On demand 1h 1m 17s Basic

Intersection of Personal Injury & Estates

Start your free 7-day trial
* Claim credit(s) for one free course during your 7-day trial.
  • Credit information
  • Related courses

Intersection of Personal Injury & Estates

A personal injury case often needs an estate lawyer - and an estate lawyer often needs a personal injury lawyer's perspective. Alex Weatherby will start with a discussion on wrongful death and related claims, as there are unique issues in the state of Georgia that can make prosecuting a wrongful death claim tricky. He'll also cover claims involving a minor, because probate courts play a significant role in these claims as well. There is, obviously, much more to litigating both wrongful death and minor injury claims than can be covered in one hour. This course serves as an overview of the types of personal injury cases that will primarily intersect with probate and estate law.

Transcript

Thank you everyone for joining us today. This is going to be a CLE titled, "The Intersection of Personal Injury and Estate Law". My name is Alex Weatherby. I am a personal injury lawyer based in Georgia and a lot of what I'm going to talk about today will use Georgia law as an example. But as you'll see a lot of the principles will apply to other areas of the law as well. Personal injury and estate law often intersect. They do so primarily in wrongful death cases where you're going to have an estate, and they also intersect in minor cases where you may need to have a trust, a guardian, a conservator, things like that. So it is an interesting topic for both personal injury lawyers and estate lawyers. So a little bit about me. I'm a first generation lawyer and my dad is a plumbing contractor and it didn't take me very long to figure out there had to be an easier way to make a living. I'm a personal injury lawyer and truck accident specialist with 12 years experience. I've handled dozens of truck accident cases and I practice on both sides of the aisle. So, in a wrongful death case, some of which I'm gonna be pulling from for this presentation, I was the lead counsel on the plaintiff side in an over $27 million verdict here in Georgia, one of the largest in 2018. And then I'm also the lead counsel for some other Fortune 100 companies on defending lawsuits. So I know a little bit about how both sides feel on these important issues. I also like to tell people a little bit about my personal life too because even though we're meeting in this kind of virtual setting, it's nice for you to know a little bit about me. So I live in Decatur, Georgia, which is a small city outside of Atlanta and I live there with my wife and my two daughters, aged seven and nine. So when I'm not lawyering, I'm chasing them around. Every good lawyer has a disclaimer, right? And so we are gonna have one for this too. The world of wrongful death claims and minor claims, where they intersect with personal injury is very complex. Like most estate cases, they're as complex as the families that we all have. And so it is impossible to present on every subject. I'm not a probate lawyer. I work with probate lawyers when I need them. And one in particular, Roger Kirschenbaum here in Atlanta is highly regarded and he assisted me in providing some of the material that I based this on. I'm a Georgia lawyer, so many of the things I talk about are Georgia-specific because that's what I know, that's what I practice. But other states may have similar rules or schemes. They might not be the exact same, as I'm sure you already know since you're an accomplished lawyer yourself. But please review your case law. Don't just assume that what I say applies in another state. It's important to tread lightly when entering the world of wrongful death cases or estate law claims. And it's good to team up with experienced folks. I'm happy to talk with you about your wrongful death case, any of your personal injury cases, and I know some estate lawyers as well who I'm sure would be glad to work with you. So let's talk a little bit about the roadmap of where we're going to go over the next hour. So where do probate lawyers and personal injury lawyers overlap? The most two common are tortious death cases, and I'm using that term here. I know I've been saying wrongful death a moment ago, but the reason I'm using it here is because, technically, in Georgia, and I'm sure in many other states as well, there are two separate claims. We have a wrongful death claim that's a creature of statute. And then we have a separate claim that arises from a tortious death and that is a pain and suffering claim. So with those types of cases, we're going to talk about the different types of claims, the damages, the standing issues, as you can imagine, just like in an estate world of who's gonna inherit, well, the same applies to these types of cases. Who is going to actually bring this case? Does the wife, does the mother, does the child have the right? What if there's a grandchild? So it can get very complicated. We'll talk about standing and sometimes standing goes with distribution like when we distribute out the wealth, as you would imagine in an estate case. Sometimes, they're opposite. And then we'll throw in some other interesting issues as well. The second main topic that we're gonna talk about is minor injury claims. Again, here we're gonna talk about standing. What is the role of the parents or conservator, a guardian in this particular case when we have a minor that is to benefit? Then the distribution there, how do we distribute potentially millions of dollars in proceeds to an infant, for example? And we'll discuss the role of trust and annuities that can kind of bridge that gap. And then we'll talk about court approval. When