12.15 Personal Injury or Wrongful Death Actions


(a) As used in this Rule, unless the context requires otherwise:

(i) "the court" refers to the Probate Division;

(ii) "another Division" or "the other Division" refers to a Division of the Circuit Court of Cook County other than the Probate Division;

(iii) "another court" or "the other court" refers to a court other than a Division of the Circuit Court of Cook County; and

(iv) an award by an arbitrator appointed under Part 18 of these Rules shall be considered to be an order of another Division, and an award of any other arbitrator shall be considered to be an order of another court.

(b) If no proceeding is pending before another Division or another court for recovery on a cause of action for personal injury or for wrongful death, the role of the Probate Division shall be as provided in this subparagraph.

(i) To settle a cause of action for personal injury to a minor or a disabled person, the guardian of the estate of the ward shall file in the court a petition for approval of the settlement of the cause of action. Upon approving the settlement the judge shall determine the expenses, including the attorney's compensation, to be deducted from the proceeds.

(ii) To settle a cause for action for personal injury to a decedent whose estate is in the course of administration, the representative of the decedent's estate shall file in the court a petition for approval of the settlement of the cause of action. Upon approving the settlement the judge shall determine the expenses, including the attorney's compensation, to be deducted from the proceeds. If the cause of action is the sole asset of the estate, the compensation shall include all legal services necessary to effect the settlement of the estate, except as otherwise ordered by the court.

(iii) To settle a cause of action for the wrongful death of a person whose estate is in the course of administration, the representative of the decedent's estate shall file in the court a petition for approval of the settlement of the cause of action. Upon approving the settlement the judge shall determine the expenses, including the attorney's compensation, to be deducted from the proceeds, and shall apportion the balance as provided by law. When the court authorizes the representative of a decedent's estate to settle a wrongful death action and when there is no other estate requiring administration, the court shall order that upon complying with the order the representative shall be discharged.

(iv) A report of the attorney for the petitioner stating that, in the attorney's opinion, based upon the facts and the law, the proposed settlement is just and proper, shall be attached to the petition.

(v) The attorney's compensation under a contingent fee contract shall be prescribed by Rule 6.4 (b) or Rule 6.5(b), as the case may be, and, in a medical malpractice case, shall comply with Section 2-1114 of the Code of Civil Procedure. If the cause of action is the sole asset of the decedent's estate, the compensation shall include all legal services necessary to effect the settlement of the estate, except as otherwise ordered by the court.

(vi) The judge may appoint a guardian ad litem to investigate the merits of the proposed settlement.

(c) If an action for personal injury to a minor or a disabled person or to a decedent or for wrongful death is pending before another Division, the role of the Probate Division shall be as provided in this subparagraph.

(i) If the action is for personal injury and is disposed of in another Division by an order entering judgment for the plaintiff or approving a settlement, the guardian of the estate of the ward or the representative of the decedent's estate, as the case may be, shall file in the court a petition for authority to receive the proceeds of the action in accordance with the provision of Rule 6.4 or Rule 6.5, as the case may be.

(ii) If the action is for wrongful death and was brought by a special administrator appointed by another Division, no action in the Probate Division is required with respect to the disposition of the wrongful death action itself. If the action is for wrongful death and was brought by a representative appointed by the Probate Division, the representative shall file in the court (aa) a petition for authority to receive the proceeds of the action in accordance with the provisions of Rule 6.5 and (bb) vouchers for the expenses paid and the distributions made pursuant to the order of the other Division. If there is no other estate requiring administration, the court shall then declare the estate closed. If any person receiving distribution is a minor or disabled person, the amount distributable to the ward shall be disposed of as follows:

A. If the estate of the ward does not exceed $10,000 in value, the other Division may dispose of the ward's share of the proceeds under the statute governing a ward's small estate (Section 25-2 of the Probate Act)[755 ILCS 5/25-2].

B. If the estate of the ward exceeds $10,000 in value, the guardian of the ward's estate shall file a petition in the court for authority to receive the proceeds of the action in accordance with the provisions of Rule 6.4.

(d) If any action for personal injury to a minor or a disabled person or to a decedent or for wrongful death is pending before another court, the role of the Probate Division shall be as provided in this subparagraph.

(i) The guardian of the estate of the ward or the representative of the decedent's estate, as the case may be, shall file a petition in the court for an order authorizing the guardian or representative to take whatever action is required by the other court. If that action involves approval of a settlement or the payment of fees or expenses that have not been passed on by the other court, the petitioner shall provide evidence of the propriety of the proposed action.

(ii) If the action is for personal injury, the guardian of the estate of the ward or the representative of the decedent's estate, as the case may be, shall file a petition in the court for an order authorizing the representative to receive the proceeds.

(iii) If the action is for wrongful death and was brought by a representative appointed by the Probate Division, the representative shall file in the court vouchers for the expenses paid and the distributions made pursuant to the order of the other court. If there is no other estate requiring administration, the court shall then declare the estate closed. If any person receiving distribution is a minor or a disabled person, the amount distributable to the ward shall be disposed of as follows:

A. If the estate of the ward does not exceed $10,000 in value, the other court may dispose of the ward's share of the proceeds under the statute governing a ward's small estate (Section 25-2 of the Probate Act)[755 ILCS 5/25-2].

B. If the estate of the ward exceeds $10,000 in value, the guardian of the estate of the ward shall file a petition in the court for authority to receive the proceeds of the action in accordance with the provision of Rule 6.5.

(e) Whenever action by a guardian of the estate of a minor or a disabled person or by a representative of a decedent's estate is required, if no guardian of the estate of the ward or representative of the decedent's estate has been appointed, a petition shall be filed in the court for appointment of a guardian of the estate of the ward in accordance with Article XI or XIa of the Probate Act or for appointment of a representative of the decedent's estate in accordance with Article VI or IX of the Probate Act.

(f) When the settlement of a cause of action requires future payments to a person who is or may become a disabled person, the order approving the settlement shall include provisions that will make it possible for the court to consider the person's legal competence and to monitor changes in the person's competence.

(g) When the court authorizes a guardian of the estate of a ward to receive the proceeds of a cause of action or to settle a cause of action, the court shall either (aa) direct that the balance be deposited for the benefit of the ward as provided by Section 24-21[755 ILCS 5/24-21], in which case, upon complying with the order, the guardian shall be discharged, or (bb) direct that the balance be held and administered by the guardian in accordance with Article XI or XIa of the Probate Act.

[Amended, effective September 29, 2011.]