# Wrongful Death Lawyer | Illinois & Indiana | Jeff at Law > Wrongful death claims in Illinois and Indiana. Who brings the claim, what the family can recover, opening the estate, and the deadlines that run from the date of death. Call (217) 833-8319. Source: https://jeffatlaw.com/wrongful-death/ --- ## Wrongful death lawyer for Illinois and Indiana. Where a crash or a fall proves fatal, the claim is brought by the estate rather than the family, the clock generally runs from the date of death, and the procedural work has to happen while the family is dealing with a funeral. That work belongs to the attorney. Jeffrey Kooi has handled these files in both states since 2000. - **Date of death** — when the limitations period generally begins - **Probate first** — an estate must be opened before the claim can be filed - **180 days** — Indiana notice period if a public entity is responsible - **$0** — upfront — fees only if you recover ### On this page - [How the claim changes](#overview) - [Who brings it and who recovers](#who) - [Illinois and Indiana rules](#law) - [Where these cases come from](#causes) - [What the family needs to do](#after) - [Wrongful death questions](#faq) - [Where cases are taken](#areas) ### A fatal case is brought by an estate, not by the family. Where a collision or a fall proves fatal, the claim changes shape rather than simply becoming larger. It is brought by the personal representative of the deceased person’s estate rather than by the surviving family directly. That means an estate has to be opened in probate before anything substantive can happen — before suit can be filed, before a settlement can be accepted, and in practice before insurers will engage seriously. The limitations period also moves. In most injury cases the clock runs from the date of the incident. In a wrongful death case it generally runs from the date of death, which can be weeks or months later where someone survives a crash for a time before dying of the injuries. That distinction matters, and so does the fact that it does not extend the separate deadlines attached to a government defendant. What the claim recovers is also set by statute rather than by general injury principles, and the two states divide it differently. In broad terms there are two related claims: the wrongful death claim, which compensates the surviving family for what they lost when the person died, and a survival claim, which belongs to the estate and covers what the person themselves endured between the injury and death. They are valued on different bases and they are not interchangeable. **The practical burden belongs to the attorney.** These files are handled with the understanding that the family is dealing with a funeral, a probate estate, and insurance adjusters calling at the worst possible moment. Opening the estate, obtaining letters of office, identifying every available policy, sending preservation demands before the evidence is gone, and dealing with the carriers is the attorney’s work — not something a grieving family should be project-managing. ### Two different questions with two different answers. Families are often surprised that these are separate issues. The person who *brings* the case is the personal representative of the estate — an administrator or executor appointed by the probate court, frequently a surviving spouse or adult child, but not necessarily. The people who *recover* are the statutory beneficiaries, and that list is set by each state’s wrongful death act rather than by the will. #### Opening the estate This is the first procedural step and the one that most often delays a claim unnecessarily. A petition is filed in the county probate court, a personal representative is appointed, and letters of office issue. Until that is done, there is no one with legal authority to pursue the claim or sign a release. Where there is no will, or where the family is not in agreement about who should serve, this takes longer — which is a reason to start it early rather than after the insurers have been negotiated with. #### The wrongful death claim Brought for the benefit of the surviving spouse, children and next of kin, depending on the state’s statute. Recoverable losses generally include the financial support the person provided — wages, benefits, services to the household — and the loss of the relationship itself: society, companionship, guidance and, where applicable, the grief and sorrow the statute recognizes. #### The survival claim Belongs to the estate rather than to the beneficiaries, and covers what the deceased person experienced before death: conscious pain and suffering, the medical expenses incurred, and lost earnings between injury and death. Where someone survived a crash for days or weeks in intensive care, this claim can be substantial and is valued entirely separately. #### Distribution Wrongful death proceeds are distributed among the statutory beneficiaries, and in some circumstances a court approves the allocation — particularly where minor children are involved or the family disagrees. Survival claim proceeds pass through the estate, which means they can be exposed to the estate’s creditors in a way wrongful death proceeds generally are not. How a settlement is allocated between the two claims is therefore a substantive decision rather than paperwork. ### Illinois and Indiana rules in a fatal case. #### Illinois Wrongful Death Act Illinois provides a statutory claim for the benefit of the surviving spouse and next of kin, covering the loss of the deceased person’s support and of the relationship itself. It is brought by the personal representative of the estate, which is why probate has to be opened first. *740 ILCS 180/1 et seq.