you're dealing with a minor, the court wants to make sure that everything is being done in the minor's best interest. And so a judge will often have the final say on whether a settlement is going to go through or not. So probate attorneys and personal injury attorneys intersect most often in these two areas that we're talking about. When you have a negligent death action, it requires the involvement of the estate. It requires the involvement of distribution to the heirs and a lot of times the probate court, a place that is not familiar to us litigators and is very familiar to estate lawyers. Minor settlements also by statute, generally, require the probate court to do final approvement for the reasons we just stated. The court wants to make sure that the minor is being taken care of and so often these folks may send referrals back to each other. Personal injury lawyers could be good referrals for estate lawyers, probate lawyers. I've sent out a couple just in the last month myself because you have these unique issues and you need some help. Probate lawyers also can potentially send a personal injury case if they have an estate that needs prosecution, things like that. They need to hire a competent injury lawyer and they may be able to receive a fee, for example, under Georgia law because in the hands of a personal injury attorney that's competent, a wrongful death claim can bring a large result, like I mentioned, my verdict of 27 million. Now, sometimes, they're going to be a lot less than that depending on the facts and circumstances of each case, but they're still something that you need to be careful with because they're potentially very valuable. So we're going to jump into the tortious death claims and we're gonna start with talking about the types of claims. Then we'll go through the damages that potentially can be recovered. How do you prove those damages, which is one of the most interesting types. And then we'll talk about standing. There can be a lot of potential inviting and there's a lot of cases in our state Georgia that show kind of what happens, for example, if a unwed father of a child dies while the child's in utero. Who brings the claim then, who has the right to recover then? There's many more interesting issues that could occur. We'll discuss distribution and then other issues as well. So there's, generally, a couple of different types of claims that are gonna arise when you have a death that's due to the negligent, reckless or intentional acts of someone else. So there's a wrongful death claim and that arises via statute. And then there's an estate claim that arises for pain and suffering, medical expenses, funeral expenses, punitive damages, things like that. And this is all from Georgia. So your state may vary slightly from that, or significantly, depending on what the statutes and your case law says. But we're gonna look at our state as an example of the types of issues. So under Georgia law, a wrongful death claim and an estate claim are distinct and it's very clear that even when the same individual brings the claim, like let's say that it's the representative of the estate in both, it's still going to be considered under the law separate people. So it's kind of like when you sue a state officer in their official capacity and their individual capacity. Legally speaking, we're talking about two different people here. So, in this particular case, the representative dismissed the wrongful death claim and left pending the pain and suffering claim. And they were allowed to do that under the statute even though they didn't dismiss the entire action because they were just, essentially, amending their complaint. But everything has an exception, for example. And one very important exception is that in Georgia, under contracts, even though they are seen as separate people under the law for prosecuting a claim, for an insurance contract, they are subject to the per person limit, the single person limit. So there's a little bit of a incongruous nature there. We've got two people being seen as bringing the claim under the law for purposes of styling the claim, dismissing part of the claim. That's okay. But then when we get to the actual recovery for an insurance company, they're just subject to the per person limit. So that means if you've got a policy that is 50, 100, 50,000, 100,000, you're only going to get the 50,000 limit. You're not gonna be able to get the 100,000 limit 'cause they arise from an injury to a single person even though it's multiple claims. And there are always, as we know in law, exceptions to exceptions. And so this is the important thing about making sure that you're going with an experienced wrongful death and probate attorney because there's so many ins and outs. So, for example, a claim for wrongful death for purposes of our Georgia Tort Claims Act, actually gives you an additional level of coverage. So we had a case a few years ago involving the wrongful death of an inmate who dehydrated to death and we brought a claim against the state of Georgia, and the limits applicable to that claim were not just a million dollars, which is the general rule, they were two million because of the distinct legal person definition. There's not a contract like you have with an insurance company. And so it's different here. So exceptions, exceptions, which is always what we see in the law. So let's talk a little bit about the first claim, a wrongful death. Well, that is a creature of statute in Georgia and what the statute says is that you are able to get recovery for the full value of the life of the decedent without deduction for life expenses. So we're gonna talk a little bit about what the full value of the life means and show you the definition in