NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except 

in the limited circumstances allowed under Rule 23(e)(1). 

2023 IL App (3d) 210602-U

Order filed July 6, 2023

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2023 

In re ESTATE OF HENRY A. GETZ, )

 ) 

Deceased, ) 

 ) 

(Jackie Lysengen, ) 

 ) 

Claimant-Appellant, ) 

 ) 

 v. ) 

 ) 

Jan Rouse, ) 

 ) 

 Executor-Appellee). )

Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Tazewell County, Illinois, 

Appeal No. 3-21-0602 

Circuit No. 17-P-293 

Honorable 

Paul E. Bauer, 

Judge, Presiding.

____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court. 

Justices McDade and Davenport concurred in the judgment. 

____________________________________________________________________________

 ORDER

¶ 1 Held: The trial court properly granted motion to dismiss and disallow claim against 

estate where claimant filed claim beyond six-month and two-year limitations 

periods under Probate Act. 

 

¶ 2 Jackie Lysengen filed a claim against the Estate of Henry A. Getz (Estate), seeking to 

recover damages based on a pending federal lawsuit in which she alleged that Getz and others 

violated the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et 
2 

seq.). The trial court granted the Estate’s motion to disallow and dismiss, concluding Lysengen’s 

claim was time-barred by the six-month and two-year limitations periods under the Probate Act 

of 1975 (Probate Act) (755 ILCS 5/18-12(a), (b) (West 2020)). Lysengen appeals, claiming the 

trial court erred in dismissing her claim because ERISA’s six-year statute of limitations preempts 

the shorter time limits under the Probate Act. We affirm. 

¶ 3 I. BACKGROUND 

¶ 4 On November 3, 2017, Henry A. Getz, a major shareholder in Morton Buildings, Inc., 

died. On November 9, 2017, the executor filed a petition to admit the will and to issue letters of 

administration. The trial court issued an order admitting the will on November 13, 2017, opening 

the estate for probate. The first notice of claim date was published on January 6, 2018, and 

required claims to be filed within six months of the first date of publication. 

¶ 5 Jackie Lysengen was an employee of Morton Buildings from December 28, 1990, to 

August 23, 2019, and is a participant in the company’s employee stock ownership plan (ESOP). 

In April 2020, she filed suit in federal court under the Employee Retirement Income Security Act 

of 1974 (ERISA) (29 U.S.C. § 1001 et seq. (2012)) against Argent Trust Company and two 

majority shareholders of Morton Buildings, Rouse and Edward Miller (members of the Getz 

family). Lysengen claimed that the defendants violated several ERISA provisions governing 

employee pension plans when they agreed to sell all of the company’s shares to the ESOP in 

May 2017. Specifically, the federal complaint alleged that the defendants caused the ESOP to 

purchase approximately 2 million shares of company stock at a value of $75.25 per share on May 

8, 2017, and that the value of the stock fell to $33.78 per share by December 31, 2017. Lysengen 

asserted that Argent, as the ESOP’s trustee, and the selling shareholders violated ERISA by 

approving the transaction and selling the shares well-above fair market value. 
3 

¶ 6 On June 4, 2021, Lysengen requested leave to add Getz’s estate as a defendant in the 

federal case. The federal district court granted Lysengen’s request, and on August 19, 2021, she 

filed an amended complaint naming the Estate as a selling shareholder based on Getz’s 

participation in the transaction prior to his death. Lysengen asserted the Estate had actual and/or 

constructive knowledge of the wrongdoing and received a benefit that violated ERISA. Among 

other remedies, she sought to recover the excess consideration the Estate received from the 

alleged unlawful stock sale, requesting the Estate “make good to the Plan *** the losses resulting 

from the breaches of ERISA and restore any profits [the Estate] has made through use of assets 

from the Plan.”1

 

¶ 7 On August 31, 2021, Lysengen filed a state claim against the Estate in probate court. The 

claim alleged that the Estate was liable to Lysengen based on the ERISA violations asserted in 

the federal action. She attached a copy of the amended federal complaint and noted that the 

requested award was an amount “to be determined in the pending action” in federal court. 

¶ 8 The Estate filed a motion for disallowance and dismissal of Lysengen’s claim, arguing 

that the 6-month and 2-year limitations periods in the Probate Act barred the claim. See 755 

ILCS 5/18-12(a)(1), (b) (West 2020). Lysengen opposed the motion, claiming that ERISA’s 

preemption provision in section 1144(a) (29 U.S.C. § 1144(a) (2012)) and the six-year statute of 

limitations in section 1113 (id. § 1113) preempted the shorter time limits in the Probate Act. The 

1 On March 22, 2022, the United States District Court for the Central District of Illinois denied the Estate’s 

motion to dismiss, holding that: (1) the probate exception did not apply and did not divest the federal court 

of jurisdiction over Lysengen’s ERISA claim; and (2) ERISA’s six-year statute of limitations (29 U.S.C § 

1113) preempted the Illinois Probate Act’s shorter limitations periods. See Lysengen, on Behalf of the 

Morton Buildings, Inc. Leverage Employee Stock Ownership Plan. v. Argent Trust Co., No. 20-1177 (C.D. 