* #### Illinois Survival Act Separately, the estate may pursue the claim the deceased person had for what they suffered before death — conscious pain and suffering, medical expenses and lost earnings. The two claims are pleaded together and valued separately. *755 ILCS 5/27-6* #### Indiana wrongful death statutes Indiana provides for wrongful death actions brought by the personal representative of the estate, with separate provisions governing the death of an adult, the death of an adult with no spouse or dependents, and the death of a child. Which provision applies changes what can be recovered, so it has to be identified at the outset. *Ind. Code § 34-23-1 et seq.* #### The clock runs from the date of death In a wrongful death case the limitations period generally runs from the date of death rather than from the date of the crash or fall. Where a person survives for a period before dying of their injuries, that distinction matters — but it does not extend the shorter deadlines that attach to government defendants. *Illinois and Indiana wrongful death acts* #### Government defendants shorten everything Where a public entity is responsible — a city or county vehicle, a school bus, a transit vehicle, a roadway defect, or public property — the deadline collapses. Illinois generally requires filing within one year, the CTA requires written notice within six months, and Indiana requires tort claim notice in roughly 180 days for a local unit or 270 days for a State entity. *745 ILCS 10/8-101 · 70 ILCS 3605/41 · Ind. Code § 34-13-3-8, § 34-13-3-10* #### Indiana caps claims against government Where the defendant is an Indiana governmental entity, damages are capped at $700,000 per person and $5,000,000 per occurrence regardless of the actual loss. In a fatal case that cap is frequently far below the value of the claim, which makes identifying any additional private defendant the most valuable work in the file. *Ind. Code § 34-13-3-4* #### Comparative fault still applies A fatal claim is reduced by the deceased person’s share of fault and barred entirely above 50% in both states. Against an Indiana governmental defendant, contributory negligence applies instead, meaning even a small share of fault can bar recovery. Fault is contested in fatal cases precisely because the exposure is large. *735 ILCS 5/2-1116 · Ind. Code § 34-51-2-6, § 34-51-2-2* #### Dram shop claims in Illinois Where a bar or restaurant over-served the driver who caused a fatal crash, Illinois allows a separate claim against the establishment — but only for one year, and with capped damages. It has to be identified and preserved long before the main claim becomes urgent. *235 ILCS 5/6-21* These provisions turn on specific facts, and which state’s statute governs depends on where the death occurred and who the defendants are. Treat this as orientation rather than as an answer about a particular case. ### The fatal cases handled here. #### Fatal car and truck crashes The largest share. Where a commercial vehicle is involved, the carrier’s logging, maintenance and dispatch records are central and are retained only for limited periods. #### Fatal motorcycle crashes Rider fatalities carry the same hostile fault assumptions as surviving rider claims, with no one able to give the rider’s account of what happened. Scene and reconstruction evidence carries the case. #### Pedestrian and bicycle fatalities Frequently at intersections and crossings, and frequently involving sight lines, signal timing and lighting. A municipal defendant may be in the mix, which shortens the deadline. #### Impaired-driver crashes A criminal prosecution runs alongside the civil claim and generates useful evidence. In Illinois a separate one-year dram shop claim may exist against the establishment that over-served. #### Fatal falls and premises cases A fall from height, a stairway collapse, or a head injury from an unbraced fall on ice. These turn on notice, and the surveillance video that proves it overwrites within weeks. See the [slip and fall page](/slip-and-fall/). #### Government and transit vehicle deaths A city truck, a school bus, a police vehicle or a transit train puts the claim on a notice schedule of months, and in Indiana subjects it to a statutory damages cap. ### What the family actually needs to do. - **Do not sign anything an insurer sends.**Releases, broad medical authorizations, and requests for a recorded statement all arrive early. No one in the family has authority to settle the claim before an estate exists, and nothing should be signed before someone on your side has read it. - **Decline the recorded statement.**Adjusters call within days, sometimes before the funeral. There is no obligation to give the at-fault carrier an account of what happened, and doing so before the facts are known helps only them. - **Preserve the vehicle and the physical evidence.**Do not authorize salvage or disposal. In a fatal crash the vehicle carries reconstruction and event data evidence that cannot be recovered once it is crushed. - **Keep the records that arrive.**The crash report, the coroner or medical examiner’s information, hospital and ambulance records, funeral and burial invoices, and any correspondence from any insurer. These establish both liability and the loss. - **Do not let the estate wait.**Opening probate and getting a personal representative appointed is the gate everything else passes through. It can take weeks, and the claim cannot be filed or settled until it is done. - **Identify the deceased person’s own insurance.**Uninsured and underinsured motorist coverage on their policy, and sometimes on a resident relative’s policy, is frequently the largest available source of recovery in a fatal crash caused by a minimally insured driver. - **Gather what establishes the loss.**Tax returns, W-2s, pay records and benefit statements for the support claim; and for the relationship losses, the ordinary evidence of a life — who depended on this person, and for what. - **Say nothing about the case publicly.**Social media posts by family members are collected by defense counsel as a matter of routine and used to argue about both fault and the closeness of the relationship. - **Move immediately if a public entity may be responsible.