a moment. But if you think about that monumental task that we ask a jury to do, and I'm gonna show you in ways that we did it in our 27 million verdict, but it's really a monumental task. You've got a trial that lasts a week or so, then you've got closing arguments, you can last maybe a couple of hours and, in that time, you have to talk to a jury and tell them all about the full value of someone's life, which, obviously, is really incapable of actual placement and monetary terms. But we have to do that. The statute also lists out a list of folks that are entitled to bring the claim. So let's talk a little bit about the full value and then we'll go a little bit into that standing that we talked about before. So recovery for a wrongful death case is the full value of the life. And what that says is under Georgia law, without deducting any of the necessary personal expenses of the decedent, had he lived. So it leaves it kind of vague. It just says, hey, you get the full value of the life. It's, essentially, up to the enlightened conscience of the jury, kind of like pain and suffering. You know, you've just got to tell us what you think it is. So when you look into the actual case law, though, there are two elements. There's an economic element and there is an intangible element. The economic value can be fairly straightforward. It's almost like a math problem that I'm working on with my children when they bring it home from school. You look at the amount of income the person earned, multiply it by the number of years, maybe do an actual present cash value for it. And then you also look at the lost economic value of household services. Let's say they were a stay-at-home mom like we had in that 2018 case. Well, still that person, as we all know, a stay-at-home parent works about as hard, if not harder, than anyone else in the family. And so there is can be an economic calculation for all of the services that they provide in the household that now that that person is gone, you have to provide them, you have to hire somebody to take children to school or clean the house or organize things. And so we talk about that and can show you how we do that. So one of the difficulties, and when you're talking about sort of the math formula of the economic value, one of the parts that you're trying to determine is how long the person can live. So if the person makes $10,000 a year but was 90 years old, that's gonna be obviously a lot different of a calculation than if they made 10,000 a year and were 25. But even when we deal with that 25-year-old, how do we determine how old, how long that person is going to live? Well, in Georgia, we have mortality tables that can be introduced and are admissible into evidence and we see here the suggested pattern jury charge at the bottom and it essentially just tells the jury, hey, look at these mortality tables. And you could assume, for example, that someone who is 14 years old is gonna live 60 more years till they're 74 or something like that based on this mortality table. Now, there also could be evidence against, for example, so let's say that the person had serious illness and so you say, well, yes, the mortality table says that they had 60 years left, but actually when we look at the health of this individual, we can tell that this individual had early onset diabetes or was dealing with cancer or whatever. And that can be factored in and you can pull down the mortality table life, but it is a good place for the plaintiff to start because it is admissible in Georgia. So in the example that we've been talking about, that 2018 case, we had a 51-year-old woman of good health. And so we used the mortality table in Georgia and here it is. And we argued that under the mortality table she had 29.91 years and the jury is instructed at trial that they can use that amount to calculate the value of the life, of the life expectancy of the mother that would then be included in the value of life. So let's imagine that we're talking about economic household services. Well, you can list them all out from driving, taking care of the children, meal planning, and preparing, whatever that individual did. You know, planning, and the case that we're using as an example, planning an event, birthdays, holidays, she was very into planning things like that. She was a team mom for many child sporting events. And so, it really is a full time job, 24 hours a day, 365 days a year. So you imagine, for example, the economic value of driving. We can figure that out fairly easily. There is a whole job and industry based on people carting other people around. Taking care of children. Again, there is an entire industry built on childcare. We can talk about that. Family finances, there are financial planners. There are other people who help with family budgets. And so, you can start to add up these things and you can even get an economist that can add up these things and can tell you how much is it going to cost you to hire a driver to drive the children to and from school? How much is it going to cost you to hire someone to do meal planning and preparing for the week? Once you have that figure, you can put it into an economic analysis and say this is how much. That's a little bit more of a challenging calculation than the economic value of a job. So here's one from a different case that we have had. And you look at the past and future losses and you get an economic calculation of 1.6 million. This was taken from an expert report. We have an expert economist at the local university down here. So you can imagine using each of these, you start to argue, well, hey, they were gonna live 25 years and they were gonna earn $1.6 million in just pure economic value. That's before we even get to the