Personal Injury and Probate

By: Shaun M. Serelson, Esq., Partner of Reifkind, Thompson & Rudzinski, LLP

There are several areas where personal injury and probate overlap. Mainly where a death or a minor child are involved in the incident. Whether from a car accident, medical malpractice, trip and fall, food poisoning or other type of wrongful death, any time a personal injury plaintiff dies prior to final settlement and disbursement of the settlement proceeds, an estate must be opened up with the probate court to administer the decedent’s assets, including the proceeds of a personal injury settlement. Likewise, any time that a child under the age of eighteen (18) receives a settlement over a certain sum, a circuit court judge must approve the minor settlement. Furthermore, if the settlement exceeds a higher amount, the attorney for the minor may have to set up a guardianship for the child which is often handled through the probate court.

When the plaintiff dies, whether as a result of a personal injury incident or through other causes during the pendency of a personal injury case, an estate must be opened to administer the settlement proceeds, as well as any other assets the decedent left to the estate. Many times an individual will be awaiting a personal injury settlement when they pass away due to a totally unrelated condition, at which point the plaintiff’s attorney has an ethical obligation to advise the opposing party and their attorney that the plaintiff has passed away. If the family decides to open an estate for the decedent, the personal representative of the estate is authorized to settle the decedent’s claims on behalf of the estate which inherits the cause of action.

Under Florida Law, a parent or guardian is authorized to settle claim of a minor child up under the age of eighteen (18) up to a gross settlement amount $15,000.00. Any gross settlement amount over $15,000.00 is subject to court approval. Similarly, if the net settlement proceeds to the minor child exceed $15,000.00, the court will require that a guardian ad litem be appointed to assist in making the monetary decisions with the settlement proceeds prior to the minor reaching the age of majority. With large settlements, many courts will require that an annuity or trust be set up to provide that the minor receives the settlement proceeds at certain intervals of time like every five or ten years. These are only a few of the ways that personal injury and the probate court system interact with each other.

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