Ill. March 22, 2022). 
4 

trial court entered an order granting the Estate’s motion and disallowing Lysengen’s claim on 

November 30, 2021. 

¶ 9 II. ANALYSIS

¶ 10 Lysengen contends that the trial court erred in granting the Estate’s motion to disallow and 

dismiss her claim because the federal statute of limitations preempts the Probate Act’s time limits. 

She maintains that since Getz participated in the transaction which violated ERISA before his 

death and she filed her federal lawsuit against the Estate within the six-year limitations period 

allowed under ERISA, her claim is not time-barred by the Probate Act. Determining the 

applicability of a statute of limitations to a claim presents a legal question we review de novo. 

Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461, 466 (2008). 

¶ 11 “Under the common law of Illinois, a dead person is a nonexistent entity and cannot be 

party to a suit.” Relf v. Shatayeva, 2013 IL 114925 (citing Volkmar v. State Farm Mutual 

Automobile Insurance Co., 104 Ill. App. 3d 149, 151 (1982)). The Probate Act, however, allows 

creditors and other claimants to pursue a claim against an individual posthumously through their 

estate. See 755 ILCS 5/18-1 et seq. (West 2020). The administration of a decedent’s estate is a 

creature of statute and is governed exclusively by provisions of the Probate Act. In re Estate of 

Zagaria, 2013 IL App (1st) 122879, ¶ 15. 

¶ 12 Section 18-12(a)(3) of the Probate Act provides: 

“(a) Every claim against the estate of a decedent, except expenses of 

administration and surviving spouse’s or child’s award, is barred as to all of the 

decedent’s estate if : 

 * * * 
5 

 (3) The claimant’s address is not known to or reasonably 

ascertainable by the representative and the claimant does not file a claim 

with the representative or the court on or before the date stated in the 

published notice as provided in Section 18-3.” 755 ILCS 5/18-12(a)(3) 

(West 2020). 

Under section 18-3, notice of publication must state that claims may be filed on or before the 

date set forth in the notice, “which date shall be not less than 6 months from the date of the first 

publication ***.” Id. § 18-3(a). The date provided in the published notice sets the applicable 

period for filing claims. Polly v. Estate of Polly, 385 Ill. App. 3d 300, 304 (2008). 

¶ 13 Section 18-12(b) of the Act further provides that “[u]nless sooner barred under subsection 

(a) of this Section, all claims which could have been barred under this Section are, in any event, 

barred 2 years after decedent’s death, whether or not letters of office are issued upon the estate of 

the decedent.” 755 ILCS 5/18-12(b) (West 2020). This section is a grant of jurisdiction. Walstad 

v. Klink, 2018 IL App (1st) 170070, ¶ 14; see also In re Marriage of Epsteen, 339 Ill. App. 3d 

586, 596 (2003) (“statute providing for a claim against an estate within a prescribed period is a 

grant of jurisdiction, not a general statute of limitations”). Consequently, the trial court has no 

authority to hear a claim against an estate after the two-year statutory period has passed. 

Walstad, 2018 IL App (1st) 170070, ¶ 14. 

¶ 14 The Probate Act broadly defines a “claim” to include “any cause of action.” 755 ILCS 

5/1–2.05 (West 2020). Thus, the two-year statutory limitations period applies to any claim 

regardless of its legal basis. See Rozycki v. Gitchoff, 180 Ill. App. 3d 523, 525 (1989) (claims 

based in contract, tort, or any other theory must be filed within the statutory period and cannot be 

pursued in a separate proceeding after that period has ended). This inflexible time frame was 
6 

enacted by the legislature to promote the early settlement of estates. In re Estate of Parker, 2011 

IL App (1st) 102871, ¶¶ 57-58. “The time frame cannot be extended even for equitable reasons, 

and, once it has expired, courts have no jurisdiction to adjudicate any claim against an estate.” In 

re Estate of Zivin, 2015 IL App (1st) 150606, ¶ 10. 

¶ 15 Here, the time limitations set forth in the Probate Act are crucial. The executor published 

notice on January 6, 2018, and, in accordance with section 18-12(a)(3), it required all claims to 

be filed by July 6, 2018. In addition, under section 18-13(b), all claims against the Estate, 

regardless of notice or legal basis, were required to be filed by November 3, 2019, two years

after Getz’s death. Lysengen filed her ERISA complaint in federal court on April 30, 2020, and 

first requested leave to add the Estate as a defendant on June 4, 2021. Moreover, she did not 

formally file a claim in probate court until August 31, 2021. Thus, by any measurement, she 

missed the time within which to assert her claim against the Estate. Accordingly, the probate 

court lacked jurisdiction under section 18-12 of the Probate Act, and the trial court properly 

granted the Estate’s motion to disallow and dismiss her claim. 