intangible element of life. That's a little bit about how we are going to deal with the first element of, okay, how much is this individual wrongful death claim worth? Well, we're looking at the tangible aspect as it's defined in Georgia law. Then we go to the intangible element, and this is in Georgia, which is unique to some states. For example, in other states you look at the value of the loss to other people around you. So if my mother dies, it's the value of the relationship to me as the living person. Here, though, in Georgia, it's from the decedent's point of view. It's as if they are an invalid and you are taking care of them. They're not able to participate in anything, but they can witness all the things that they miss. So it's in the death of a mother, it's the mother's loss of her relationship with her son as opposed to the son's loss of his relationship with the mother. So it's a legal fallacy, if you will, that we are compensating the mother for the loss of her relationships, loss of her time on earth as opposed to compensating the family for their loss, which is a subtle but important difference. So how in the world do we begin to talk to a jury about that? Well, what you can do is come up with a table on the defense side, I mean on the plaintiff side, and talk about all the different things that match with the evidence that you've talked about through the relationships with the important people in their lives and then place a monetary value on it. The trips that they like to take, missing out on grandchildren, just growing old, things like that. Whatever is tailored to the facts of the case. On the defense side, you're going to be looking at those same types of things and trying to argue that there really is no actual inherent monetary value to growing old. That is just part of the human experience where none of us are guaranteed it, et cetera. So that is kind of how you start to look at the intangible aspect of life. And, as you can see, it gets a little bit more loosey goosey than the straight mathematical calculation that we saw just a moment ago. When we're dealing with the world of math, it's a lot easier to just plug X, Y, and Z into the formula and get the result. Here, we're talking a little bit more in general nature. What would be the value of 29 years of lost life experience? The truth is nobody knows. There's not a real actual value. This is from the verdict that we had before. And so you can kind of see all of the nature of what they did and the different ways that they allocated the damages. So, in addition to the wrongful death claim, you're also going to be looking at the pain and suffering claim. So sometimes in Georgia, for example, the decedent's personal representative has a right to recover separately for the suffering that occurs before the death. Obviously, there's no pain and suffering once we pass away. They're at rest at that point. It's before you get in the car accident and then for three or four days are struggling and trying to deal with the pain and then you pass away. During that three or four days, what is the value of that? Well, in Georgia, the personal representative can do it. In California, they just added the right within the last year for the estate's representative to bring that claim as well. Before that, that did not exist. And so you want to look and pay careful attention because this can potentially be a valuable cause of action. The Georgia Survival Statute, it gives the decedents representative the right to bring it. But just when we talked about standing before, in other aspects, perhaps, it's done through the estate or perhaps it's done through the spouse or things like that. You've gotta figure out which way it goes in your particular state. The estate claim also has a claim for medical and funeral expenses in Georgia. So once the person passes away, perhaps, they were at the hospital for a few days, they've got medical bills. Perhaps, there was a service, we're going to have to pay for a cremation or burial, things like that. Those life expenses that have now been incurred due to the negligence or acts of another. Those are able to be recovered by the personal representative of the estate. So, in Georgia, the estate also can recover punitive damages. Now, this is kind of interesting because the wrongful death claim in Georgia is also considered punitive. It arose out of statute to make sure that people could recover for someone who passed away. But because it is a derogation of common law, it's against what the common law had said, it's strictly construed. And so it has been found that there can be no punitive damages for a wrongful death claim. But because, legally speaking, we have two different types of standing, the standing to bring the wrongful death claim and the standing to bring the pain and suffering claim, attached to that pain and suffering claim can be asserted a punitive damages claim. So that's a little bit about the different types of claims that can be asserted and kind of how you're going to prove them. Now, standing can get a little tricky and this is really where personal injury and state law really start to intersect because you're interpreting statutes and trying to apply them to the complex nature of families and who is going to get to recover under certain instances. So, in Georgia, the statute attempts to set forth a very straightforward succession, a line of succession. And the succession goes spouse first, then children, then parents, then personal representative in that order and which you have each person, they trump the next person. So a spouse can bring it and, if a spouse can bring it, no one else can. If the spouse does not exist, then the children of the person can bring it. If