Probate Issues When The Victim In An Injury Case Dies

Sadly, many of the injuries that people sustain in accidents lead to death. In other situations, the injury sustained in an accident doesn’t cause the death, but at some point before the case can be resolved, the victim may pass away, while the case is still pending.

Can the case still continue? The answer is yes. Not only does the law allow a deceased or his or her representatives to recover damages, but even probate laws allow an estate to take the place of the victim in a personal injury case.

Passing Away Before a Lawsuit is Filed

If a victim passes way between the accident, and the time that the lawsuit seeking damages for the accident is actually filed, the Florida probate code says that so long as the claim is still brought within the allowable time limit (the statute of limitations), the personal representative of the estate can substitute in as the Plaintiff (the victim), and carry on the suit on behalf of the estate.

The personal representative must file the lawsuit within the statute of limitations—but if the statute of limitations is less than a year, the representative will have a year to file the lawsuit.

Death When the Lawsuit is Already Filed

But what if someone dies after the case is filed, and while the lawsuit is still pending, awaiting a resolution?

If this happens, then the estate of the deceased can substitute in as a named Plaintiff in the case. But you do need to act fast—the law says that this substitution has to happen within ninety (90) days, or else the victim and the estate will lose the right to continue the case.

Yes, certainly when there is a death in the family the last thing on your mind may be to tell your personal injury attorney so that the injury case for the estate can continue. But it is important to act quickly, so this should be something on your mind.

Changing the Cause of Action

There are also issues as to whether the case will continue as a survival action or a wrongful death case, which largely will depend on whether or not the injury sustained in the accident actually caused the death.

In addition to substituting the actual named Plaintiff, it is possible an amended complaint may need to be filed, changing the theory of recovery to a wrongful death case. A wrongful death case can only be pursued by the personal representative of the estate, on behalf of the estate of the deceased.

Worth it?

If an estate is not opened or wouldn’t normally have to be opened if there hadn’t been an accident or injury, the family of the deceased may have to discuss the matter with an estate attorney, as an estate may need to be opened in the probate court, in order to continue the case.

Whether this is worth the time and effort, is something family should discuss with both the injury and probate or estate attorney.

Call the West Palm Beach personal injury attorneys at Pike & Lustig today about how to handle your injuries if there has been a death in your family, caused by the carelessness of someone else.

Sources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/0768.html

floridabar.org/divcom/jn/jnjournal01.nsf/Author/8E0E61F2855F404485256C62006E36CD