[WSBAPT] Wrongful death and survival action

[Andrekita Silva]

  Law Office of
F.ANDREKITA SILVA
________________________________________________________________________
 
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                               November 17, 2020          

Philip,

Thank you for your comments, 

In our case,  we initially sued under the survival statute because  
there were no beneficiaries that qualified under the wrongful death  
statute.

In late July 2019, the wrongful death statute was amended and gave the  
parents a right of action for wrongful death. 

We never actually amended the pleadings because we eventually we  
settled and didn't need to.

However, we put all parties on notice that the parents were seeking  
damages pursuant to the wrongful death statute, and all defendants did  
extensive discovery on that issue. 
So, it wasn't a last minute change.  But, the settlement didn't say  
what the settlement was for -  compensation to deceased for lost  
earnings, compensation to deceased for pain and suffering,  
compensation to beneficiaries for   xyz   etc.

Can I distribute net proceeds to the Estate ?  For PR to distribute to  
beneficiaries?   

 

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com

Quoting "Philip N. Jones" <pjones at duffykekel.com>:

> I suggest that you go back to the original cause of  
> action/complaint, and see what you were suing for.  If it was a  
> combination of wrongful death and survivorship (pain and suffering),  
> then it will be difficult to now take the position that it is now  
> 100% one or the other.  The IRS is not very friendly towards people  
> who change their tune in order to reduce the taxes. 
>
>     
>
>    On the tax side, are you referring to income taxes or estate  
> taxes?  You need to examine both and be certain of your conclusion.   
> It is my recollection that survivorship proceeds are subject to  
> estate tax, but wrongful death proceeds are not.  But check for  
> yourself.  And look into the income taxes.  My hunch is that no  
> income taxes are owed, but check for yourself to make certain.
>
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>    I express no opinion on your other questions.  Find someone who  
> does lots of wrongful death.
>
>     
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>    Phil Jones
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>     Philip N. Jones
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>      
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>     Duffy Kekel LLP
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>      
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>     900 S.W. Fifth Ave. Suite 2500
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>      
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>     Portland, OR 97204
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>      
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>     pjones at duffykekel.com
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>      
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>     (503) 226-1371 – office
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>     (503) 853-1482 – cell
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>      
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>     (503) 226-3574 - fax
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Andrekita Silva
> SENT: Tuesday, November 17, 2020 4:25 PM
> TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> SUBJECT: Re: [WSBAPT] Testamentary Trust
>
>       
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>     
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>    Law Office of
> F.ANDREKITA SILVA
> ________________________________________________________________________
>  
> .                                                        
>                                November 17, 2020
>
> List serve,
>
>                  I understand that the proceeds from a wrongful  
> death action do not belong to the estate, rather to the  
> beneficiaries (thank you to Eric Nelsen for a really great summary  
> on this issue earlier this year). I also understand the proceeds  
> from a survival action are more of a muddle. I know there are no  
> taxes for pain and suffering experienced by the decedent for a  
> physical injury.
>                  I’d like to close the probate with a Declaration of  
> Completion. Without the survival/ wrongful death action, the estate  
> had extremely modest assets and we settled with all creditors. But,  
> the Declaration of Completion must say all U.S. and Washington  
> estate tax due as a result of Decedent's death have been determined,  
> settled, and paid.
>                So, if we decide that settlement proceeds are for  
> pain and suffering of the decedent, can I assume that this statement  
> about taxes applies to only the Estate?   This has nothing to do  
> with any taxes that the beneficiary might owe in their own U.S.  
> state or foreign country?
>                The proceeds from the survival/ wrongful death action  
> are in my trust account.  I would prefer to pay the net proceeds to  
> the personal representative for HER to distribute to the  
> beneficiaries (herself and her brother.) They are in agreement as to  
> how much they will each receive.  My main concern is to avoid  
> liability for myself if there is a tax issue down the line.  Is this  
> okay to do?
>  
> andrekita
> Law Office of F. Andrekita Silva
> 1325 Fourth Avenue, Suite 2000
> Seattle, Washington 98101
> 206-224-8288
> www.seattle-silvalaw.com[1]
>  
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>     


 


Links:
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[1] http://www.seattle-silvalaw.com

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