When Is Probate Approval Required in a Personal Injury Case?

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Probate approval is a crucial legal process that may arise after the unfortunate passing of an individual due to a personal injury accident. It refers to the court’s recognition and confirmation of the validity of a deceased person’s will, or if there is no will, the distribution of their estate according to state laws.

In simpler terms, probate approval determines who has the legal authority to handle the deceased person’s assets and debts, and how those assets will be distributed among their heirs.

It’s important to understand how this process works and when it’s necessary to bring in legal support to help you with a wrongful death case while you’re in the process of grieving. Below you’ll find some helpful information about probate courts, the probate approval process, and how an experienced wrongful death attorney from The Kryder Law Group, LLC Accident and Injury Lawyers can help you.

What Is Probate Court and Probate Approval?

In Illinois and according to the Probate Act of 1975 (755 ILCS 5/), probate courts are responsible for overseeing the distribution of a deceased person’s estate. This includes validating the will, appointing an executor or administrator to carry out the deceased’s wishes, and ensuring that any outstanding debts and taxes are paid off.

The probate approval process involves submitting necessary documents, such as death certificates and wills, to the court and waiting for their approval. This process can be lengthy and complicated, especially if there are disputes among beneficiaries or creditors.

Why Is Probate Approval Necessary?

In cases where an individual passes away due to a personal injury accident, their estate may need to go through probate approval before it can be distributed among their heirs. This is necessary because the court needs to verify the validity of the will, if present, and ensure that the assets are distributed according to the deceased person’s wishes or state laws.

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.

Another reason probate approval is necessary is to protect the interests of creditors. During this process, any outstanding debts or taxes need to be paid off before the remaining assets can be distributed among beneficiaries.

Do All Personal Injury Cases Require Probate Approval?

Not all personal injury wrongful death cases will require probate approval. It depends on the circumstances surrounding the case and whether or not the deceased had a valid will at the time of their passing.

If a person dies without a will, their estate will go through the probate process and be distributed according to state laws. In some cases, this could mean that the deceased’s assets are divided among family members or other beneficiaries who may not have been included in their will or were not intended to receive anything.

However, if a person dies with a valid will, their assets can be distributed according to their wishes without the need for probate approval. This can save time and avoid potential disputes among heirs.

What Happens During the Probate Approval Process in a Wrongful Death Case?

What Happens During the Probate Approval Process in a Personal Injury Case?

The probate approval process in a wrongful death personal injury case typically involves the following steps:

  1. Filing a petition: One of the first steps is to file a petition with the probate court that has jurisdiction over the deceased person’s estate. This petition will include information about the decedent, their assets and debts, and any potential heirs.
  2. Notifying interested parties: The court will then require that all interested parties, such as family members and creditors, be notified of the probate proceedings.
  3. Inventory and appraisal: An inventory of the deceased’s assets and debts will need to be submitted to the court, along with an appraisal of their value.
  4. Paying off debts: Before any assets can be distributed among beneficiaries, outstanding debts and taxes must be paid off.
  5. Distributing assets: After all debts have been paid, the remaining assets will be distributed among beneficiaries according to the deceased’s will or state laws.
  6. Closing the estate: Once all steps have been completed and approved by the court, the estate can be closed.

Heir Identification

After a plaintiff passes away, an important early 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 simple and easy. However, when someone is only survived by distant heirs, such as cousins or nieces and nephews, appropriately identifying all relevant heirs can be far more time consuming and expensive.

Naming the Special Administrator

Another important step in this process is when the probate court appoints a Special Administrator. The court will name one of the heirs as the special administrator. In most cases, the special administrator will not be required to do much more than the other heirs and simply be named on all the lawsuit paperwork and only be required to make a few limited court appearances.

It is important to note that the special administrator does not receive a larger portion of the estate than the other designated heirs.


After identifying all the 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 personal injury 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.

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 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.

When Is It Necessary to Seek Legal Support for Probate Approval?

Navigating the probate laws in Illinois after a close family member has been killed can be overwhelming. Seeking guidance from an experienced wrongful death lawyer to handle questions about probate law may be necessary in situations where:

  • There is a dispute over the validity of the will
  • The deceased had significant assets and investments
  • There are outstanding debts or taxes to be paid
  • There are multiple heirs involved in the distribution of the estate

A probate lawyer can help with preparing and submitting necessary documents, representing your interests in court if necessary, and ensuring that the probate court hearing goes as smoothly as possible.

Probate approval is an important legal process that ensures the fair distribution of a deceased person’s assets and debts. Understanding when it’s necessary to seek legal support from a probate attorney for probate approval can help alleviate some of the stress and confusion during an already difficult time.

Contact The Kryder Law Group, LLC Accident and Injury Lawyers With Your Probate Approval Questions

If you have recently lost a loved one due to a personal injury accident or wrongful death incident, it’s crucial to consult with an experienced attorney who can guide you through the probate process and represent your interests when distributing the deceased’s estate.

Remember, legal support is always available to help you navigate this potentially complex process.

When Is Probate Approval Required in a Personal Injury Case?
It’s important to understand how the probate approval process works and when it’s necessary to bring in legal support.

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