Although not a common occurrence, there are situations in which an estate ends up being sued for one reason or another. One type of situation of this nature is an estate in probate being sued in a personal injury or wrongful death case. An example of such a case is one in which the deceased individual caused a car accident that injured or killed another person. The person that caused the car accident was either killed in the collision or died some time after but before a claim or lawsuit was concluded. There are some basic facts and factors that you need to generally understand when it comes to an estate being sued in a personal injury or wrongful death case.

Estate Opens Before a Personal Injury or Wrongful Death Lawsuit Is Filed

As mentioned, there are situations in which a person is alleged to have caused an accident, dies, and then is sued by a person who was injured in that incident (or by the family of an individual killed in the accident). In such a situation, the estate of the person being sued will likely be in existence before a wrongful death lawsuit is filed.

In the alternative, if no estate is opened following the death of the person ultimately being sued for causing an accident, the family of the person killed as a result of the accident can pursue the opening of an estate in the local probate court to address matters related to the litigation.

A Defendant Dies During a Personal Injury or Wrongful Death Lawsuit

Another scenario involves a defendant who dies whilst a wrongful death lawsuit is underway. When that happens, an estate may open because the individual had a will or heirs that potentially will inherit assets in the absence of a will. As can happen when an individual dies before a wrongful death lawsuit, the individual or individuals pursuing the litigation seek the establishment of an estate in the local probate court.

Executor or Administrator Is the Ultimate Decision-Maker

When an estate is involved in wrongful death litigation (or a lawsuit of any type), the estate legally stands in the place of the individual who has died. As an aside, in addition to being the defendant in a wrongful death lawsuit, an estate can also file and pursue a wrongful death lawsuit if the deceased individual allegedly died because of the negligence of someone else.

When an estate is involved in a wrongful death lawsuit, or any type of litigation for that matter, the executor or administrator of the estate becomes the ultimate decision-maker in regards to matters that would be within the province of the deceased individual if he or she were still living.

The Need to Hire a Personal Injury Lawyer

In a majority of personal injury and wrongful death cases, there is an insurance company involved in the process. For example, if the estate of the deceased individual is being sued because of an allegation that the person who passed was negligent in causing a car accident, the deceased person’s automobile insurance will be at the heart of the litigation. In most cases of this nature, the automobile insurance company provides legal representation on behalf of the company itself and the insured (or, the state of the insured is that individual died before or during the probate process). Thus, in most cases, when an estate is being sued as a defendant in a wrongful death case, there is no need for an estate to hire a personal injury attorney.

On the other hand, if the estate is the plaintiff in a wrongful death case, the engagement of a personal injury attorney is recommended. Even if the estate already has engaged a probate lawyer, the professional assistance of a personal injury lawyer is needed because probate and wrongful death laws are very different areas of legal practice.

Resolution of Case Before Distribution of Assets

If an estate becomes involved in a wrongful death case as a defendant, this situation can have a notable impact on the resolution of the probate process and the final disposition of the estate – including the ultimate distribution of assets to the heirs. Technically speaking, while an insurance policy will pay a judgment in a wrongful death case, a judgment in a wrongful death lawsuit could be for more money than the insurance covers. If that happens, an estate legally is financially responsible for the balance due. (If the individual who is the subject of the estate proceedings were alive, he or she would likewise be legally responsible for a judgment above and beyond what was covered by an insurance policy.) Thus, until there is a final resolution of a wrongful death case, and an understanding of what direct financial responsibility (if any) the estate might have in the litigation, the probate court is not at all likely to permit a significant distribution of assets.