When someone is a plaintiff to a personal injury lawsuit i.e., the person who seeks a remedy for an injury or damages, such as a car accident victim, the plaintiff can sue the party who caused the injury to pay for damages related to the negligence. Such damages might include: (i) pain and suffering, (ii) medical bills, (iii) loss of income, and/or (iv) property damage.
It is up to the plaintiff to decide whether or not to settle a case, but if that injured party dies due to those injuries, that action ends and a new type of lawsuit must be brought, called a wrongful death action. Florida’s Wrongful Death Act (F.S. §768.16 – 768.26) specifies that the only party with the authority to bring a wrongful death action on behalf of the decedent’s survivors is the decedent’s personal representative. If you need a wrongful death attorney in Orlando visit Frank Eidson as he can help.
Wrongful death claims in Florida always require probate administration. This is true regardless of how the injury occurred. Florida law specifies that the personal representative becomes the party who has the legal authority sue on the deceased’s behalf. The damages recovered in this portion of the suit will then go to the estate. The personal representative may sue for unpaid medical expenses, unpaid funeral expenses, as well as loss of income of the deceased. However, Florida statute does not allow the personal representative to sue for the deceased’s pain and suffering that occurred from the date of injury to the date of death.
Last Will and Testament and Wrongful Death
Two key points arise with estate planning and wrongful death. When you name a personal representative (called the executor or executrix in other states) in your will, you are also naming whom you trust to carry forward with this sort of lawsuit if one were to arise. This can be a big responsibility and in fact, could be a bigger job than you initially anticipated thus, as always, there should be careful consideration when choosing who to act in this role.
Second, consider too the problems if you do not have any estate planning. First, you will not have named who you would have liked to initiate the proceeding. This may lead to needless potential misunderstandings and disorder among family members deciding who will bring the action. That is why we at Finity Law Firm recommend having the proper estate planning completed.
Wrongful Death and Estate Planning
Unfortunately, even the best estate planning will cause probate for initiate a wrongful death proceeding. This is because a wrongful death settlement, by its nature, cannot directly be held in trust and thus, will require a probate. Therefore, Finity Law believes it is important that you have a pour-over Will to accompany your trust to then transfer those probate assets to your Trust at the close of the probate administration. A wrongful death claim is obviously an asset of a person’s estate that is rarely anticipated but can have major implication on your estate plan.
We Are Here to Help
If you are thinking of setting up an estate plan but are in the middle of a legal proceeding for personal injuries, working with an estate planning attorney now can make any potential wrinkles much smoother. Not planning for certain possibilities can leave your family in a very difficult position. This uncertainty extends to the way we pass away and thus, having your estate in order with appropriately named fiduciaries, clearly identifying your beneficiaries, and outlining your specific wishes, will almost always mean less problems for your loved ones later. No one ever wants their estate to include a wrongful death claim, but they do happen. If you have unfortunately lost a loved one due to someone else’s negligent or intentional act, our experienced law firm is here to help navigate you through the difficult probate process. Contact the Finity Law Firm for a free consultation on how to protect those that love and rely on you.
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