How to find a law suit settled out of the courts.

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How to find a law suit settled out of the courts.

A family member was living at a nursing home and ended up having a leg partially
amputated due to gang green of the toe. Later the family member ended up passing
away. We as a family felt we had a case against the nursing home. We believe
the Executor of the will settled out of court for an unknown amount and did not
disperse the settlement with the other siblings. The questions is how do we find
evidence of the settlement?

Asked on October 6, 2017 under Malpractice Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Out of court settlements are not filed anywhere: because they are out-of-court, the court system is not involved. There is no central place where this would be recorded; only the parties would have it. You should be able to get from the executor if you are heirs: it affects your inheritance. If the executor does not voluntarily provide it, you could sue the executor for it: executors are bound by what is called a "fiduciary duty," or duty imposed by law to act in the interests of the heirs, not him/herself. If an executor did not distribute any settlement as per the will or as per the rules for intestate succession (if there was no will), you could file a lawsuit in chancery court (a part or division of county court) seeking an "accounting": that is, requiring the executor to account for his actions as executor. In the course of that lawsuit, you could use the processes of "discovery" (subpoenas; written document requests; written questions called "interrogatories") to get the information and a copy of any settlement from the executor and also from the nursing home. If it turns out that the executor acted improperly and kept money which should have been distributed for himself, the court can require him to pay it to the heirs out of his own pocket. Of course, if there is no such settlement, you will have gone to the time and cost of a lawsuit for nothing; and since you can only use disccovery in a lawsuit, you have to make the decision to sue before knowing if there is any  such settlement. And since chancery court cases are more procedurally complex than other cases in many ways, you *really* want to hire--which then means pay for--an attorney to help you.


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