Experiencing a car accident can be a very scary life event. The unexpected impact and resulting injuries can be physically and emotionally damaging. In the aftermath, the financial cost can feel overwhelming. When the accident was not your fault, there are legal actions that you can take to seek compensation. You may be entitled to reparation for damages such as medical bills, lost income and pain and suffering. In the event that the negligent party is deceased, the process is a bit more complicated. The following information explores the role of probate court in a personal injury lawsuit.
Who do you file the claim against?
This is an important question as the party with whom the claim is against is no longer alive. The personal injury claim will be filed against the estate through the probate court.
What do you need to prove?
In order to have a viable personal injury lawsuit, one must be able to prove negligence on the part of the other party. In order to prove negligence, one must be able to show a duty of care was breached and injury was the result. In car accidents, the duty would likely be traffic laws. If the other driver was driving while under the influence of alcohol and/or speeding (breaching the duty of care to other drivers) and hit another car causing injury, there is likely a case of negligence.
How much time do you have to sue?
In most personal injury cases, the injured party has two to three years to make the claim. However, when the defendant is deceased, the time frame is considerably shorter. The personal injury claim should be filed as soon as possible, so that the probate court is aware prior to the estate “closing”.
What damages should I pursue?
The typical damages that are associated with personal injury cases are:
- Medical bills- this should include the ambulance ride, emergency room visit, doctor bills, diagnostic charges (i.e., X-rays, Cat scans, and MRI’s), rehabilitative therapies (i.e., physical therapy, and occupational therapy), and mental health appointments to process the trauma.
- Medical supplies- bandages, ice packs, heating pads, crutches, braces, etc.
- Property damage- vehicle, bicycle, etc.
- Loss of wages
- Pain and suffering
How does the probate judge determine debt priority?
When it comes to car accident injury and damages, the insurance policy will be reviewed and the insurance company will be expected to fulfill the claim. If the amount of compensation exceeds the amount the insurance company can be expected to pay, the probate judge will need to prioritize the debts against the decedent’s estate. The judge will determine how much, if any, damage compensation will come out of the estate.
Do I need an attorney?
Personal injury claims, in general, can be difficult to prove. When the situation is further complicated by the accused party’s death, a personal injury attorney is highly recommended. Many offer a free consultation where they will review your case and then advise you on the next step. It is a good idea to seek the advice and guidance of an attorney who understands the process and will help you become better prepared for the fight ahead.