there's no spouse and no children, then the surviving parents can file. And if none of those people are able to bring it, well, we don't want the claim just to go away. And so then the personal representative would be able to bring the claim. So it seems pretty straightforward, and I think probably when the legislature wrote it, they thought, hey, we did a good job, guys. But there are a lot of unusual cases because families are complicated. That's what probate law teaches us. They are not so simple. So let's say, for example, what if the surviving spouse who has the right to bring the claim, he's married to the person who passes away. Under the statute, he has the sole right to bring the claim. What if he just doesn't want to pursue it? Well, in the Dorsey case in Georgia, this same issue came up. And so in this particular case we deal with a different type of family where the husband is married to his wife. The wife is also a parent of children, but the children are not related to the husband. So after the wife dies, the husband moves away and leaves the children with other people, leaves them with caregivers. He says, "I don't want to take care "of these children who are not my own children." So he leaves and, when he leaves, he abandons the children and abandons the wrongful death action. Well, does the defendant just get off scot free at that point because the husband doesn't care? He's not gonna bring anything and the children are not able to bring anything under the statute. Well, what the court decided in Dorsey is that the children were able to bring the claim. The court was gonna exercise "its equitable powers" to recognize that we're not gonna allow this injustice to stand. We're going to say, okay, families are messy. The legislature did as good as it could. So here we are, the children can bring the claim. So that's just one example. All right, we alluded to this case before, another unusual case, what if the father dies with no spouse and a child in utero? So here we don't have a spouse, so it would ordinarily go to the children. Technically, we don't even have a child because the child isn't born yet. It's in utero. So it would go to the parents of the father, the grandparents of the child, the parents of the father who died. But then, subsequently, the child is born. Now we do have a child. So when does the wrongful death action attach as a right, who can bring it? Well, what the court did in Flora is what they said, they looked at the probate statutes of inheritance and they, essentially, said similar to that, we're just gonna adopt that same rule. That if we have a child in utero and the child then is born and survives for a 120 hours, don't ask me who decided that was the line, but that's the line, then the child now has the right, not the grandparents, not the parents of the father who died. So before this Flora case, this was an unsettled question. All right, so another unusual situation. Let's imagine that persons are married in another state but not in Georgia. And this had a much more potential frequency of happening before the Obergefell versus Hodges case that legalized same sex marriage. But still it can occur. For example, in Alabama, there is common law marriage and, in Georgia, there is not. You have to either be married or not. And even if you lived with somebody for seven years or 20 years consecutively, you're not married. Now what happens then? Because it would either go to the spouse if the marriage is valid under the statute. If the marriage is not valid, it's going to skip that spouse. It's gonna leap over them to the next person, which would be the child. So, well, in Georgia, what they decided, and this is from the Norman case, what they decided is marriage is a contract. It's really a contractual agreement between the two spouses to get married and the state to honor the marriage. And so Georgia's going to treat a marriage contract just like any other contract. We're going to say, okay, if the contract is determined based on the common law, which says the contract, the validity of a contract is determined by the validity of the place it's made. And we want to do that because if you imagine like in a sales contract, you don't want a company to agree to sell something in New York and then come to Georgia and say, ha-ha, I don't have to sell it to you anymore. We wanna recognize that and have that consistency. The same thing here. And so the spouse was able to bring the claim. All right, well then we have who brings the claim for a minor child? So let's imagine that the father dies. He has no spouse. He leaves a minor child, a two-year-old. Well, the two-year-old, obviously, is not going to be able to bring a claim on their own. And so who brings the claim for them? Well, in Georgia, we consider this a property right, the wrongful death claim. And so the guardian of the property of the mother would bring, property of the minor, would bring the claim on their behalf. All right, let's talk about another unusual case. And, as you can see, you can start to get the feel of this true intersection of personal injury and estate law. That we have a personal injury case that now feels a lot like an estate case and, in some cases, has to be determined by a probate court to say, who is the heir here? Who has the standing to bring this claim? So what if there is one child of majority and the others are minor children? So, in that particular case, the child of majority brings the action and acts as a fiduciary to divide the proceeds among the children. So you can imagine, for example, a parent dies, has a child who's 18 years old, another kid who's 10. The 18-year-old can bring the claim but doesn't get to recover at all. Instead, they need to bring the