**A government vehicle, a transit vehicle, a road defect or public property puts the claim on a notice schedule measured in months, and that clock does not wait for probate to finish. - **Ask about the deadline before anything else.**Between the date-of-death rule, the government notice provisions, the one-year Illinois dram shop period and contractual deadlines on the deceased person’s own policy, a fatal case can have four different clocks running at once. ### Wrongful death questions. #### Who is allowed to file a wrongful death claim? The personal representative of the deceased person’s estate — not the family directly, even where the family are the people who will ultimately recover. That means an estate has to be opened in the probate court of the appropriate county and a personal representative (an administrator or executor) appointed, with letters of office issued. The representative is frequently a surviving spouse or an adult child, but the court makes the appointment and it is governed by statute rather than by preference. Until that appointment exists, no one has legal authority to file the suit or to sign a settlement release. It is worth starting this early: where there is no will, or where family members disagree about who should serve, it takes longer, and insurers will not engage meaningfully with a claim that has no one authorized to resolve it. #### How long do we have to bring a wrongful death case? The general rule in both states is two years, but in a wrongful death case the period runs from the *date of death* rather than from the date of the crash or fall — which matters where someone survived their injuries for a period before dying. That said, several other clocks can be much shorter and they are not extended by the date-of-death rule: - **Illinois public bodies.** A claim against a city, county, township, school district or park district generally must be filed within one year (745 ILCS 10/8-101). - **The CTA.** Written notice within six months and suit within one year (70 ILCS 3605/41). - **Indiana tort claim notice.** Written notice to the correct officials in roughly 180 days for a local unit of government and 270 days for a State entity (Ind. Code § 34-13-3-8, § 34-13-3-10). - **Illinois dram shop.** A claim against an establishment that over-served the at-fault driver runs for one year, with capped damages (235 ILCS 5/6-21). - **The deceased person’s own policy.** Uninsured and underinsured motorist claims are contract claims with notice and demand deadlines set by the policy, often shorter than the statute. A fatal case can therefore have several deadlines running simultaneously, and opening the estate takes time out of all of them. If a date might be close, ask now. #### What can the family actually recover? There are generally two related claims with different measures. The **wrongful death claim** compensates the surviving spouse, children and next of kin for what they lost: the financial support the person provided — wages, benefits, and the services they contributed to the household — and the loss of the relationship itself, including society, companionship and guidance, and the grief and sorrow the statute recognizes. The **survival claim** belongs to the estate and covers what the person themselves endured between injury and death: conscious pain and suffering, the medical expenses incurred, and earnings lost in that period. Where someone survived for days or weeks in intensive care, that second claim can be substantial. Funeral and burial expenses are also recoverable. Illinois handles these under the Wrongful Death Act (740 ILCS 180/1 et seq.) and the Survival Act (755 ILCS 5/27-6); Indiana under Ind. Code § 34-23-1 et seq., where the applicable provision depends on whether the person who died was an adult with dependents, an adult without a spouse or dependents, or a child. #### The insurance company called us three days after the funeral. What should we do? Be polite and say nothing substantive. An adjuster calling that early is doing two things: trying to obtain a recorded statement before anyone knows the facts, and in some cases attempting to resolve the claim cheaply before the family has counsel. There is no obligation to give the at-fault driver’s insurer a statement. Do not sign a release, and be particularly careful with a broad medical authorization — a form permitting the carrier to pull the deceased person’s entire medical history gives the defense years of material to argue about causation. It is also worth knowing that no family member has authority to settle the claim at all until an estate is opened and a personal representative appointed, so an early "settlement" can create genuine complications. Report the death to the deceased person’s own insurer, which is a different obligation, and let the rest wait. #### Do we have to open a probate estate even if there was no money or property? Generally yes, if there is going to be a wrongful death claim, and this surprises most families. The estate exists in this context not to distribute assets but to create the legal person who can bring the claim — the personal representative. Even where the deceased person owned very little, an estate is opened, a representative is appointed, letters of office issue, and the claim proceeds in the representative’s name. The related point is that how a settlement is allocated between the wrongful death claim and the survival claim has consequences: survival proceeds pass through the estate and can be exposed to the estate’s creditors, while wrongful death proceeds are generally distributed to the statutory beneficiaries and treated differently. That allocation is a substantive decision, not a formality. Handling the probate mechanics is part of the work here, not something the family is left to arrange. #### The driver who caused the crash only had minimum insurance. Is it worth pursuing? Usually yes, because the at-fault driver’s primary policy is rarely the only source. Both states require only $25,000 per person in bodily