Wrongful Death Versus Probate: Differences
As an Orlando death attorney, one common question from my clients is whether they also need a probate attorney. Many do not understand the difference between a wrongful death lawsuit, on the one hand, and a probate action, on the other.
Let me briefly explain.
What Is A Wrongful Death Case?
A wrongful death lawsuit is typically filed by survivors of the person who died. These cases can be based on a number of negligent actions of others, such as a shooting death (which leads to a possible negligent security claim against the property owner where the shooting took place), auto accident death (obviously caused by negligent drivers, and typically limited to the amount of all available insurance policies), medical malpractice (when a medical provider’s negligence caused death), swimming pool drowning death (often a premises liability case), products liability cases (where a defective product caused death), and similar cases. There are many different scenarios that might lead to a valid claim for survivors under Florida’s wrongful death statute.
If there are grounds for a wrongful death lawsuit, then, on behalf of survivors, a wrongful death lawyer would be pursuing a lawsuit to prove that someone else was negligent, and that caused the death of their loved one.
What Is A Probate Case?
In contrast, a probate lawyer only deals with Florida’s probate laws. Those are the laws that apply whenever anyone dies, and they determine how the person’s estate is distributed. For example, there are many laws governing the requirements for wills and trusts (such as the requirement that there be two witnesses to every will, for example). There are also laws called “intestacy statutes,” which govern the distribution of an estate whenever there is no will, or trust. The intestacy statutes determine which survivors get what portion of a decedent’s estate.
But, the important point to understand is that probate applies ANYTIME ANYONE dies, with or without a will. Basically probate laws determine the distribution of an estate, even when death was caused naturally. By contrast, a wrongful death lawyer is needed when someone’s negligence caused death, for example, if a negligent driver caused the death of another in an auto accident.
If Someone Dies, Do You Need A Wrongful Death Lawyer, Or A Probate Lawyer?
IF you believe that negligence might have caused the death of your loved one, then you need a wrongful death lawyer. When negligence caused death, a wrongful death lawyer always needs a probate lawyer, and vice versa. Anytime we accept a new wrongful death case, we hire a probate lawyer for our client (unless our client already has their own probate lawyer). We then work hand-in-hand with the probate lawyer, to ensure that the probate part of the case is handled properly (which involves approval of any distributions by the probate judge).
But understand: the probate lawyer is not involved in pursuing the monetary damages available as a result of the negligence of a wrongdoer who caused death. Wrongful death lawyers have that job.
Wrongful Death From Auto Accident: An Example
Let me give you a simple example.
One of my clients called me after tragically losing a loved one after an auto accident. My job was to fully investigate the cause of the auto accident, prove that the defendant driver caused the accident, and recover any available insurance proceeds or defendant assets. Once I fully recover the damages for the auto accident (which usually is capped at the amount of insurance proceeds), then I send the check to the probate lawyer, who distributes the proceeds to the estate, in accordance with Florida’s probate laws.
Should All Wrongful Death Survivors Have The Same Lawyer?
Incidentally, if there are multiple survivors, the best scenario includes all survivors having the same wrongful death lawyer (as long as they have no conflict, which usually means they can agree how to divide the recovery before hiring the wrongful death lawyer). This is important because usually the probate lawyer will want to know how the parties want to divide the estate proceeds. This is also important because, unless all survivors agree, there can be a long and expensive battle between the survivors regarding who deserves what amount of money.
Who Hires The Wrongful Death Lawyer?
Ideally, everyone who is a “survivor” under Florida’s wrongful death statute should hire the wrongful death lawyer. For example, if a husband lost his wife, but she had children from a previous marriage, ideally the father, on behalf of the children, would hire the same lawyer, assuming there is no conflict of interest between the three people, which generally means assuming the three people can agree how to divide the proceeds of any lawsuit verdict or settlement.
If everyone cannot agree on the same wrongful death lawyer, the case can get messy to the point where no one gets good or any representation (that varies a LOT depending on the facts of the case, and the relationships involved).
Anyway, the person who actually files the lawsuit is the “personal representative” of the estate (usually the spouse, if there is one, or closest relative, or person appointed by will). The personal representative can be appointed by will, or, if there is no will, a judge can appoint a personal representative. That person actually pursues the wrongful death damages on behalf of ALL survivors.
In the example above, let’s say the former spouse becomes the personal representative. He would pursue the lawsuit for ALL of the people entitled to recover, and the proceeds would be divided between all of the survivors, based on their agreement. (If children are among the survivors, and the recovery exceeds a certain monetary threshold (currently greater than $15,000), then a guardian ad litem is appointed to review the fairness of the award to the child, and judges carefully review the guardian ad litem report.)
If YOU believe that you might have a wrongful death case, but aren’t sure whether you are the proper survivor to pursue the case, please give me a call. I will ask you about the facts of your situation, and tell you who can pursue what damages.
Who Is A Survivor Under Florida’s Wrongful Death Statute?
This varies depending on the cause of death.
In general, medical malpractice cases have a very limited group of survivors; other types of death cases include slightly more relatives who are entitled to recover. You can read more about which survivors can recover what damages here. Generally, for medical malpractice, only spouses and children under 25 can recover (or, if a child died, parents can recover for children under 25).
There is a very narrow exception to this rule — specifically, if a blood relative was totally (100%) dependent on someone who died, then they might be able to pursue a case. (This is further limited in medical malpractice cases — where only the parents can recover for the death of a child over 25, and, as a practical matter, medical malpractice lawyers will ONLY pursue these claims in the extremely limited situations where the parents were totally (100%) dependent on their child for financial support, and all life services (like 100% care-giving). So this “support and services” exception only applies to an exceptionally small percentage of cases.
For most medical malpractice wrongful death lawyers, as a practical matter, this “total dependence” means total — as in the person was incapable of working and supporting themselves, like an elderly parent with downs syndrome. (Note the wrongful death statute technically allows recovery when there is partial dependence, but other aspects of the medical malpractice cases make those cases cost-prohibitive to pursue.)
For wrongful death cases OTHER THAN medical malpractice (like auto accidents, or shooting death / negligent security cases), there is a broader class of survivors, but still limited. In those situations, a parent can pursue recovery for the loss of a child, and vice versa.
Do All Survivors Need Probate Lawyers?
Again, if negligence was possibly a factor in the death, then all survivors need a wrongful death lawyer, who then hires the probate lawyer. In most cases, the probate lawyer plays a very small role in the case. While the wrongful death lawyer must pursue the lawsuit to prove the negligence (like prove the negligent security), the probate lawyer only has to have the division of the proceeds approved by the probate judge, in accordance with the will, or Florida’s intestacy statute. Those are very different jobs, but the probate and wrongful death lawyers do work hand-in-hand.
If you lost a loved one in a way that you feel was caused by the negligence of another person, please call me today for your free consultation. There are never any costs or fees, until we recover money for you.
You can reach Orlando wrongful death lawyer Tina Willis, usually pretty quickly, by calling or texting (407) 383-7290.