One of the worst experiences that you can have in your life is being injured by someone’s neglect or bad decisions. Not only are you having to deal with the physical trauma of the accident, but the mental and emotional cost as well. The reasonable action would be to take whoever injured you to court, but what if that person died in the accident or soon after?
You might think that you are out of luck when it comes to getting compensated for your pain and suffering, but that is not the case. Despite the defendant being dead, you can still file a lawsuit against that person’s estate, though it is a more complicated process than if the defendant were alive. That’s why it’s a good idea to have a Chicago personal injury lawyer on your side, making sure that the process is as smooth and stress-free as possible for you.
First, we will explain the basics of estate and probate as it relates to a personal injury claim.
What is an estate?
An estate, according to Justia.com, “consists of all property owned at death before it is distributed by will, trust, or intestacy laws. An estate may contain both real property (real estate, including houses and investment properties) and personal property (all other property, including bank accounts, securities, jewelry and automobiles).”
If someone causes you injury through their neglect or otherwise, but before you can file a lawsuit against them, they die, then you can file a lawsuit against their estate. However, it is important to act quickly, as there is a statute of limitations on when you can file your lawsuit. Here in Illinois, personal injury cases are allowed two years starting from the time of the incident.
What is probate?
If you file a lawsuit against the deceased defendant’s estate, you will likely have to wait for a probate proceeding. The probate process sometimes (but not always) occurs after a person dies and the court must solidify how assets and the estate are split up based on what was stated in the deceased’s will. It also determines who will handle their debts and taxes. An executor is often chosen by the court to be in charge of the probate.
Why it’s important to work with a Chicago attorney after an accident
In a very odd example, in 2011 a man put himself in the way of a moving train. When the train hit the man, his severed body parts were flung at great force. One body part happened to hit a train passenger that was on the platform. This train passenger sustained injuries, and attempted to file a lawsuit against the deceased defendant. The argument was that the defendant had to have known that in getting hit by the train, he was not caring for his own safety or the safety of others, and that it was “reasonably foreseeable that train would strike, kill, and fling his body down tracks and onto platform where Plaintiff was awaiting next train.” However, the court ruled that the deceased owed no duty of care to the plaintiff.
In another example, a victim of a car accident attempted to sue the deceased defendant. Instead of filing a lawsuit against the deceased’s estate, however, the plaintiff filed the lawsuit against the deceased directly, having not known that the defendant had died at all. The court did not award any compensation to the plaintiff as they did not file the lawsuit against the correct party (the deceased’s estate), and they neglected to appoint an executor within the allotted time. Because the defendant did not follow proper protocol in filing their case, they were not awarded any compensation.
This is a good example of why it is smart to hire a lawyer when involved with a car accident or any sort of personal injury caused by another’s actions. An experienced attorney can make sure that all the proper procedures are followed when you are filing a lawsuit, especially in the event the defendant has died. The process becomes even more complex in that situation.
If you have been in a car accident where you were injured (or your property destroyed), and the person who caused your injuries is dead, then it is absolutely necessary that you seek out an experienced lawyer. The law is complicated enough as it is, but when the defendant is deceased, it becomes even more complex. That’s when Gainsberg Law steps in. We have experienced lawyers who know the law inside and out, and they will do their due diligence to make sure that you are able to secure the compensation you deserve. If this sounds like the case for you, call the professionals at Gainsberg Law at 312-600-9585 or use our contact page.
Neal S. Gainsberg has spent the last 20 years fighting to protect the rights of the injured in Chicago and throughout Illinois. From consumer rights and bankruptcy to catastrophic injuries and wrongful death, Mr. Gainsberg stands up to large corporations, insurance companies, creditors and hospital administrators to ensure that his clients’ futures are safe and secure. Learn More