CONSIDERATIONS IN PROBATING AN ESTATE WHILE HANDLING SURVIVAL ACTION PERSONAL INJURY CLAIMS

CONSIDERATIONS IN PROBATING AN ESTATE WHILE HANDLING SURVIVAL ACTION PERSONAL INJURY CLAIMS

 One of the tougher duties a person can perform is to act as Personal Representative of the Estate of a loved one. Normally, the Personal Representative, formerly called “Executor” for men and “Executrix” for women, is the closest relative to the deceased person. Closest relative is usually either the living spouse, if still married, or one of the living children.  The estate could be quite simple, either due to Estate planning for transfers outside of probate (like “payment on death” provisions on joint bank accounts to another, or real estate transferred with a “life estate” provision to the decedent).  The estate can also be very complex, with multiple real estate properties and multiple accounts going through probate and stock transfers. A unique issue in handling an estate as Personal Representative is prosecuting a personal injury survival action claim by the estate against a negligent party. Juggling these duties takes some work, as I will explain.

 

       First, if your loved one has a substantial and complex estate, it’s important to Petition for Personal Representative (PR) as soon as possible after death.  You will have to have a death certificate (provided by Funeral Home usually), and a copy of the will if a will exists. Until someone is appointed PR, nobody has the same legal powers to conduct business of the estate in the same way as the decedent.  For example, to get into the decedent’s bank account to put the money in the estate account, the bank will require Personal Representative Appointment orders by the Probate Judge.  Same with handling real estate and investments.  A duty of the Personal Representative is to maintain and safeguard the estate until it is distributed, and this can only be done properly with the PR appointment orders.  Note: A Power of Attorney is only effective during the life of the person granting the power, so that is no help with the estate.

 

       While getting an inventory and appraisement of the estate and other matters associated with the estate in Orangeburg SC, it’s important to begin prosecuting any survival action claims as soon as possible.  First, there are statute of limitations on bringing these lawsuits, and normally three years is the maximum time period from the accident/injury.  Second, to prosecute the matter requires it be done by the Personal Representative during the processing of the estate.  Once the estate is processed and closed, the PR duties and authorities end.  The PR is prosecuting the claim on behalf of the decedent for the injury, pain and suffering damages suffered by the decedent before he died.  It’s important to retain counsel (who will usually work the case on contingence and not hourly fee), and make the claim against the insurance company of the wrongdoer.  In many cases involving death, other parties may have claims and all parties are seeking a limited insurance source of damages. The saying “first come, first serve” can apply in these kinds of cases, as the insurance company will only settle out to what’s available in terms of limits.

 

      The key is to get on top of the PR duties as soon as possible, and prosecute claims diligently while processing and distributing the estate.  In many ways, it’s the last way to show love through actions to the person who died in carrying out wishes and seeking justice for wrongs done…

 

Last modified on Wednesday, 12 May 2021 11:04

Bill Connor Orangeburg Attorney Bill Connor received his Bachelor of Arts from The Citadel in 1990, and after serving for over a decade as an Infantry Officer in the U.S. Army, including three deployments to the Middle East, he received his Juris Doctorate from The University of South Carolina in 2005. In 2012, Bill was honored to receive an AV® Preeminent™ Peer Review Rating by Martindale-Hubbell®, the top peer rating for American lawyers. Receiving this rating at such an early point in his career is unheard of among lawyers.

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