For different reasons, a probate case may involve a personal injury claim of the person who died and whose estate is being probated. Sometimes, it is due to an injury involving the liability of another party which killed the person, either immediately or after a time of pain and suffering. Other times it is due to a person being injured due to the liability of another and that injured person dying during the litigation process (whether by the injury at the heart of the lawsuit or by any other reason). When a Personal Representative is probating the estate of someone who died (decedent) with a personal injury claim, it’s important to understand how that process works within the probating of the estate. Let me explain.
First, it’s important to understand that South Carolina Law states that the Personal Representative (person appointed to Probate a decedent’s estate) has the duty to continue a personal injury lawsuit started before the death on behalf of the decedent, or even to bring a lawsuit on behalf of the decedent for injuries which caused his death. If the person dies during litigation of a personal injury matter, the Personal Representative (PR) will usually work with the lawyer(s) bringing the suit against the liability party. The litigation process remains the same, though in practice suits will usually settle at this point. If not, the suit continues with the PR acting as the Plaintiff, including making the decisions about litigation and settlement, and strategy. When a settlement or jury verdict resolves the case, the proceeds of the case go into the Estate to be divided to the beneficiaries of the decedent’s will or intestate beneficiaries. The PR has the duty to work with the attorneys through resolving the matter, and this can include a separate hearing for approval of any settlement by a judge.
In the case of someone dying from the liability of another in South Carolina, the PR has the duty to bring a suit (or seek a negotiated settlement) for the pain and suffering the decedent suffered before death. This is called a “survival action”. Other family members can bring separate actions for what damages the death caused them. For example, if the decedent is a breadwinner of a family and is killed by the liability of another, the spouse and children can bring a “wrongful death” action for the loss of money (and other losses) from the death of the breadwinner and caregiver. Usually, the same people who can bring action under wrongful death will also receive the proceeds of a survival action, as they are usually the beneficiaries by Will and/or intestate proceedings.
The PR will generally have attorney assistance for probating an Estate but will need to understand and follow and prosecute personal injury cases while probating an Estate. It’s all part of the duty to the person who died, and ensuring rights are vindicated even after death.
If you are in need of an attorney to assist in matters of probate and or personal injury cases in South Carolina, please contact The Bill Connor Law Firm, we are here to help.
