Probate for Personal Injury

Attorney Troy Flake - Probate for Personal Injury

Frequently Asked Questions

Probate & Personal Injury in Nevada

When a person dies as the result of someone else’s negligence, resolving the personal injury claim almost always requires some involvement from the probate court. Below are the questions we hear most often from families, co-counsel, and referring attorneys navigating the intersection of personal injury and probate in Nevada.

Do you have to open a probate to resolve a personal injury claim for a deceased person?

It depends. Nevada law provides a simplified procedure—an affidavit of entitlement under NRS 146.080—that may allow certain claims to be resolved without opening a full probate. The affidavit is available when the net recovery to the claimant is $25,000 or less, or $150,000 or less if the claimant is the surviving spouse of the decedent. However, the affidavit has very specific requirements, and some insurers will require a probate regardless. For most wrongful death and survival claims of any meaningful size, a probate will be necessary.

What effect does a will have on a personal injury settlement?

Less than most people expect. A will can appoint an executor who, once granted letters testamentary by the probate court, has authority to administer the estate and resolve the personal injury claim. The will may also determine how the estate’s share of the recovery is ultimately distributed. But a will does not automatically give anyone authority to compromise or accept a personal injury settlement on behalf of a deceased person. Probate court approval and supervision are still required.

What about a trust? Can a trustee handle the personal injury claim?

No. While many assets can be held in a trust during a person’s lifetime, a personal injury cause of action belonging to a deceased person cannot be pursued by a trustee. Nevada’s statutes vest the survival cause of action in the personal representative of the estate under NRS 41.100, not the trustee of a trust. Similarly, a wrongful death action under NRS 41.085 belongs to the intestate heirs and the estate of the decedent—a trust has no statutory capacity to recover for the wrongful death of its grantor.

If the decedent’s only significant asset is the personal injury claim, the settlement proceeds will become an asset of the estate and will be administered through probate. However, the personal representative has a fiduciary duty to collect and administer all of the decedent’s assets, not just the personal injury proceeds. If there are other assets subject to administration, the personal representative must address those as well.

Can the personal representative settle the personal injury claim without everyone agreeing?

The short answer is yes. The personal representative has authority to compromise the estate’s claims, subject to court approval. All interested parties are entitled to notice and an opportunity to be heard by the probate court, but the personal representative does not need the specific consent of every interested party to move forward with a settlement.

What if an heir refuses to sign off on the settlement?

It depends on the type of claim. In a survival action under NRS 41.100, the heirs do not have a direct claim against the party at fault—only the estate does. The heirs are not required to sign off on the settlement.

In a wrongful death case, the heirs are also not legally required to consent to the settlement in order for it to go forward. However, as a practical matter, the insurance company or liable party will typically require a release from all heirs and the estate in order to cut off future liability. Nevada law does not require the consent of all heirs for some heirs to resolve their claims, but obtaining a comprehensive release is standard practice in the industry.

Can one lawyer represent both the estate and the heirs?

Yes, in most cases. One attorney can represent both the estate and the heirs, provided that all parties give informed consent and that no actual conflict of interest exists. In wrongful death cases, there is a natural alignment of interest between the heirs and the estate in maximizing recovery from the tortfeasor.

However, if the heirship of a particular party is disputed, or if the interests of the estate and the heirs diverge, it would be inappropriate for one attorney to represent both sides of that dispute. And it is never appropriate for a personal injury plaintiff’s attorney to represent an estate that is a defendant in the same lawsuit.

What happens when the available insurance proceeds are not enough to fully compensate everyone?

This is unfortunately common. In many wrongful death cases, the available insurance proceeds are significantly less than what the heirs and the estate could potentially recover if there were unlimited assets from which to satisfy a judgment. When a family member has been tragically killed and the heirs are forced to accept a minimal policy, it is a difficult situation. Typically, the probate court will approve a pro rata apportionment—an equitable division of the available proceeds among the heirs and the estate.

Are probate fees separate from the personal injury attorney’s fees?

Yes. A probate is a separate case from the personal injury case. It requires a separate filing, a personal representative who has fiduciary obligations to the estate, and specialized legal knowledge. Most personal injury attorneys do not handle probate, and probate work is typically billed as a separate engagement with its own fee structure.

It is difficult to determine at the outset exactly what will be required in probate because the decedent’s assets and liabilities are often not fully known in advance.

What expenses should we expect in a probate case?

When the only asset of the estate is the proceeds of a wrongful death or personal injury settlement, costs are typically modest: attorney’s fees, filing fees, fees for mailing and publication of required notices, and fees for tax clearance and related administrative responsibilities.

In cases where there are additional assets subject to administration beyond the personal injury proceeds, you should expect more significant costs, which may include real estate broker fees, property management expenses, insurance premiums, and other transaction costs associated with administering a more complex estate.

