Probate courts are a necessary part of litigation for a personal injury claim on behalf of a child. When a plaintiff is a minor, the probate court makes sure that the financial award is appropriate and fair, and that the correct people get their share of the estate’s funds.
Below is a brief overview of what to expect when a plaintiff is a minor and his or her personal injury claim requires probate approval.
In this Article
What is Probate Court?
Probate Courts in Illinois and throughout the United States are courts that have jurisdiction and authority to deal with issues regarding estates in personal injury cases.
Estates of Deceased People
The most common probate issue occurs when someone passes away leaving behind an estate consisting of money, property, and real estate. The relevant probate court will then identify the rightful heirs to the deceased’s estate and approve its distribution according to the local laws and rules.
Estates of Minors and Disabled People
Probate courts also manage the estates of minors and incapacitated or disabled people in personal injury claims. In these contexts, the court serves as a de facto guardian to the minor or disabled person’s property and will only approve use of the property that is in the minor or disabled person’s best interests.
With the authority over estates of the deceased, minors, and disabled people, it then makes sense that certain personal injury claims will require intervention from the probate courts.
Chicago Probate Court and Minors
Unlike in circumstances where the injured party passes away, initiating a personal injury claim with an injured minor is quite easy.
For a case involving the estate of a deceased person, a Special Administrator for the estate of a deceased party is appointed to identify heirs and present motions before a probate judge.
Naming an Adult Parent or Guardian in a Personal Injury Claim
To file a personal injury claim on behalf of a child in Chicago, the attorney simply needs to file a lawsuit naming an adult parent or guardian of the child and represent that the child is a minor.
In most cases, this means that instead of captioning a case as Roger Smith v. Larry Jones, the case would be captioned as Mary Smith for Roger Smith, a Minor v. Larry Jones. Quite simple.
Process for a Minor in Personal Injury Claims
Once a lawsuit on behalf of a child is filed, the child injury claim will then proceed as usual. There will be pleadings, motion practice, and depositions.
In most child injury cases, if the minor-plaintiff is over 13 years old, the courts will allow him or her to sit for a deposition. If the child is younger than 13 years old, it is usually up to the discretion of the handling attorneys on whether it is appropriate for the child to be deposed.
Disagreements between the attorneys on the appropriateness of a given deposition are easily resolved with a judge’s ruling. In most child injury cases, questionable depositions are allowed to proceed with the understanding that it will be short and extremely friendly.
Settling a Child Injury Claim in Cook County
Once a minor’s case settles, however, the courts will often require probate approval. In Cook County, the motion judge assigned to the case will require a motion to approve the minor’s settlement. The motion includes:
information regarding the settlement,
the minor’s injuries,
medical bills, and
what is expected to go to the minor’s estate.
In some circumstances, if the net settlement amount going to the minor is below $10,000.00, the motion judge will include language waiving the necessity of probate approval and the case will be dismissed in its entirety.
Steps for Probate Approval for a Child’s Personal Injury Settlement
Should probate approval not be waived, the Probate Court will require approval. First, the Probate Court will determine if the settlement is fair to the minor.
The attorneys will submit information to the probate judge about the value of the settlement, the nature of the injuries claimed, and why the court should find the settlement to be appropriate.
The probate judge will review medical records and any relevant documents in determining whether the settlement is fair. In the vast majority of cases, this is a routine procedure and the probate judge will approve the settlement.
Second, the court will approve a proposed distribution of settlement funds. The court will approve the amounts going to the minor’s estate, the attorney’s fees and costs, and will approve the distributions to resolve any liens on the case.
In most cases, this is also a fairly routine procedure and the Chicago probate judge will approve the distribution and the minor’s estate.
Finally, the court will require proof that the funds were distributed in accordance with the court order and only then will the probate estate will be closed.
Settlement Trust Accounts in Personal Injury Cases
It is important to note that the minor’s portion of the settlement funds does not go to the minor, the child’s parents or guardian. The minor’s funds go into a trust account where they are held until the minor becomes an adult at the age of 18.
Most major banks have the ability to establish such trust accounts – with the courts requiring the account to have a restriction against withdrawals on the account unless there is a court order, or the minor has turned 18 years old.
If your child has been involved in an accident and experienced pain and suffering, or if you have any probate questions, call our law firm and speak to an experienced and caring Chicago personal injury attorney immediately for your free consultation.
At the Kryder Law Group, we pride ourselves on being able to explain complex legal matters in a way that’s easy to understand. Tell us about your child’s injury claim, call now for your free consultation!