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Understanding Probate Issues In Your Personal Injury Case


In the world of personal injury law, you may not think that probate issues come up very often. But they do; people often pass away before their claim is resolved, or before their case goes to trial. That may happen as a result of the injuries they sustained in the accident, or from other causes, unrelated to the accident.

Substitution is Allowed

The law allows the relatives, next of kin, and survivors to carry on the personal injury lawsuit even when the victim has passed away. But there are probate issues that a personal injury attorney has to be aware of, when that happens.

Your estate can certainly pursue your injury claim for you, even if you were to pass away before the case was resolved. But that doesn’t happen automatically. There are procedures that must happen in the probate court, to allow that to happen.

Passing Away Before the Lawsuit is Filed

The personal representative of the estate can file a lawsuit on behalf of the deceased, in the event that the victim dies after the accident, but before the lawsuit is actually filed. The statute of limitations (time limit to file the lawsuit) remains the same. However, if the time limit left on the statute of limitations is less than a year, then the representative will have a year to file the claim.

You may need to open a probate case, to have a personal representative appointed by the probate court.

After the Lawsuit is Filed

If the victim (Plaintiff) does after the lawsuit is filed, but before the case resolves, things can get a bit more complex. The estate can substitute for the (now deceased) Plaintiff. However, the estate must actually exist. That means that it has to be opened in the probate court.

The law doesn’t give you much time to do that; if no estate substitutes for the deceased Plaintiff within 90 days of death, the personal injury lawsuit may not be able to be pursued. It is a time limit that is easily forgotten or missed. The family of a deceased may have a lot going on and telling the deceased’s personal injury attorney about the death, may not be the first thing on relatives’ minds.

Opening an Estate

To have the estate substitute in as a Plaintiff, there must actually be an estate opened. You may have one open anyway, if you have an estate attorney that is handling probate matters, but if not, you may need to obtain an estate attorney, to have an estate opened, to allow you to pursue the deceased’s claim.

Although this sounds like a lot of work, if the value of the lawsuit is potentially significant, the lawsuit may be an asset that makes the effort well worth it to the deceased’s beneficiaries.

Contact Barbas, Nunez, Sanders, Butler & Hovsepian and schedule a consultation today to help you if someone you know or care about has been a victim of wrongful death or an injury that caused them to pass away.


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