[WSBAPT] Questions regarding wrongful death claims and probate

[Heather deVrieze]

Corey,

The answer to your first question is YES, you must appoint a Personal Representative for the purpose of pursuing a wrongful death claim, even if no other reason for probate.

The answer to your second question is NO. The Personal Representative is the party, and their authority cannot be delegated by use of a power of attorney. If the son is going to deal with the lawsuit, the son should be appointed as Personal Representative at the request of the mother.

I don’t really know the answer to 3, except if there are no “probate assets” there may be a certain amount of shielding already.

Heather


Heather S. de Vrieze
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Corey Rogers
Sent: Tuesday, August 18, 2015 3:39 PM
To: WSBA <wsbapt at lists.wsbarppt.com>; wsbapt at listserv.nethelps.com
Subject: [WSBAPT] Questions regarding wrongful death claims and probate

Hypothetical client is adult child of deceased father who died as a result of medical malpractice.  Mother is still alive, and mother and father were married at time of death.  The estate is small and consists almost entirely of retirement accounts.  Mother is working to get those assets paid out, but no probate has been opened (it's possible they don't need a probate at all).  However, they do need a PR to handle the wrongful death claim.

Here are the questions I have:

(1) Does the family need to open a probate even if they could otherwise avoid it (i.e. small estate exception) just to get a PR appointed for the wrongful death claim?

(2) If mother is appointed PR, can she delegate the duty of dealing with wrongful death attorney to adult child through a power of attorney once she's appointed PR?

(3) Is the estate of the deceased always on the hook for advanced costs when a med/mal case is handled on contingent fee, or is there a way to wall off the estate from those potential costs if there's no recovery on the med/mal claim?


I appreciate any help with these questions.

Sincerely,

Corey Rogers

--
Corey H. Rogers
Attorney at Law
Findley & Rogers, PLLC
600 N. 36th Street, Suite 207
Seattle, WA 98103

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