claim and then act as a fiduciary for the 10-year-old to give them their half of the proceeds. One of the saddest situations that we can deal with in law is when a child passes away and then we have to deal with the wrongful death claim due to the loss of the child. So if there is no spouse, like, for example, if it's a minor child, then the parents can bring the right to recovery. Or even if it's a person who's older, the parents can bring the right. Then we start dealing with the complicated nature of, well, what if the parents are together but don't live together? What if the parents are together but then one dies? So if the parents are living together in harmony, they both bring the right jointly. If one parent is deceased, then the right passes to the parent who is not deceased. And then you have sort of dealing with the complicated nature of life. If they are both alive but divorced, separated, or living apart, then each parent has the right to bring it. And then they would have to determine, obviously, the amount that each parent is entitled to if each one gets to bring it. So a parent can lose their right to participate through abandonment of the child. We can imagine a scenario where a father and mother were married, say the mother leaves the child, does not pay for anything, does not support the child, have any relationship with the child, then the child is killed and there is the potential for a very large recovery. And, all of a sudden, the mother pops back into the picture. That has happened in Georgia. And under those circumstances, the Rhone court found, and this dealt with the father, "He must have provided, during the lifetime of the child, "such financial support as shall have been reasonable "under the facts and circumstances, "bearing in the mind the needs of the child "and the ability of the father to pay." So what the court there said is the father who abandoned the child could not recover in that wrongful death claim if he had not meaningfully financially supported the child. He needed to provide reasonable support for that child in order to recover. So we're not gonna allow a parent to get out of the picture and not be a part of the child's life and then come hurrying back when there is a potential of recovery of a significant sum. So we spent a lot of time talking about standing and many people ask, well, what's the big deal anyways? Let's say that the mom brings it, really a spouse should have brought it or something like that, why does that matter? Well, like with any suit, standing is a key element in order to actually have your case heard by the court. So if there is no standing then you're going to have no lawsuit, not gonna be a valid lawsuit. So we dealt with this in the Maloof case. And, in that case, what happened is a nephew brought the claim. Well, like we talked about before, the nephew is nowhere in the line, right? It goes spouse, if no spouse, it jumps to children. If no children, it jumps to parents. Then if no parents, it jumps to the personal representative. Well, here the nephew brought the claim without being named the personal representative. The court dismissed the claim and then it was after the two-year statute of limitations applicable in Georgia. So now there is no recovery for this wrongful death claim. So you have a whole claim that is now invalid because of standing issues. And so it's very important that the right person brings the lawsuit or there's a risk of the entire suit getting thrown out, just like standing in any other case, that's gonna be one of the main things the court looks at. Are you the right person prosecute this case? 'Cause the court, obviously, doesn't want the nephew to bring the claim and then the personal representative file suit a year later. So once we determine standing, and let's say that a claim is successfully brought, and now we're looking at distributing the proceeds, well, again, this can sometimes be trickier than it seems. So, for a spouse, the spouse can bring the claim and settle the claim without concurrence of the children, but the spouse is not entitled to a 100% of the claim. Instead, the spouse and the children each share equally except that the spouse receives no less than one third. In other words, if there's a spouse and one child, they're going to be divided 50-50. If there's a spouse and two children, it's gonna be one third, one third, one third. If there's a spouse and three children, it's gonna be one third to the spouse and then the remaining 66% or 67%, it's going to go to the other children. The spouse cannot bring the claim, settle it and keep the money, or bring the claim, settle it and try to divide the money more pertinent to themselves. Just like the older child when we talked about the older child that was standing to bring it for the minor child, if there are multiple children, the spouse is also going to be in that fiduciary capacity. So here's another interesting situation. What happens with parent distribution? Let's say that we don't have an entire abandonment situation, but instead we just have a parent who paid their child support but never saw the kid, had no real relationship with them. And then we have, let's put a father and mother here, so let's say the father had no real relationship with the child, the mother really primarily raised them. The father did provide what financial support they could. So there wasn't full abandonment, we don't have that to deal with, but the mother still, it seems like in equity should get more. Well, under Georgia law, there is a procedure for that. And what they say is that prior to trial, so that's important, it can't be after trial, prior to trial, the parent who believes they're entitled to more files a claim saying, judge, I'm