Probate Impacts on PI Cases
by:  Steve Spitzer
August 11, 2010

There are several probate requirements that can trap an unwary personal injury attorney.  These most often arise in wrongful death cases, and the most frequently encountered issues are:

Estate Rep as a Party.
An estate is not a legal entity and therefore cannot sue or be sued except through the personal representative of the estate.  The estate executor or administrator, formally appointed by the probate court, must be a party to any suit by or against an estate. Embrey v. Royal Ins. Co., 22 S.W.3d 414, 415 n. 2 (Tex. 2000).

Court Approval for Settlements.
Any settlement involving an estate must be approved in writing by the probate court, even if the personal representative is conducting an independent administration.  In other words, the independent executor or administrator does not have authority to compromise and settle suits, absent probate court approval.  Probate Code § 234 (a) (4).

Court Approval for Contingent Fees.
Contingent fee contracts for the recovery of funds due to an estate require probate court approval.  The percentage for the contingent fee is usually limited to one third, but it can be increased in certain circumstances.  Failure to obtain court approval can result in the fee contract being voided.  Probate Code § 233.

There are other probate issues that can arise in personal injury cases, and the best practice for personal injury attorneys handling claims involving an estate is to consult with a probate specialist to help detect potential problems.

Tags: attorney, cases, death, inury, personal, PI, probate, wrongful