How is a wrongful death settlement allocated under Nevada law?

When a person dies due to the negligence of another, the claim splits into two separate components under Nevada law.

The first, under NRS 41.085(4), is a claim by the intestate heirs of the decedent—the people who would inherit if the decedent died without a will. Typically, this means the surviving spouse, children, or close family members. The heirs may recover for their own grief and sorrow, loss of companionship, society, comfort, and consortium, and loss of future financial support. Nevada also allows the heirs to recover for the pain, suffering, and disfigurement experienced by the decedent before death—a right that many other states do not recognize.

The second component, under NRS 41.085(5), is a claim belonging to the decedent’s estate. The estate may recover funeral expenses, special damages (typically medical expenses, property damage, and in some cases lost wages between the date of injury and the date of death), and punitive damages.

The probate court is required to allocate the settlement between the heirs and the estate. This matters for several important reasons. Under NRS 41.085(4), money allocated to the heirs is not subject to the decedent’s creditor claims. Money allocated to the estate under NRS 41.085(5) is subject to creditor claims. Additionally, if the decedent died with a will, the persons who take through the will (devisees) are not necessarily the same people who are entitled to recover as intestate heirs under the wrongful death statute.

Can the allocation between the heirs and the estate be negotiated as part of the settlement?

Yes. The settling parties may agree to categorize certain damages as those going to the heirs and those going to the estate. However, the probate court retains authority to approve this allocation. The court’s oversight protects interested parties—including devisees under a will and creditors of the estate—from an allocation that unfairly prejudices their interests.

It is worth noting that nothing requires a survival claim to be brought on behalf of the estate. However, as a practical matter, an insurance company will typically refuse to provide a release unless it covers the estate’s claims as well.

What happens if one of the heirs is a minor?

In a wrongful death case, if one of the heirs is a minor, the resolution of the minor’s claim is subject to two layers of court approval: first, the probate court must approve the allocation between the heirs and the estate; second, the minor’s individual share is subject to approval of a minor’s compromise under NRS 41.200.

Typically, the parties will seek probate court approval of the allocation first, contingent upon subsequent approval of the minor’s compromise.

In a survival claim under NRS 41.100, the minor has no direct claim against the tortfeasor—the minor’s interest is only as an heir of the estate. In that situation, no separate minor’s compromise is required.

If the court approves it and the statutory conditions are met, the minor’s share may be delivered to a custodial parent or guardian. However, if the minor’s inheritance exceeds certain thresholds or if the court deems it appropriate, the funds must be placed in a blocked account under Nevada’s Uniform Transfers to Minors Act, where they remain until the minor reaches the age of majority.

Does Medicaid have a lien in wrongful death cases?

Nevada’s Medicaid estate recovery program generally permits the state to recover from the estate of a deceased Medicaid recipient for services rendered during that person’s lifetime. However, Medicaid cannot recover from the portion of a wrongful death settlement allocated to the heirs under NRS 41.085(4). It can recover from the portion allocated to the estate—that is, from special damages, funeral expenses, and punitive damages.

In a survival claim under NRS 41.100, the entire recovery flows through the estate and is subject to Medicaid’s claim consistent with its priority under the probate code.

What about medical liens?

If a deceased person received medical treatment on a lien, the personal injury firm will typically negotiate a reduction of those liens, and the liens are satisfied before the net personal injury proceeds are transferred into the estate for administration. Under the probate code, these consensual liens are encumbrances on the assets that reduce the value of what comes into the estate.

Non-consensual liens or subrogation rights may be treated as claims against the estate and are subject to the creditor claims procedures of the probate statutes.

What if the decedent died in a different state?

Nevada’s probate courts must have jurisdiction over either the decedent or the decedent’s assets. If a person was injured in Nevada but died out of state, the pending cause of action here may provide a basis for the Nevada probate court to exercise jurisdiction over the estate. However, the court will require a showing of jurisdiction. The fact that family members live in Nevada, or that the personal injury attorney handling the case is a Nevada attorney, is not by itself sufficient to establish probate jurisdiction. Either the decedent must have been a Nevada resident, the cause of action must be pending here, or there must be other assets located in Nevada that are subject to administration.

Can a Nevada personal representative pursue a claim in another state?

Generally, yes. A personal representative appointed by a Nevada probate court can pursue causes of action in other jurisdictions on behalf of the estate. However, some states require the personal representative to qualify or register in the jurisdiction where the claim is being pursued. The procedural requirements vary by state, and it is important to confirm compliance with both the forum state’s rules and any applicable statutes governing foreign personal representatives.

Related Resources

Disclaimer: This information is provided for general educational purposes and does not constitute legal advice. Every case involves unique facts and circumstances. If you have questions about a specific probate or personal injury matter, please contact our office for a consultation.