entitled to this percentage and it's also going to be a determination based on the full circumstances. And so we see it here, it sounds almost like family law here. The judge shall consider each parent's relationship with the deceased child, including custody control and support as well as other factors found to be pertinent in making that decision. So again, it seems straightforward. Well, each parent should get half, but in some instances, it is not going to be fully half. We also have that abandonment rule. And so that Rhone court, as we talked about before, it said that the father could not bring the wrongful death claim because he had not supported the child reasonably during the lifetime. Well, he also isn't going to get any distribution either under those circumstances. So we have the abandonment. In the past, we've brought a suit in the probate court for one of our wrongful death cases to determine that, hey, the father did abandon the child and should not be considered any type of heir to the estate or entitled to bring the wrongful death claim and the court agreed with us. All right, so then we have another kind of interesting situation. So remember we talked before that the Wrongful Death Act says, okay, the spouse can bring the claim and then they split it with the children. What happens if one of the children has pre-deceased the decedent, one child is pre-deceased. So now we have the spouse, one child, and a grandchild of a pre-deceased child. Well, the Tobert case said that, the Georgia Supreme Court made what I consider to be sort of an unusual ruling, but one that is in line with the text, the statute. They said under these circumstances, the grandchild has no right to recovery. The pre-deceased child does not go there. They don't get it. And so we could see here, "Only when a decedent's child "is an original claimant in the wrongful death action "and only when that child dies during the pendency "of the claim can the child's descendants "participate in any recovery." In other words, if the child pre-deceases their parent, no recovery. If the child deceases after the parent dies, then their children can still participate in the recovery. So that's kind of an unusual scenario and it creates this unusual situation. No recovery for the grandchild unless their parents dies, while the wrongful death action for the grandparent is pending. So you're treating the same people differently based on very seemingly minor issues of death. So there are ethical issues for persons bringing the claim. You know, it places, similar to an attorney, how you're thinking about other people's interests, here, there's often a fiduciary issue where the spouse is bringing a claim on behalf of the children or one child is bringing the claim on behalf of the other children or a personal representative who is bringing the claim on behalf of heirs. So that person has to have their fiduciary cap on, similar to an attorney. Allocation issues and division issues are also important. Once you get the money, how are we going to allocate it to the different claims? As we said before, the estate could seemingly have different heirs, different liabilities than the wrongful death claim. So how do we determine how much of a lump sum settlement, let's say a $100,000 for easy math, how much of that 100,000 goes to the, how much of that 100,000 goes to the pain and suffering claim? How much of it goes to the wrongful death claim? And we have division issues. All right, now, we've determined that, how much of each person gets each? So this is stuff that starts to look very similar to probate rules and a probate lawyer can be helpful. There's also situations where the tortfeasor themself is deceased. Well, when that happens, Georgia law permits opening of an estate from an interested party for the sole purpose of bringing a lawsuit against them. And then that creates interesting situations of, all right, now the estate is open and you've got, let's say, a county administrator because no one else would open it. Well, what is their obligation? How do they settle a case? How do they know what to settle? How do they know what the estate can pay? How do they know what a claim is worth? Do they have to pay for a lawyer? That kinda thing. So that's the overview of wrongful death cases. And now we're gonna go into minor claims and they're a little bit less complicated than a wrongful death case, but they still have some things that need to be looked at. So in a minor claim, again, we're going to look at standing. Who has the authority to bring the claim distribution? How do we distribute the proceeds? Do the parents get it? Do the parents hold it in trust for the minor? Is there a guardian? We'll talk about the roles of trust and annuities. So how do we build a trust? How do we pay for an annuity or, essentially, an insurance policy that pays over a period of time and how do we get court approval of all of these things? So the standing for the minor is generally gonna be the natural guardian or next of kin is going to be able to bring the claim. And so they can bring the claim without being appointed guardian of the, without being appointed conservator, but there's going to be a question later that we'll see of, well, how can you settle the case or get a distribution without that happening? But just bringing the claim, and this is from the Grange case, in that case a grandmother is the next of kin was able to enter into a contract, apply for the minor child to bring a wrongful death claim. But there are exceptions, of course, like in a lot of things in the law. And so even though you can enter into a contract, when it comes to settlement and things like that, we've gotta make sure that there was adequate