Probate Court FAQs: Does Your Case Require Probate Approval?

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Probate Court FAQs: Does Your Case Require Probate Approval?

When a loved one passes away, the last thing you want to think about is dealing with the logistics of that person’s death. But, unfortunately, there are items that must be dealt with properly particularly if they left behind an estate that now needs to be distributed amongst that loved one’s family. It’s important to understand how this process works and when it’s necessary to bring in legal support to help you navigate such a thing especially while you’re in the process of grieving. Below you’ll find some helpful information about probate courts and the probate approval process and how an experienced attorney can help you.

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What is probate court and probate approval?

Probate Courts are courts that have jurisdiction and authority to deal with issues regarding estates. 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. Probate courts also manage the estates of minors and incapacitated or disabled persons. In these situations, the court serves as a default guardian to the minor or disabled person’s property and will only approve the distribution 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 persons, it then makes sense that certain personal injury cases will require intervention from the probate courts. Below is a brief overview of what to expect when a plaintiff passes away and their personal injury case requires probate approval.

When is probate approval required in a personal injury case?

If a plaintiff dies as a result of an accident or injury, the case will require intervention by the relevant probate court. In personal injury cases, it is far more common that a person will sustain a non-fatal injury in a car crash, slip and fall, or nursing home accident and then at a later date, dies due to unrelated causes. In these instances, the cases will require probate approval, as well.

What happens during the probate approval process in a personal injury case?

The probate approval process for a personal injury case includes the following steps:

  1. Heir Identification – the court approves a list of heirs
  2. Naming the Special Administrator – the court appoints one heir as the special administrator
  3. Litigation – the injury case proceeds
  4. Fund Distribution – the court determines if the settlement is fair to the decedent, then approves and requires proof of distribution of funds

Heir Identification

After a plaintiff passes away, the first step your attorney must take is to identify all of the plaintiff’s (the deceased person’s) heirs. If the plaintiff is survived by a spouse or children, then this process can be quite simple and easy. However, when someone is only survived by more distant heirs, such as cousins or nieces and nephews, appropriately identifying all relevant heirs can be far more time consuming and expensive. Once all heirs have been identified, the probate court will approve this list of heirs so that going forward the parties know exactly who has an interest in the personal injury case and the expected settlement or recovery.

Naming the Special Administrator

While the probate court identifies all the heirs, the court will also name one of the heirs as a Special Administrator. The special administrator is the person who will “step into the shoes” of the decedent to pursue the case on behalf of the decedent-plaintiff. In reality, the special administrator is simply named on all lawsuit paperwork and will only be required to make a few limited court appearances. In most cases, the special administrator is not required to do much more than the other heirs. It is important to note that the special administrator does not receive a larger portion of the estate than the other heirs. This means that although the special administrator may be more involved in the day-to-day case activities, they do not receive a larger portion of the settlement or recovery than an equal but disinterested heir.


After identifying all heirs and appointing a special administrator, the personal injury case can then continue through litigation much like any other case. There will be hearings, motions, and depositions, and in most cases, the parties will resolve the issues with a settlement. In cases where the plaintiff is deceased, the attorneys will need to obtain the court’s approval to formally settle the case and to distribute the funds.

Fund Distribution

First, the probate court will determine if the settlement is fair to the decedent. 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 each heir, the attorney’s fees and costs, and approve the distributions to resolve any liens on the case. In most cases, this is also a fairly routine procedure and the probate judge will approve the distribution and the heirs will receive their portion of the settlement proceeds.

Finally, the court will require proof that the funds were distributed in accordance with the court order and only then will the probate estate be closed.

Should I get a lawyer to help me in probate court?

Due to the complexity of Cook County personal injury cases that involve a probate court, it is important to have a knowledgeable attorney working for you. Probate courts are a necessary part of litigation when the plaintiff has passed away, is a minor or is disabled. When a plaintiff dies, the probate court makes sure that the appropriate heirs are identified, that any settlement is appropriate and fair, and that the correct people and entities receive their share of the estate’s funds. And although this process can be fairly straightforward in most situations, that may not always be the case. In either way, it is important that you have an experienced attorney by your side making sure that the probate approval process runs smoothly and appropriately until the estate is settled and closed.

If you or your loved one has been involved in an accident, or if you have any probate questions, call the Kryder Law Group, LLC. at 312-598-0870 immediately for your free consultation.

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