Ill. R. Cir. Ct. Will Cnty. 5.02
When a wrongful death action has been filed in the Circuit Court with a special administrator having been appointed pursuant to 740 ILCS 180/2.1 (Chapter 70 2.1), the disposition of the case is completely determined by the Trial Judge's order. Since the proceeds of a wrongful death action are not an asset of a decedent's estate subject to the claims of creditors, and since distribution is made on the basis of dependency without regard to testacy or intestacy, there is no reason for Probate Court involvement unless a minor or disabled person is involved.
In those cases, therefore, where all of the persons receiving a distribution are competent adults, the Trial Judge's order should determine the fairness of the settlement, identify the dependents, and determine the fairness of the settlement, identify the dependents, determine the degree of dependency, and determine the reasonable fees and expenses under the retainer contract, pursuant to Article VIII of the Illinois Rules of Professional Conduct Rule 1.5 (fees) and order the distribution. The Trial Judge should enter an order requiring the presentation of vouchers of distribution on a day certain in accordance with the order of distribution.
When the Trial Judge's order provides for probate of a distribution of funds to a minor or disabled person, further proceedings in probate in the county or state in which the minor or disabled person resides are necessary. The Trial Judge shall allow disbursements and fees to the special administrator and the attorney, and the balance shall be administered and distributed under the supervision of the appropriate Probate court. In such cases, the same language used in the minor's settlement cases requiring payment only to a guardian appointed in the appropriate Probate court should be included in the order.
In cases involving actions for wrongful death brought on behalf of decedents by representatives appointed by the Probate Judge and pending before other Judges, the following procedures apply:
The Judge hearing the case, upon the approval of a settlement or upon the entry of judgment, shall determine the expenses, including reasonable attorneys' compensation pursuant to contract and pursuant to Article VIII of the Illinois Rules of Professional Conduct Rule 1.5 (fees), to be deducted from the settlement or judgment, shall adjudicate all liens, and shall determine the net amount distributable to each person entitled thereto pursuant to the provisions of the Wrongful Death Act.
The order approving the settlement or the order entering the judgment shall provide that the amount distributable to the representative appointed by the Probate Judge for distribution under the Wrongful Death Act shall be paid only upon the presentation of an order entered by the Probate Judge authorizing the representative to receive the distributable amount and approving the bond or other security required in connection therewith.
Upon entry of the order approving the settlement or entering the judgment by the Judge hearing the case, the representative shall file a petition in Probate 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. The amount of the bond shall be fixed pursuant to the Probate Act. A copy of the order entered by the Judge hearing the case shall be attached to the petition.
The distributable amount received by a representative for a minor or disabled ward pursuant to the provisions of this section shall be accounted for and administered in Probate as in any other estate.
Upon the settlement or disposition of a wrongful death case, prior to distribution of the proceeds, the Judge disposing of the wrongful death case shall consider appointing a guardian ad litem to represent the interests of any minor or disabled person solely for the purpose of distribution. The necessity for appointment of a guardian ad litem most often arises in circumstances in which the proposed distribution allocates a disproportionately low amount to the minor. The fees of the guardian ad litem shall be paid out of the gross estate rather than the distributive share of the minor.
The objective of the procedures described above is to permit the total disposition by the Trial Judge of any case in which appropriate Probate action is not necessary while, at the same time, insuring that appropriate Probate involvement is not eliminated by reason of an overly broad Trial Court order.
Ill. R. Cir. Ct. Will Cnty. 5.02