[WSBAPT] Questions regarding wrongful death claims and probate

[Paul Neumiller]

I’m confused as to your answer to #3. I thought that an attorney assisted the PR in properly performing the PR’s duties in a probate and that the attorney specifically did not represent the “estate.”  I guess I didn’t realize that the estate was a separate legal entity.  If the attorney represents the “estate” and not the PR, who does the attorney report to?

 

 

 

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Tuesday, August 18, 2015 4:01 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>; wsbapt at listserv.nethelps.com
Subject: Re: [WSBAPT] Questions regarding wrongful death claims and probate

 

1. Yes--Case law is clear that only a PR can pursue a wrongful death claim, per RCW 4.02.010 <http://app.leg.wa.gov/rcw/default.aspx?cite=4.20&full=true#4.20.010> . The statutory beneficiaries have no right to bring a claim themselves--it has to be a PR.

2. Yes, but she also remains responsible on her own fiduciary duty to make decisions. Maybe just have the adult child named as PR instead?

3. The Estate is typically the one to retain the attorney and so is on the hook for costs. But someone else could sign an indemnity to the Estate and agree to pay the costs independently (subject to the law firm's agreement and disclosures under RPCs in situation where the firm gets paid by someone other than the client).

 

Sincerely,

 

Eric

 

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

 

 

 

From: wsbapt-bounces at lists.wsbarppt.com <mailto: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 listserv.nethelps.com <mailto: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

T: (206) 331-7377
F: (206) 486-9930
corey at findleyrogerslaw.com <mailto:corey at findleyrogerslaw.com> 

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