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Executor unwilling to file wrongful death suit

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myrights?

New member
What is the name of your state? Illinois


Mother was resident of and killed in Illinois. Executor named in will is eldest sibling of 4. Car accident that killed mother and two others. Police report places all negligence on other vehicle/party. The 2 others, killed in accident, are suing for wrongful death. Our oldest sibling is unwilling to do that (isn't even willing to discuss it with the rest of us) and is willing to let the hospital "take the loss" on tens of thousands of dollars. (Mom was in ICU) for several days before passing. Can the rest of the siblings be held accountable for any hospital bills if the Executor chooses to not go after the other party for negligence?
 


PayrollHRGuy

Senior Member
If your mother's estate is of any value it won't be the hospital taking the loss it will be the estate before it is paid out to the heirs.

But no, other than a diminished inheritance your mother's children will not have to pay for the medical care.
 

Dandy Don

Senior Member
The "two others" that were killed in the accident--are they your 2 siblings (and are they also her children) or are they 2 people who are not related to your mother? If you want to pursue a wrongful death claim, you need to ask the attorney who is pursuing the wrongful death lawsuit (on behalf of the two persons killed) will add your mother's estate as a party to that lawsuit or whether you would need to file a separate suit. You can file a claim to get the proceeds of the wrongful death even though your brother doesn't want to do that. If you win the lawsuit, the proceeds are going to be added to the estate to be divided among the legal heirs.
 

myrights?

New member
The two other people were my step-father and an unrelated friend. Both of those estates have filed wrongful death claims. My mother and step-father's will's each left their half of the estate (small) to their respective 4 children. There were stipulations in the wills, that if they died within three months of each other, the estate would be divided as to what each brought to the marriage. Any joint property at the time of death was divided equally. Each will named their respective eldest child as Executor.
 

justalayman

Senior Member

740 ILCS 180/2) (from Ch. 70, par. 2)
Sec. 2. (a) Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person. In every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.
(b) The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of an agreed settlement, by the circuit court, to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.
personal rep is the only entity authorized to file a wrongful death suit.


Proceeds do not go to the estate but are assigned to the parties as the law provides: spouse first in line then children.

I have not delved any further into this but a couple points:

It is often possible to object to the assignment of a personal rep for administration of the estate. If the sister has not already been appointed, I would suggest entering an objection to her appointment. I would at a minimum seek a co-executor status.


It is possible to seek the removal of an already appointed executor if they are violating their duties and obligations. I don’t know if this would be adequate to have her removed.

You might check into the possibility of being assigned the representative only for this action. I didn’t see it is allowed but this surely can’t be the first time this has happened. I would expect the law has made provisions for such an issue. Given the proceeds are not issues of the estate as much as they are issues of of the heirs of the estate, I would not see why a separate action could not be possible.

And last:

Unless the party at fault has a lot of money or large insurance policies payable to the estate or able to be diverted to paying a judgment, the three competing estates may find there is nothing to be won in court or the amount so minimal, especially after it is divvied up among the various parties, it it not worth the cost of proceeding with a wrongful death suit.
 

myrights?

New member



personal rep is the only entity authorized to file a wrongful death suit.


Proceeds do not go to the estate but are assigned to the parties as the law provides: spouse first in line then children.

I have not delved any further into this but a couple points:

It is often possible to object to the assignment of a personal rep for administration of the estate. If the sister has not already been appointed, I would suggest entering an objection to her appointment. I would at a minimum seek a co-executor status.


It is possible to seek the removal of an already appointed executor if they are violating their duties and obligations. I don’t know if this would be adequate to have her removed.

You might check into the possibility of being assigned the representative only for this action. I didn’t see it is allowed but this surely can’t be the first time this has happened. I would expect the law has made provisions for such an issue. Given the proceeds are not issues of the estate as much as they are issues of of the heirs of the estate, I would not see why a separate action could not be possible.

And last:

Unless the party at fault has a lot of money or large insurance policies payable to the estate or able to be diverted to paying a judgment, the three competing estates may find there is nothing to be won in court or the amount so minimal, especially after it is divvied up among the various parties, it it not worth the cost of proceeding with a wrongful death suit.


The party at fault was using company equipment. Large excavating company in Illinois.
 

LdiJ

Senior Member
The party at fault was using company equipment. Large excavating company in Illinois.
Well, they are quite likely to have a large amount of business liability insurance due to the nature of their business. So you don't have to worry about them not having assets to pay.

So, I think that we are back to the advice that you need to challenge your sister's appointment as executor, since she will not honor her fiduciary duty to the estate.
 

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