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The Takeaway

The concept of a “claim” can be interpreted broadly. Thus, any potential claims—even those alleging breach of fiduciary duty against a nominated executor who doesn’t open an estate—should be brought against the estate within the two-year statute of limitations after the decedent’s death (pursuant to 735 ILCS 5/18-12).[i]

Case Background

In 2009, decedent executed a last will and testament appointing his daughter (“Connor”) as the executor, and if she was unwilling to serve, his son (“Smith”). Connor had power of attorney, was the beneficiary of decedent’s life insurance policies, and shared joint tenancy with survivorship in several of his bank accounts. Decedent had no probate assets.

After decedent’s death in 2021, Connor emailed the heirs about the amount of funds in the various accounts and stated that she was working on disbursing the funds. Shortly thereafter, Connor sent an email to Smith saying she would keep him posted. The email thread to Smith included a copy of an email Connor’s husband sent to an attorney requesting assistance because a family member had accused Connor of taking money that wasn’t hers. The attorney contacted the heirs with a proposed agreement, including the distribution of the funds and expenses that included approximately $6,000 in legal fees.

Smith’s Complaint

In 2024, Smith filed a complaint. He sought a declaratory judgment and an accounting of the expenditures, and he alleged that Connor breached her fiduciary duty. Connor was deposed and admitted she never intended to hire an executor as indicated in the email thread.

Smith amended his complaint. He alleged breach of fiduciary duty against Connor because she: 1) failed to notify plaintiff that the will was filed in Champaign County; 2) attempted to administer the distribution of assets without opening an estate; 3) incurred unnecessary legal fees; 4) engaged in self-dealing by placing her own interests above the heirs; 5) failed to provide an accounting; 6) failed to keep the heirs reasonably informed; and 7) misrepresented and concealed facts regarding the estate.

Trial Court’s Decision

Although the statute of limitations for breach of fiduciary duty is five years, Connor filed a motion to dismiss because Smith was outside the two-year statute of limitations to bring claims against the estate. The trial court granted the motion, finding that “the claim for breach of fiduciary duty was ‘really relate[d] to the administration of the estate and claims against the estate’ and was time-barred as filed outside of the two-year statute of limitations, pursuant to section 18-12 of the Act (735 ILCS 5/18-12).”

Smith appealed.

Appellate Court’s Analysis

Smith argued that his claims were not barred by the Act because he sued Connor in her individual capacity, not as executor of the estate. However, Smith’s complaint alleged that Connor “misappropriated Estate Assets,” and he sought to replace Connor as executor, obtain an accounting of the estate assets, and secure distribution of the estate assets to himself and the other heirs due to Connor’s alleged misappropriation.

Regarding the claim for an accounting, the court discussed Polly, a case where a widow sued her husband’s estate for an accounting and breach of contract more than two years after her husband’s death.[ii] The Polly court determined that the widow’s suit was against the estate itself rather than seeking to enforce her rights under the will. The court also discussed McDonald, a case where the petitioner objected to the distribution plan and sought to assert her rights as the putative spouse more than two years after the decedent’s death.[iii] The McDonald court determined that her suit was against the estate and therefore untimely.

Smith argued that his claim was unlike Polly and McDonald because his claims were against Connor in her individual capacity and because he didn’t seek the entire distribution of the estate.

The court ultimately disagreed with Smith and held that like Polly and McDonald, “a cause of action filed by an heir seeking distribution of estate assets, or for an accounting of estate assets, is a claim against the estate under the Act.” Therefore, Smith’s claims regarding the accounting were time barred.

The court reaffirmed “that compliance with section 18-12(b) is mandatory, and no exception to the filing period may be granted by judicial decision. The time for filing a claim begins to run at the date of death, and it continues to run even if, as here, no formal probate estate is opened within the two-year period.”[iv]

The court also held that Smith’s breach of fiduciary duty claims were really against the estate and, therefore, time barred.

[i] Smith v. Connor, 2025 IL App (2d) 240536, ¶¶ 1-30

[ii] Polly v. Estate of Polly, 385 Ill. App. 3d 300, 301, 896 N.E.2d 350, 351-52 (1st Dist. 2008).

[iii] McDonald v. McDonald (In re Est. of McDonald), 2024 IL App (2d) 230195, ¶¶ 3-8, 240 N.E.3d 1214.

[iv] Smith v. Connor, 2025 IL App (2d) 240536, ¶ 24