In the legal world, seemingly distinct fields of practice often overlap, creating a need for professionals who understand the intricacies of multiple areas of law. One such example is the intersection of personal injury law and probate matters, a topic that may seem unconventional at first glance. In this blog post, we delve into the reasons why a personal injury lawyer might find themselves navigating the complex waters of probate law.
With over four decades of legal experience, our aim is to shed light on the vital connections between personal injury cases and probate, dispelling misconceptions along the way. From the obligation to open estates in wrongful death claims to the often-misunderstood role of “Revocable Trusts,” we’ll explore how these two seemingly disparate realms of law can intersect in ways that clients may not initially grasp. So, let’s dive in and uncover the essential reasons why a personal injury lawyer might find themselves discussing probate matters.
I have been blogging recently about matters involving Durable Powers of Attorney and arbitration agreements. I have been practicing probate matters since early in my 46+ year career. Over the years, I have had to litigate matters in personal injury cases that involve estates and how probate is handled. To be clear, “probate” literally means, according to Black’s Law Dictionary, “The act or process of proving a will”. There has been a plethora of advertising by “Estate Planning Lawyers” or “ElderCare Lawyers” making “Probate” something to be avoided and that they can save you money by providing you with a “Revocable Trust”. In most cases, this is simply not true.
First, in most states, including Indiana and Kentucky, a claim for wrongful death of a loved one must be brought by the personal representative of the estate of the person who has been wrongfully killed. An estate has to be opened regardless of any “revocable or Irrevocable trust”. It’s by statute.
Secondly, often the interests in corporations of LLC’s do not get transferred into the “Revocable Trust”. I presently have a case in litigation over a business dispute where my client, the owner of a majority share of the interest in a corporation, did not transfer his stock into the trust. We have to open an estate to have his wife appointed to prosecute the claim. Frankly, in my opinion, they didn’t need a “Revocable Trust”. The probate fees will costs significantly less than what was paid for something they didn’t need.
The reality is that litigation has become so specialized and “probate” has become a misnomer that clients are confused. The lawyers this practice specialties like “ElderCare Law” or “Estate Planning Law don’t litigate. Be aware of the background who is advising you.
In the legal landscape, understanding the nuances of different practice areas is crucial, and the overlap between personal injury and probate matters serves as an exemplary case in point. As we’ve discussed, the obligation to navigate probate procedures can be an integral part of pursuing a wrongful death claim, irrespective of trust arrangements. Additionally, the complexities of business interests, such as shares in corporations or LLCs, can often catch clients off guard, leading to unexpected probate procedures.
In conclusion, the confluence of personal injury law and probate matters is a testament to the intricate nature of the legal field. Clients must be aware of the backgrounds and expertise of the professionals advising them, as specialization within the legal realm can lead to confusion. So, the next time you find yourself in need of legal counsel, remember that in the world of law, there are often unexpected connections, and a seasoned lawyer’s guidance can make all the difference in navigating these intricate paths.
