Illinois Senate Bill 2179: Statute of Repose for Estate Planning
On August 13, 2021, Governor Pritzker signed Illinois Senate Bill 2179 into law, amending 735 ILCS 5/13-214.3. This vital legislation establishes a six-year statute of repose for claims against attorneys related to preparing an estate plan.
ISBA Mutual Insurance Company delves into the details of Illinois Senate Bill 2179, explaining its implications for estate planning attorneys and their clients. Furthermore, this clarifies the distinction between statutes of limitation and statutes of repose.
Understanding the Statute of Repose Under SB2179
Illinois Senate Bill 2179 introduces a critical change by imposing a six-year statute of repose on legal malpractice claims related to estate planning. According to the bill, any claims against an attorney must be brought within the time frame specified for claims against an estate or for contesting a will. This period can be as short as six months. SB2179 adds a further restriction by stipulating that no claims may be brought more than six years after the services were performed, regardless of when the issue was discovered.
This statute of repose is designed to provide a definitive time limit within which claims must be made, creating certainty for attorneys and their clients. By establishing a precise end date for potential legal actions, the statute helps prevent the indefinite threat of litigation, which can significantly burden legal professionals.
Distinguishing Between Statutes of Limitation and Statutes of Repose
New and experienced lawyers often confuse statutes of limitation and statutes of repose. Understanding the difference between these two legal concepts is crucial to navigating the legal landscape effectively.
A statute of limitations sets a deadline for filing a claim once the cause of the claim is discovered. In Illinois, 735 ILCS 5/13-214.3 establishes a two-year statute of limitations for legal malpractice actions, incorporating the discovery rule. This means the clock starts ticking when the plaintiff knows or should have known about the injury caused by the attorney's alleged malpractice.
In contrast, a statute of repose limits the time a claim can be filed, regardless of when the injury was discovered. The statute of repose provides a final cutoff date for legal actions, which the discovery of the harm cannot extend. This absolute limit helps to create legal certainty and reduce prolonged exposure to liability for attorneys.
Implications of SB2179 for Estate Planning Attorneys
Illinois Senate Bill 2179 has significant implications for estate planning attorneys. By imposing a six-year statute of repose, the law ensures that attorneys are not indefinitely exposed to legal malpractice claims related to their estate planning services. This new provision encourages timely claim filing, which can help protect both attorneys and their clients from prolonged legal uncertainty.
Estate planning attorneys should be aware of the following key points under SB2179:
Timely Filing: Clients must bring any claims against their attorney within six months for claims against the estate or for contesting a will. Beyond this period, the six-year statute of repose applies, providing a final deadline for legal actions.
Legal Certainty: The statute of repose creates a precise time limit for potential claims, helping attorneys manage their risk and exposure to liability.
Client Communication: Attorneys should inform their clients about these time limits to ensure they understand the importance of timely filing claims and the potential consequences of missing these deadlines.
Practical Steps for Attorneys to Mitigate Risk
To mitigate the risk of legal malpractice claims under the new statute of repose, estate planning attorneys can take several practical steps:
Documentation: Maintain thorough and accurate records of all client interactions, advice given, and services performed. Detailed documentation can provide critical evidence if a claim is filed.
Client Communication: Communicate the scope of services, potential risks, and the importance of timely filing claims. Provide clients with written documentation outlining these points.
Continuing Education: Stay updated on estate planning laws and best practice changes. Regularly attending continuing legal education (CLE) courses can help attorneys stay informed and reduce malpractice risk.
Professional Liability Insurance: Ensure your professional liability insurance policy adequately covers potential claims. Review your policy regularly to understand the coverage limits and exclusions.
Embracing the Changes Brought by SB2179
Illinois Senate Bill 2179 represents a significant development in the legal landscape for estate planning attorneys. By establishing a six-year statute of repose, the law provides a clear and definitive time limit for filing claims related to estate planning services. Understanding and complying with these new provisions is essential for attorneys to manage their risk and provide the best possible service to their clients.
At ISBA Mutual, we are committed to supporting attorneys through these changes and helping them navigate the complexities of professional liability. Our policies are designed to provide comprehensive coverage and peace of mind, ensuring that you can confidently focus on your practice. For more information about Illinois Senate Bill 2179 and how it affects estate planning, please contact the Illinois professional liability insurance firm of ISBA Mutual Insurance Company.
