The legal system in the United States allows a victim who has been injured in a personal injury accident to file a lawsuit against the person, or entity, responsible for those injuries in order to recover damages. But what happens if the person who is responsible for your injuries is deceased? This is a question that comes up frequently and one that actually has a fairly simple answer. If the person responsible for your injuries is deceased, you are entitled to pursue compensation for your injuries by suing the decedent’s estate. Although the answer is rather simple, pursuing a lawsuit against someone who is deceased can be complicated and time consuming because of the procedural requirements involved.
Situations where filing a lawsuit against an estate becomes necessary are actually far more common than people realize. Imagine, for example, anaccident scenario involving two vehicles. Imagine that you are obeying the speed limit and approaching an intersection where you have the green light. As you proceed through the intersection, you are broadsided by a vehicle that ran the red light coming from the other direction. You survive the collision but the driver of the other vehicle does not. In this case, you will need to pursue compensation from the deceased driver’s estate.
While the general concept remains the same when you file a lawsuit against an estate, there are some procedural issues that change. Failing to conform to the procedures involved in filing a claim against a decedent’s estate can forever bar you from recovery.
Suing the Estate of a Decedent
A person’s estate can be sued for damages incurred by someone as a result of the negligent actions of the decedent prior to death. When a person dies, his or her assets and debts become part of the legal process known as “probate.” Everything owned by the decedent will be inventoried and valued and all debts of the estate paid before any estate assets are transferred to the intended beneficiaries or heirs of the estate. As the victim of a personal injury accident, you are considered a potential debt, or creditor, of the decedent’s estate.
Protecting Your Claim
When a defendant is alive, a victim has up to the day the statute of limitations expires to file an official lawsuit against the defendant for damages. A typical statute of limitations for a personal injury lawsuit is two to three years. When the defendant is deceased, though, you have considerably less time to assert your claim. In order to preserve your rights to compensation from the estate, you must file a claim with the estate through the probate court.
How Is a Personal Injury Lawsuit Handled through Probate?
Once you have filed a timely claim with the decedent’s estate, you will have preserved your right to compensation for your injuries if you are entitled to compensation. A decision will still need to be made that the decedent was negligent and that you are legally entitled to compensation for that negligence. In some cases, the decedent had insurance in place at the time of the accident that is still obligated to compensate victims in the event the insured was negligent. If that is not the case, or if your damages exceed the amount of insurance coverage available, then assets from the decedent’s estate may be available. The probate court will consider all of the creditor claims that have been filed against the decedent’s estate. Some claims have a higher priority than others. For example, a secured creditor gets priority over an unsecured creditor. The assets of the decedent will be used to pay claims, including yours, against the estate. In some cases, there are not enough assets to pay all of the creditors. In this case, your attorney will make every effort to get as much as possible out of the estate, but it may not be the full amount you are legally entitled to if there are not enough assets to pay all of the claims.
If you have been injured in a New York or New Jersey accident and believe that pursuing compensation through the estate of the defendant will be necessary, contact the New York/New Jersey car accident attorneys at Ginarte Gonzalez & Winograd to find out what legal options you may have. With seven offices conveniently located in the New York/New Jersey metropolitan area, we have an office near you. Contact the firm today by calling 888-446-2783 for your free consultation, or fill out our online contact form.