You need to open a probate estate to pursue an accident personal injury claim after someone dies

Marianne: I am calling you regarding my elderly mom. She is bringing suit against a nursing home that she was in for negligence. Due to her failing health, what happens if she passes away during the suit before it ends?

Attorney Tom Olsen: She will still have a lawsuit. However, an executor personal representative will need to be appointed in her estate to continue to pursue that lawsuit. If she happens to win $100,000 from this lawsuit, that $100,000 will go into her estate and will be distributed according to what the terms of her will happen to say. It's not all over with. Certainly the case can continue on. You might want to talk to the attorney pursuing that personal injury case, because he might say, gosh, if she's got some bad health right now, we better take some depositions, maybe some videos to get her testimony down in a permanent form of a record in case we have to pursue it even after she passes away.

Marianne: Okay. I thought I'd call you. I listen to you a lot. We don't meet with them again until July, so I just thought I'd run it by you. Thank you very much. Appreciate it.

Tom: You're very welcome, Marianne. It's similar to-- We get a lot of probate cases where there's been an automobile accident, where somebody passed away at the time of the accident or after the accident. In that situation, again, the estate has to be open, an executor appointed, and that executor pursues this case on behalf of the decedent. It's absolutely critical. There's no way around it. It has to be done that way because at the end of the day, the executor's going to have to negotiate the settlement, and the executor's going to have to negotiate the terms of the final settlement and sign a final release to the other side.

Holley Knapik: To the other side, yes.

Tom: We wish you the best luck on that, Marianne. If this is concerning to you, you definitely want to bring it up to the attorney that's pursuing this case and get his or her recommendation on it.