An Illinois wrongful death case can only be filed when there is someone who has legal authority to file suit on behalf of the estate of the deceased person. That “someone” is normally (but does not have to be) a relative, but does not have to even be an actual living “person” – it can be a bank or a trust company, for example.
Where there is a will, the will designates one or more persons as the executor of the estate. When there is no will, then someone must be designated to assume the same role that the executor has where there is a will. That person is referred to as the Administrator of the Estate, and depending on how they receive the appointment, they are called the “Independent Administrator “ or the “Special Administrator”. For the purposes of the wrongful death case, there is no real difference between an Independent Administrator and a Special Administrator; it is just a matter of a difference in how they are appointed.
In theory, more than one person can have serve as the executor or administrator. In practice, it doesn’t work very well. In our practice we try to encourage the appointment of a single executor administrator because it promotes efficient decision-making.
The executor or administrator has the legal authority to make decisions for the estate, including: • Whether to file a lawsuit or not; • Who to file the lawsuit against; and • Whether to settle the case or not.
Going hand-in-hand with the powers that they receive over the wrongful death suit, the executor or administrator also has some responsibilities:• Responding to pre-trial discovery requests from the defense lawyers;• Representing the interests of all of the beneficiaries of the suit fairly;• Participating in settlement negotiations;• Attending the trial and other necessary court hearings;• Keeping beneficiaries advised of the progress of the case and settlement negotiations;• Making decisions regarding prosecution and settlement of the case which are in the best interests of all of the beneficiaries of the estate;• Presenting a proposed settlement agreement and distribution order to the judge for approval;• Distributing the proceeds of the settlement in accordance with the court order;• Filing proof with the court that the money was distributed to the beneficiaries of the suit in accordance with the court order.
You will notice a few things that the executor or administrator cannot do:• Manipulate the lawsuit to benefit themselves or other beneficiaries of the lawsuit;• Decide who receives what compensation from the lawsuit; and • Subject to a few exceptions, arrange for themselves to be paid for serving as the executor or administrator.
The bottom line on who files that lawsuit is this: there needs to be one person in charge of the lawsuit who has the power to make decisions regarding the lawsuit, and that person cannot manipulate the process to his/her benefit or to the detriment of any of the beneficiaries of the suit.