[WSBAPT] Questions regarding wrongful death claims and probate

[Eric Nelsen]

No, you're right--I was being sloppy about terminology. The attorney represents the PR in her/his fiduciary capacity, and not the Estate itself. But the PR's costs of administration are debts of the Estate. I suppose technically as the PR's attorney I could go after the PR individually if the Estate didn't have enough money to pay me, but I just didn't think about that before answering because I never do it.

The proposed indemnity would not be needed if it were the PR client agreeing to pay even if the Estate doesn't have enough assets...though I would want to be explicit with my client that s/he is still obligated to pay costs even if the Estate doesn't have the money.

But what I had in mind for the indemnity, was more the situation where someone who isn't going to be the PR agrees to pay the costs. For example, a statutory beneficiary of the wrongful death claim, who wants the claim to be pursued but isn't going to be the PR. Then, the bene could indemnify the Estate (and the PR individually, maybe?) from the costs, and the RPC disclosure would be needed.

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] On Behalf Of Paul Neumiller
Sent: Wednesday, August 19, 2015 8:55 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Questions regarding wrongful death claims and probate

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> [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<mailto:wsbapt at lists.wsbarppt.com>>; wsbapt at listserv.nethelps.com<mailto: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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