injury coverage (625 ILCS 5/7-601; Ind. Code § 9-25-4), which is obviously inadequate in a fatal case — so the work becomes finding every other policy. That includes the at-fault driver’s umbrella coverage; an employer’s commercial or non-owned auto coverage if the driver was working or running an errand; the vehicle owner’s policy where the car was borrowed; a resident relative’s policy; and above all the uninsured and underinsured motorist coverage on the deceased person’s own policy and sometimes on a resident relative’s. In fatal crashes caused by minimally insured drivers, that last category is frequently the largest single recovery. Illinois requires uninsured motorist coverage and does not allow it to be waived (215 ILCS 5/143a); Indiana requires it to be offered but permits written rejection (Ind. Code § 27-7-5-2). Where a commercial vehicle was involved the picture is different again — interstate carriers carry federally mandated limits far above any state minimum. #### Can the family be blamed for the death? Not the family, but the deceased person’s own conduct is fair game and it is contested aggressively in fatal cases precisely because the exposure is large. Both states reduce recovery by the deceased person’s share of fault and bar it entirely above 50% (735 ILCS 5/2-1116; Ind. Code § 34-51-2-6). The particular difficulty in a fatal case is that the person best placed to describe what happened cannot testify, so the defense’s version goes unanswered unless the physical evidence answers it — scene measurements, vehicle damage and event data, signal timing, sight lines and independent witnesses. That evidence degrades quickly, which is the practical reason not to wait months before anyone begins working the claim. One further point: against an Indiana governmental defendant, contributory negligence applies instead of comparative fault (Ind. Code § 34-51-2-2), meaning even a modest share of fault attributed to the deceased person can bar recovery entirely. #### What if the person who died was retired, or was a child, or did not work? The claim remains substantial, because lost income is only one component of it. The loss of the relationship — society, companionship, guidance, and the grief and sorrow the statutes recognize — is a recoverable loss in its own right and does not depend on the person having had earnings. The services a person provided to a household, including care of children or of a spouse, are also compensable even where they were unpaid. Indiana’s statutes address these situations directly, with separate provisions for the death of an adult with dependents, the death of an adult with no spouse or dependents, and the death of a child (Ind. Code § 34-23-1 et seq.), and which one applies changes what can be recovered. Illinois handles the equivalent questions under its Wrongful Death Act. Identifying the right provision at the outset matters, because it shapes what evidence the case needs. #### What does it cost, and how long will this take? Nothing upfront — fatal cases are handled on a contingency fee, with no fee unless there is a recovery, and the case review is free. On timing, an honest answer is that these cases take longer than surviving-injury claims, for structural reasons: probate has to be opened before the claim can be filed, the coverage investigation across multiple policies takes time, and insurers defend fatal claims harder because the exposure is larger. Where a criminal prosecution is running alongside, its schedule can affect the civil case as well. What can be said is that the delays should be the ones inherent to the process rather than delays caused by no one working the file, and that the procedural burden — the estate, the letters of office, the preservation demands, the carriers — belongs to the attorney rather than the family. #### We are not sure we want to sue anyone. Is it still worth talking to you? Yes, and the reason is the deadlines. A conversation is not a commitment to file anything, but several clocks start running at the death and one of them may be short — a government notice period measured in months, a one-year Illinois dram shop period, a contractual deadline on the deceased person’s own policy. Letting those expire removes the family’s options permanently, including the option to decide later. The review is free, there is no obligation, and if the honest answer is that there is no viable claim or that the family does not need an attorney, that is what you will hear. ### Fatal claims from anywhere in Illinois or Indiana. Licensed in every county in Illinois and every county in Indiana, with an office on each side of the state line and no requirement that you visit either one — which matters more than usual when a family is managing a funeral and an estate at the same time. - **Chicago & the collar counties** — Cook, DuPage, Lake, Will, Kane and McHenry — expressway and arterial collisions, and the short notice deadlines that come with a public vehicle. - **Central Illinois** — Peoria, Springfield, Bloomington–Normal, Champaign–Urbana, Decatur, Danville and the surrounding counties. - **Indianapolis** — Marion County and the donut counties — Indiana tort claim notice runs fast where a city, school or transit vehicle is involved. - **Northwest Indiana** — Gary, Hammond, Merrillville, Crown Point, Portage, Valparaiso and Michigan City — and which state's law applies near the line. - **Central Indiana** — Lafayette, Terre Haute, Muncie, Anderson, Kokomo, Bloomington and Columbus. - **All case types** — Car, truck, motorcycle, rideshare, pedestrian and bicycle, wrongful death, and premises claims — what each one involves. --- Attorney Jeffrey Kooi, licensed in Illinois and Indiana since November 2000. Free case review: (217) 833-8319 or jeff@jeffatlaw.com. Contingency fee -- no fee unless you recover. This page is general legal information, not legal advice for a specific situation. This is attorney advertising; prior results do not guarantee a similar outcome.