuant to the settlement or judgment. A copy of the order of the judge hearing the case shall be attached to the petition.

(2.) In actions filed pursuant to the Wrongful Death Act brought by a special administrator appointed in the division where the action is pending, the order entering judgment or approving the settlement shall provide that the amount recovered in any such action shall be distributed by the court in which the cause is heard to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person, or as otherwise directed by the Wrongful Death Act, 740 ILCS 180/0.01 et seq., except that if proceeds in excess of $10,000 are distributable to a minor or person under legal disability, the distribution shall be administered and distributed under the supervision of the Probate Division. The order shall also address the fees and the expenses to the special administrator and his or her attorney and the entry of a bond and the presentation of vouchers that evidence that the distribution was properly made consistent with the court's order of distribution.

(3.) In actions filed pursuant to 735 ILCS 5/13-209 brought by a special representative appointed in the division where the action is pending for the deceased for the purpose of prosecuting such survival action, the order entering judgment or approving the settlement shall provide that the amount recovered in any such action shall be distributed by the court in which the cause is heard to the heirs or legatees as the law may provide, except that if proceeds in excess of $10,000 are distributable to a minor or person under legal disability, the distribution shall be administered and distributed under the supervision of the Probate Division. The order shall also address the entry of a bond and the presentation of vouchers that evidence that the distribution was properly made consistent with the court's order of distribution.

(4.) When the gross value of the decedent's entire personal estate, including the proceeds of the cause of action, does not exceed $100,000, a small estate affidavit may be presented and the order approving the settlement or the order entering the judgment shall provide for distribution pursuant to the affidavit. The order shall also address the entry of a bond and the presentation of vouchers that evidence that the distribution was properly made consistent with the court's order of distribution.

[Amended, effective September 29, 2011.]