The general rule is that actions that survive a decedent’s death must be pursued by an appointed representative for the benefit the decedent’s creditors and heirs.
See, for instance, Castaneda v. Ingram, 2018 IL App (1st) 170065, ¶ 13 (action must be brought by the executor or representative); Will v. Northwestern University, 378 Ill.App.3d 280, 289 (1st Dist. 2007) (survival actions do not create rights in an estate beneficiary to bring suit).
This rule is rooted in the doctrine of “standing,” which requires legal issues to be raised before a court by the real party in interest to a controversy. See Clarke v. Community Unit School District 303, 2012 IL App (2d) 110705, ¶ 38 (standing ensures issues are raised by the real parties in interest).
But practicing attorneys should be aware that an equitable exception to the general rule exists when a plaintiff is the heir of an intestate decedent and the decedent has no unsatisfied creditors. Weiland v. Weiland, 297 Ill.App. 239 (1st Dist. 1938); Lewis v. Lyons, 13 Ill. 117 (1851) (when the estate has no debt a sole heir is cestui que trust and entitled to the entire equitable interest in the estate; it would be a “mockery of justice” for a chancery court to require otherwise unnecessary costs simply to deliver assets to the rightful heir). The exception to the general rule recognizes that when the rightful heir of a debt-free estate pursues what otherwise would be the estate’s survival claim, that heir is, in fact, the only person interested in a recovery and so there is no need for a probate proceeding simply to ensure delivery of a recovery to the heir. See Moore v. Brandenberg, 248 Ill. 232, 236 (1910) (when there are no creditors, it would be an unnecessary waste of time, money and court resources to require opening an estate to deliver a recovery to the heir already before the court).
This narrow exception to the general rule, while not often applied, has been recognized in Illinois for years. For example, in Jordan v. McGrew, 400 Ill. 275, 289 (1948), the Illinois Supreme Court relied in part on the Moore case to uphold the jurisdiction of a circuit court presiding over a partition action to order the probate of a destroyed will, to appoint an executor, and to order that a previously appointed administrator deliver up all property of the decedent that was in his hands.
The exception was also applied in Kriegel v. Miedema, 20 Ill.App.2d 235, 239 (1st Dist. 1959), where the appellate court determined that a chancery court had jurisdiction to distribute an intestate estate to rightful heirs when all debts of the deceased were paid and the only questions involved the rightful heirs, their respective interests, and their respective distributions.
It was later acknowledged in McGill v. Lazzaro, 92 Ill.App.3d 393, 396 (1st Dist. 1980), although it was not applied in that case because the record failed to establish to the appellate court’s satisfaction that circumstances that qualified the case as an exception to the general rule. The exception was recently recognized in the unpublished case of Brunton v. Kruger, 2012 IL App (4th) 120265-U, ¶ 17, where the appellate court cites Moore and suggests that if an estate is debt-free there is no need to appoint an administrator. While the exception will be narrowly applied, all these cases support the proposition that so long as a litigant can make a record before a court of chancery that her deceased relative’s creditors have been paid, the litigant may for equitable and practical reasons pursue claims which survive her intestate relative’s death.
The exception has also been applied to benefit a defendant. In O’Connell v. United States, 37 F.Supp. 832, 833-34 (E.D. Ill. 1941), a consolidated action to recover pension benefits paid on behalf of deceased members of veteran’s facilities, the district court relied in part on Moore and in part on Weiland to bar as untimely an action filed by an appointed administrator. The district court concluded that because Illinois law allowed the heirs to file suit to seek recovery of the decedent’s property (pension payments) as of the defendant death, and because no action on the claim had been filed by the heirs or a representative prior to the expiration of the applicable limitation period, the action was untimely filed and subject to dismissal.
If you have filed a claim that a defendant or a judge contends must be pursued by an appointed administrator, investigate whether the plaintiff is the heir of a debt-free intestate decedent. If so and your client is the plaintiff, the above-cited cases support an argument that the plaintiff should be allowed to continue the action to recover for the injury inflicted upon her deceased relative without opening an estate. If your client is the defendant and the claim was filed long after the decedent’s death, investigate a limitation defense. If the exception applies, support your argument for dismissal by noting that under the cited cases the heir could have filed suit on the claim immediately on the date of death.