Ill. R. Cir. Ct. Lake Cnty. 5-3.23

As amended through September 23, 2024

Rule 5-3.23 - Procedures for Settlement of Personal Injury and Wrongful Death Claims in Probate Court

A. Each Petition for leave to settle a cause of action for personal injuries sustained by a minor or disabled person, or a cause of action for the wrongful death of a person whose estate is in the course of administration, when no separate lawsuit is pending, shall be executed by the representative. The attorney for the representative, if any, shall certify in writing as a part of the Petition that, in his opinion, based upon the law and the facts and law applicable thereto, the proposed settlement is just and proper. Courtesy copies of the Petition and attachments shall be provided to the Court at least five court days in advance of the hearing.

B. In the case of a minor, the minor shall appear in open court at the hearing on the Petition.

C. The Court may, on its own Motion, appoint a Guardian ad Litem to investigate the merits of the proposed settlement.

D. Any Order in the Probate Court approving a settlement of a wrongful death action shall also establish the distributive rights of the persons entitled to the proceeds.

E. A Petition to settle an action on behalf of a minor or disabled person shall have attached thereto a report of the attending physician stating the nature and extent of the injury.

F. If the Petition proposes a "structured settlement," future payments must be guaranteed by an entity rated "A" or higher by Best's Insurance Guide or other rating service found acceptable to the Court.

G. The Order entered approving settlement shall provide for the distribution of the settlement funds and the filing of vouchers, which evidence receipt of any portion of the fund, with the Court within a time prescribed by the Court.

H. When any settlement funds are to be received by a parent or legal representative on behalf of a minor child, such funds shall be required to be deposited in an account in a financial institution approved by the Court for the benefit of the minor, and shall not be withdrawn without approval by Court Order. The financial institution shall be insured by the Federal Deposit Insurance Corporation (F.D.I.C.) or by such other entity as may be approved by the Court.

The Court shall continue the case to a specific date for the purpose of having a voucher from the financial institution filed. The voucher from the depository shall acknowledge receipt of the funds and a copy of the Order of the Court approving settlement and shall include the express language that "No withdrawals shall be made from this account, unless authorized by Order of Court, at any time prior to [date upon which the minor will reach the age of majority]."

I. A Petition for withdrawal from said account prior to the minor reaching the age of majority shall be in writing and shall state the amount in the account at the time of presenting the Petition, the annual income available to the minor, the amount and purpose for the withdrawal, and the amount of the last authorization for withdrawal from the account for the same purpose.

J. Unless a statute provides for a lesser fee amount, any allowance for fees out of a settlement of a cause of action for personal injuries to a minor or disabled person or out of a distribution to a ward as a result of the settlement of a wrongful death cause of action shall not exceed twenty-five percent of the settlement. However, if it shall appear to the Court upon the filing of a Verified Petition by the attorney prosecuting the cause of action that the twenty-five percent fee would not fairly compensate the attorney for the work performed, the Court shall fix the fee at whatever amount it determines to be fair and reasonable.

Ill. R. Cir. Ct. Lake Cnty. 5-3.23

Amended effective 10/24/2016.