Probate is the field of law that determines how an estate must be divided. Each state has its own laws and statutes requirements to determine if and how an estate must be probated. The probate court will supervise the process when a deceased person (a decedent) leaves assets to distribute, such as bank accounts, real estate, and financial investments with or without a will. The probate court provides the final ruling on the division and distribution of assets to beneficiaries.

In many cases, the decedent has established documentation, which contains instructions on how their assets should be distributed after death and designates in such documents who oversees implementing this process.  This involves collecting the deceased’s assets to pay any remaining liabilities on their estate and distributing the assets to beneficiaries. Where a decedent fails to establish such documents while alive, State law and the probate courts will dictate how the estate is administered and to whom assets get distributed to.

Probate With a Will 

A deceased person with a Will is known as a testator and he or she is deemed to have died “testate.” When a testator dies, the person designated as the executor under the Will is responsible for initiating the probate process. The probate process for a testate estate includes distributing the decedent’s assets according to the Will.

Probate Without a Will 

When a person dies without a Will, a person is to have died intestate. An intestate estate can also occur when a written Will is presented to the probate court and the probate court has been deemed the Will to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to State law.

What Is The Probate Process?

A probate court proceeding begins with the appointment of an administrator or executor to oversee the estate of the deceased person. Such personal is typically called the “personal representative.”  The personal representative receives all legal claims against the estate and paying off the outstanding debts. Also, the personal representative is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. Then the probate court will assess what assets need to be distributed among the legal heirs and how to distribute them.

The probate process can take a long time to finalize and can become costly, therefore it is important to know whether a probate is required following the death of an individual. The more complex or contested the estate is the more time it will take to settle and distribute the assets. Furthermore, the proceedings of probate court are publicly recorded so avoiding probate would ensure that all settlements are done privately.

Note though that having a Will does not mean that probate is avoided, it just serves a roadmap for the probate court.

With the proper planning while during a person’s life, the need for probate can be avoided.  But what happens if someone dies while a lawsuit is pending or if a lawsuit needs to be brought on behalf of decedent?

Personal Injury Lawsuit

A personal injury case does not die with the person who is injured. However, a person’s death does change the parties to the case given that the injured person’s personal representative takes over for the decedent as the plaintiff, but, it does not change the fact that this person suffered injuries and damages as a result of the at-fault motorist’s actions. Thus, the decedent’s estate can still receive compensation for the injuries and damages suffered by that person prior to her death as a result of someone else’s negligence.

If a plaintiff files a personal injury lawsuit against an at-fault party and then dies for reasons unrelated to their case the plaintiff’s surviving family members would have grounds for a survival action on behalf of the deceased. If successful, they could recover compensation for losses incurred up to the plaintiff’s death. However, the estate would not have grounds for a wrongful death lawsuit in this case. Depending on the state a survival action is a legal process that allows another person to begin or continue an injury claim on behalf of a deceased victim. When someone files a survival action, they essentially act as a substitute for the deceased, and any money they recover will go to the deceased person’s estate.

Furthermore, if the at-fault person passes away before the plaintiff’s personal injury lawsuit has concluded it is still possible to get compensation from the at-fault deceased person’s estate. However, a plaintiff will need to go through the probate process to get money from the estate and become a creditor.

Wrongful death claim

In contrast to a personal injury lawsuit with a decedent, a wrongful death claim allows certain eligible survivors to seek compensation for the losses they incur as a result of their loved one’s death. These losses include medical costs, funeral expenses, loss of the deceased future income and financial support, loss of companionship, loss of emotional support from the deceased, and burial expenses. California’s wrongful death law outlined in the statute Code of Civil Procedure 377.60  allows surviving family members or the estate to sue for damages when a person dies as the result of someone else’s wrongful act- whether the act was negligent, reckless, or intentional.

Medical Malpractice

Different states have different laws that govern who is eligible to bring a wrongful death action on behalf of a loved one who died from a medical error or a doctor’s negligence. Some states only allow a surviving spouse or a child under age 25 to sue for medical malpractice damages, whereas some states give a broader reach to various family members of the decedent. In California the statute of limitations for medical malpractice suit is typically three years.

Every state is different, but generally, there are two types of lawsuits you may file on behalf of a loved one who died due to medical malpractice: a wrongful death action and a survivor action. Since each type of lawsuit entitles you to a different set of damages, many plaintiffs file both.

• Wrongful death claim

In contrast to a personal injury lawsuit with a decedent, a wrongful death claim allows certain eligible survivors to seek compensation for the losses they incur as a result of their loved one’s death. These losses include medical costs, funeral expenses, loss of the deceased future income and financial support, loss of companionship, loss of emotional support from the deceased, and burial expenses.

• Survivor Lawsuit

A survivor lawsuit is filed because if the survivor had lived, they would have been eligible to file a claim for damages against the negligent doctor or healthcare provider. It refers to the principle that the deceased’s right to sue survives their death. The damages recoverable in a survivor lawsuit include, pain and suffering, emotional anguish, fear, anxiety, and humiliation, grief, and loss of enjoyment of life.

Loss of Chance Doctrine

Depending on the state a wrongful death or survivor lawsuit may be brought if the decedent was suffering from a terminal illness or injury and may have died from medical malpractice, even if they had a low chance of survival. Some states have the loss of chance doctrine. This doctrine may allow the decedent’s loved ones to sue if a doctor’s actions or inactions took away a legitimate chance at the decedent’s survival, even if the chance of survival was small. Since California is a comparative negligence state, it does not follow the “last clear chance” doctrine. California allows you to recover damages even if you are primarily responsible for your injuries. However, your damages will be reduced by your own degree of fault.

Civil Lawsuit

If plaintiff or defendant in a civil lawsuit dies before the case is settled, the court will usually put the lawsuit on a temporary hold whereby a “Suggestion Of Death” is filed with the Court. This hold is intended to give the probate court the time it needs to appoint a personal representative for the deceased plaintiff’s estate or for the defendant’s estate. As soon as a personal representative is appointed, the personal representative can continue with the civil lawsuit.

What Should You Do?

Don’t let the death of a loved one freeze or prevent lawsuits from moving forward and thus delay the compensation you deserve.  The probate process can be expensive and complex especially during a time of grief. That is why you should reach out to a Trusts and Estates and/or Probate Attorney such as the attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. . We are always thinking of ways that our clients can save on taxes, trusts and estates planning, and probate matters. Whether or not a will or trust exists, the expertise of a skilled lawyer at the  Law Offices Of Jeffrey B. Kahn, P.C. is needed to help protect the interests of the parties involved. The tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), Los Angeles and elsewhere in California are highly skilled in handling tax and probate matters and can effectively represent at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, and unreported foreign income. Also, if you are involved in cannabis, check out what our cannabis tax attorney can do for you. Additionally, if you are involved in cryptocurrency, check out what a bitcoin tax attorney can do for you.