Wrongful death claims in Florida always require a probate administration. This is true whether it’s because of accident or medical malpractice. Florida’s Wrongful Death Act requires a wrongful death action be brought by the personal representative, or executor, of the decedent.
When probating a wrongful death claim, it’s important to use a firm familiar with this type of administration. There are unique requirements in probating a wrongful death claim. Firms unfamiliar with these requirements could jeopardize the claim or delay its settlement.
Wrongful death actions are a significant part of our probate practice. Wrongful death is also a factor in our estate planning. A wrongful death claim is an asset of a person’s estate that is rarely anticipated. As an estate planning and probate law firm, we are aware of and it is our responsibility to plan for this possibility. That’s one reason why we use pour-over wills with trusts.
Trusts are a common tool used to avoid probate. The key to a trust avoiding probate is that all assets are held by the trust or otherwise pass outside of probate. A wrongful death claim, by its nature, can’t be held in trust and requires a probate. Which is at least one reason a will must always be used together with a trust.
One of the saddest cases I ever handled, was the death of a young man on a motorcycle. He had been separated from his estranged wife for several years, and was engaged to marry another woman with two young children. By all accounts, he loved her children who he had all but adopted. Because the divorce was not final, and he had not updated his estate plan, his estranged wife inherited everything including his wrongful death claim. His fiancée and her children were entitled to nothing including remaining in his house. They were forced to move out, and left with nothing after relying on him for support. They even had to turn over his personal affects. With proper planning, his estranged wife would have only been entitled to a fraction of his estate.
No one ever wants their estate to include a wrongful death claim, but they do happen. Not planning for the possibility can leave your family and those that rely on you in a very difficult position. Contact us for a free consultation on how to protect those that love and rely on you.
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