Personal injury and probate overlap in three situations:
- Your client dies while her claim is pending
- The defendant’s negligence causes a death (wrongful death)
- The defendant dies
Those situations often require a probate. Someone has to open an estate (fast if there is a statute of limitations approaching), find the right person to serve as a personal representative, identify and notify heirs, and get the court to issue letters.
Then you have to run a probate case. Unlike a minor’s compromise, the probate case may involve dealing with many issues, including finding and lodging the will, collecting assets and other property, taxes, and debts.
Finally, when the personal injury case settles, the settlement usually must be approved by the probate court and the funds have to be distributed through the probate case. Probate practice in Clark County has very specific procedures, and getting them wrong can lead to delays or other issues. For example, mailing the wrong document to an heir can add 4 to 6 weeks to your case.
Smart PI attorneys can probably figure out probate. But the smartest ones let us do it for them. You focus on the big win in the injury case, and we handle the probate.
We make the process smooth and keep you informed along the way. Try us once and you’ll never go back to trying to do it yourself. Call (702) 978-8890 to talk through a file.
Why an Injury Claim Ends Up in Probate
In Nevada, a claim does not die with the person who holds it. It may be “maintained by or against the person’s executor or administrator” (NRS 41.100(1)). When the death itself was caused by the defendant, the heirs and the personal representative each have a claim of their own (NRS 41.085(2)). Until the court appoints a personal representative, no one can pursue the estate’s claim, sign for it, or receive the estate’s share of a settlement.
The same problem shows up on the other side. If the at-fault party has died, the claim proceeds against that person’s personal representative (NRS 41.085(2); NRS 41.100(1)). If no one opens an estate, your client has no one to sue.
What We Handle
- Your client’s estate. We petition to have a personal representative appointed, usually a family member, so the estate’s claim can be pursued and settled.
- Estates with nothing in them but the claim. Many of these estates have no other assets. The court can appoint a special administrator when “there may be no assets subject to administration but good cause exists” (NRS 140.010(6)), and a special administrator may “commence, maintain or defend actions and other legal proceedings as a personal representative” (NRS 140.040(2)(a)).
- The at-fault party’s estate. When the only asset is a liability policy, we petition to open the estate and have a special administrator appointed to defend the claim (NRS 140.040(2)(a), (3)(b)).
- Heirship. Identifying the heirs, finding the ones the family has lost track of, and resolving disputes over who qualifies.
- Settlement approval. When the settlement needs court approval, we prepare and file the petition and give notice to the people entitled to it.
- Creditors, Medicaid, and distribution. We give the required notices, including to Medicaid Estate Recovery, deal with creditor claims, distribute the money, and close the estate.
Why the Allocation Matters
How a wrongful death settlement is split between the heirs and the estate has real consequences. Under the wrongful death statute, a judgment for the heirs’ damages is “not liable for any debt of the decedent” (NRS 41.085(4)). A judgment for the estate’s damages, which include medical expenses incurred before death and funeral expenses, is “liable for the debts of the decedent unless exempted by law” (NRS 41.085(5)). Settlements are allocated with that line in mind, because money assigned to the estate can end up with creditors instead of the family. We can work through the allocation with you before it goes into the settlement documents.
How Working With Us Works
- The injury case stays with you. We represent the personal representative in the probate case. We do not take over the claim.
- Our fees are separate from yours. Probate attorney’s fees are usually paid from the estate or as a case cost and are subject to court approval (NRS 150.060). They do not come out of your fee.
- We plan around your deadlines. Tell us what is coming: a limitations date, a mediation, a policy-limits offer with an expiration date. We will schedule the probate filings with those dates in mind.
- You will know where things stand. We tell you when the petition is filed, when the hearing is set, and when letters issue.
We Have Been on Your Side of the Table
Troy Flake has handled personal injury cases from both sides. As an Assistant U.S. Attorney for more than a decade, he defended the United States in personal injury cases, and he has since represented injured plaintiffs. He knows what a carrier needs to see before it will pay an estate, and why a probate delay can cost you a policy-limits offer. Jordan Flake has nearly 20 years of estate planning, trust administration, and probate experience.
We are not taking new general personal injury cases. When you send us a client’s estate, we are not competing with you for the client.
If the Defendant Is the Federal Government
If the injury involved a federal employee, a VA facility, or federal property, the Federal Tort Claims Act applies and the rules change. We handle those cases too. Read more about federal tort claims.
Common Questions From Referring Attorneys
When should we call you?
As soon as you learn that your client or the at-fault party has died. Getting someone appointed takes time, and the carrier will usually want to see letters before it pays.
Our client had a living trust. Do we still need a probate?
In most cases, yes. The survival claim is brought by the executor or administrator (NRS 41.100(1)), not the trustee. We explain why in our guide to using Nevada probate to resolve a deceased person’s personal injury claim.
Does it have to be a full probate?
Not always. In some circumstances we can avoid probate completely. An estate valued at $150,000 or less may be set aside without administration (NRS 146.070(1)(a)), and special administration is often enough when the claim is the estate’s main asset. We will tell you which one fits.
The family member who should serve lives out of state. Is that a problem?
Usually not. A nonresident can generally be appointed if a Nevada resident or a bank authorized to do business in Nevada serves as co-administrator (NRS 139.010(4)(a)). If the family does not have someone in Nevada, we can help.
Send Us the File
If a client or an at-fault party has died and you are not sure what the estate needs, call us. We’ll tell you if you need a probate, the most cost effective way to get where you need to be, and get you on the right track even if you don’t end up working with us.
Call (702) 978-8890 or contact us online.
