Assisting With Probate In Wrongful Death Cases

Florida Statute § 768.20, along with applicable case law, states that the only party who can bring forth or settle a case for the wrongful death of a Decedent is a court-appointed Personal Representative of the Decedent’s estate. Thus, the personal injury practitioner should immediately begin the process of establishing an estate for a Decedent. Once the personal representative is appointed by the Judge, that individual or entity is able to bring a suit or settle a wrongful death case on behalf of the estate and the statutory survivors under the wrongful death act.

Common Questions Or Issues:

• Who is the proper personal representative of an estate?

This is a question that involves a fact-specific inquiry into issues involving the last will of the decedent or Florida intestate statutes. However, that person must be over 18, cannot be a convicted felon (unless that felony was pardoned), and may need to meet certain residency requirements depending on their relationship to the decedent.

• How long does probate take?

This is very important in setting proper expectations with your client, which is essential to maintaining happy clients and long-lasting relationships. It is also important in protecting the integrity of our profession. The probate process for wrongful death matters varies in length, but will always include a three-month creditor period if the decedent died within two years of when the probate is filed (which is often the case due to the statute of limitations for wrongful death matters in Florida). Most probate cases last approximately four to five months from the date of appointment of the personal representative but can continue for years if the wrongful death case remains pending in litigation.

• Issues with allocation of net proceeds

Mistakes are often made when dispersing assets in a wrongful death case. First and foremost, who you allocate net proceeds to depends on the damages you have claimed. Aside from damages for statutory survivors, the personal injury practitioner needs to determine whether the estate itself is entitled to damages under Florida Statute § 768.21(6) or other applicable Florida law.

• Notice and Court Approval

There are specific instances in which your wrongful death case cannot be consummated without the approval of a circuit court. Florida Statute § 768.25 states that no settlement as to amount or apportionment of proceeds shall be effective if there is a survivor who is a minor or incompetent, or if the entire settlement is not agreed to by all statutory survivors and beneficiaries. Many probate courts are now holding that if the estate has interested parties (beneficiaries or creditors) that are not in agreement with the settlement and allocation of the wrongful death claim, then they are entitled to notice and an opportunity to object (thus requiring Court approval).

It is crucial to REMEMBER that an estate beneficiary under probate law and a statutory survivor under the wrongful death act are NOT the same things; an estate could have a beneficiary that is not a statutory survivor or there could be statutory survivors under the wrongful death act who are not beneficiaries of the estate.

If you have questions or inquiries, contact us today to speak with one of our attorneys about your specific case needs! 904-527-1700

Mr. Hinson has presented this one-hour CLE to various plaintiff’s attorney organizations. For information about Matthew H. Hinson, Esq.’s CLE entitled “Probate for the Personal Injury Practitioner” see the link below. 

• Continuing Legal Education Class – Probate for the Personal Injury Practitioner