¶ 16 Lysengen suggests that the March 22, 2022, decision by the federal district court in the 

underlying ERISA action requires a different result and controls our disposition. See Lysengen, 

on Behalf of Morton Buildings, Inc. Leverage Employee Stock Ownership Plan v. Argent Trust 

Co., No. 20-1177, slip op. 3-5 (C.D. Ill. March 22, 2022). In Lysengen’s federal case, the Estate 

argued that it lacked the capacity to be sued because the two-year limitations period in the 

Probate Act preempted federal jurisdiction. Id. slip op. 2. The federal district court held that 

Congress enacted ERISA to establish a uniform set of rules to regulate pension plans and that the 

two-year limitations period in section 18-12(b) of Illinois’s Probate Act did not preempt 

ERISA’s six-year statute of limitations. It then concluded that the “probate exception” to federal 
7 

jurisdiction did not bar Lysengen’s federal ERISA claim and denied the Estate’s motion to 

dismiss. Id. slip op. 3. 

¶ 17 We read the federal case in sync with our ruling today. The “probate exception” is a 

narrow, limited doctrine that: (1) “reserves to state probate courts the probate or annulment of a 

will and the administration of a decedent’s estate[;]” and (2) “precludes federal court from 

endeavoring to dispose of property that is in the custody of a state probate court.” Marshall v. 

Marshall, 547 U.S. 293, 311-12 (2006); see also Jones v. Brennan, 465 F.3d 304, 306 (7th Cir. 

2006). In rejecting the probate exception in Lysengen’s federal case, the district court held that 

“the application of the shorter state period for filing would infringe upon the exclusive federal 

concern in uniformity of pension plan regulations and thus would be inappropriate in this 

context.” Essentially, the federal district court concluded that it has subject matter jurisdiction 

over the federal ERISA claim and that its authority to resolve the ERISA issue was not 

controlled by a state probate statute. Likewise, in this case, the probate court’s jurisdiction to 

resolve estate matters and dispose of property in the custody of the probate court is not controlled 

by the federal statute of limitations. 

¶ 18 To be sure, the federal district court appropriately determined that it has authority to 

adjudicate the validity of the ERISA claim, leaving Lysengen to assert her federal judgment in 

probate court. However, the federal court’s ruling does not interfere with the state court’s 

possession of estate property or the administration of the estate. Its ruling in no way limits the 

state court’s ability to exercise jurisdiction over the probate claim. See Wilmington Trust, 

National Ass’n v. Estate of McClendon, 287 F. Supp. 3d 353, 363 (S.D.N.Y. 2018) (in denying 

motion to dismiss and finding probate exception inapplicable, court noted that federal judgment 
8 

only interpreted guaranty and adjudicated rights under federal law but did not instruct the state 

probate court in the probate proceeding how to exercise jurisdiction or distribute the estate). 

¶ 19 Nevertheless, Lysengen insists that the six-year statute of limitations should apply, noting 

that Congress intended for the ERISA preemption to be broad. See Egelhoff v. Egelhoff ex rel. 

Breiner, 532 U.S. 141, 146 (2001) (emphasizing that ERISA preemption provision is deliberately 

expansive and designed to establish pension plan regulation as an exclusively federal concern). 

Lysengen cites several federal cases holding that ERISA preempts state provisions where 

conflicting statute of limitations exist. See, e.g., Hemphill v. Estate of Ryskamp, 619 F. Supp 2d 

954, 978-80 (E.D. Cal. 2008); Board of Trustees of Western Conference of Teamsters Pension 

Trust Fund v. H.F. Johnson, Inc., 830 F.2d 1009, 1016-17 (9th Cir. 1987). Those case are easily 

distinguishable in that they involve the analysis of federal jurisdiction over an ERISA claim. As 

the federal district court has ruled in Lysengen’s underlying case, the federal court has 

jurisdiction to consider her claim that defendants, including the Estate, violated ERISA when 

they sold company stock to the ESOP. However, any federal court judgment against the Estate 

would then have to be enforced in state court by filing a claim against the Estate in probate 

proceedings. At that point, the same result would be required—dismissal of the claim based on 

lack of jurisdiction. 

¶ 20 In this case, the six month and two-year limitations periods bar Lysengen’s claim. As the 

Estate notes, even if Lysengen were to obtain a judgment against the Estate in federal court, she

could not recover from the Estate. Lysengen asks to stand in line with other claimants in probate 

court, but she failed to secure her place in that line under sections 18-12(a) and 18-12(b) of the 

Probate Act. A judgment, or the possibility of a judgment, by the federal court does not create a 

pathway for Lysengen to assert a claim against the Estate in state court: 
9 

 “While [a claimant] may not be denied his right to prosecute an action or 

judgment or a suit to final decree in the federal court, such judgment or decree can 

do no more than adjudicate the validity and amount of his claim. The marshalling 

of that claim with others, its priority, if any, in distribution, and all similar 

questions, are for the probate court upon presentation to it of the judgment or 

decree of the federal court. Thus, though a receiver should resort to the United 

States District Court he would need to present, in a probate court, any judgment 

obtained, if he desired payment from the assets under the control of the latter.” 

Pufahl v. Parks’ Estate, 299 U.S. 217, 226 (1936). 

At this point, the door for new claims against the Estate is closed, and there is no 

mechanism to reopen it.

¶ 21 III. CONCLUSION

¶ 22 The judgment of the circuit court of Tazewell County is affirmed. 

¶ 23 Affirmed.