consideration. The courts start to step in there when we're not just actively protecting the rights of the child, but there's a risk that maybe the rights of the child are being thrown out, then the courts are gonna be look, take a little bit more of a skeptical eye. And so they said in the Grange case, okay, you can bring the claim, but in order to resolve the claim you're gonna need to be a guardian of property at that point. So what is our practice? Generally, what we do is we work with a probate lawyer and we seek appointment as a conservator prior to filing the suit. And then we've also sought it after filing the suit depending on the facts and circumstances of the case. But we, generally, will go ahead and try before, and if they say you need to wait, sometimes the judge will say you need to wait until you actually have property and we'll wait. But we would rather be safe than sorry, that's just kind of our practice. So, in Georgia, whether or not you need court approval for a minor settlement depends on the amounts that are at issue. And so, if you've got $25,000 or less, you're not gonna need court approval. At that point, the policy is, hey, this isn't that much money. You just have to send an affidavit saying you're gonna hold it for the use and benefit of the child and then you don't need court approval. When we get over 25,000, that's when the courts, again, their antennas go up and they're saying, okay, let me make sure here that the minor's rights are being protected. So we do need court approval for settlements over 25,000. Then a question comes, okay, does there need to be a court-appointed conservator that's going to marshal that money and hold it for the benefit of the minor? In Georgia, a conservator is needed if the minor is going to receive more than 25,000. But a conservator is not needed if the minor is not going to receive more than 25,000. All right, so let's say we settle a claim for a million dollars, and after attorney's fees, you've got 670,000 roughly. It would seem on its face that a conservator would have to be appointed under those circumstances because we have so much money potentially going to the minor. Court approval is going to have to happen, but a conservator may not have to happen. So how are we going to do that? Well, under Georgia law, you can do a combination or one or the other of a trust or a annuity that would protect those funds for the minor. And so the minor actually isn't receiving any more than 25,000 while they're a minor. Instead, the trust is receiving the money, the annuity is receiving the money. So in a settlement case that we had once, it was resolved for an excess of $4 million without a conservator because the minor's funds were going to a combination of trust and annuity. So the minor wasn't actually physically receiving those funds. Instead, they were going to a trustee or an annuity company. What is an annuity? Well, an annuity is, essentially, a insurance policy that are purchased with upfront funds in exchange for guaranteed returns later. So they can be good in the case of a minor child because you can say, okay, for this minor child, for 20 years, we're gonna grow their money. You're gonna give us a million dollars. We're gonna give you three million in 20 years. So it can do some pretty powerful things. What is a trust? Well, a minor trust really is similar to any other type of trust that you would create. It protects the funds. You have a trustee that's gonna protect the funds for the benefit of the minor in exchange for a fee and they are going to serve as fiduciary and then the trust can distribute for the minor's benefit. So the parents, it can be good because if you buy an annuity that fund's locked up forever. You're not gonna get any money until whenever the annuity says in your '20s. It doesn't matter what's going on, if the child desperately needs a surgery or something like that. But in a trust, the fiduciary nature of it is such that the trustee can look at the thing and say, yes, we do need to send this money out for the surgery or whatever it may be. So, a lot of times, you're looking at a trust versus an annuity and a probate lawyer can be really helpful here. They understand this stuff frontwards and backwards. But my general feeling from the few times that we have done this, done the look between a trust and annuity is a trust permits access to the funds for the minor's benefit. That's probably the biggest benefit. Whereas an annuity locks up the funds. Probably the biggest downside to a trust is a trust does not guarantee returns. So we say we give you 50,000, there's no guarantee in a trust, it doesn't get invested and lost. An annuity is going to guarantee gains where we pay 50,000, MetLife gives us a 100,000 back. The trust also includes fees to the trustee. An annuity contract includes brokers' fees. But similar to like when you buy a life insurance policy, it's buried in the cost of the policy. In other words, when you purchase the annuity and you give them the million dollars, they don't say, and this what's goes to fees. It's just incorporated in their calculation of how much they're gonna get back to you. So court approval also has to take place. So let's imagine that we've got the settlement and now we've determined our annuity, our trust, what percentage we're going to do. We've got our probate lawyer on board and the probate lawyer says, okay, we've got all the paperwork together. So then you need to get court approval. One big question is where do you go for court approval? You know, Georgia, like many states has a lot of courts. You've got state court, superior court, magistrate court, probate court. Well, according to the statutes, it depends the position that the suits of. So if a lawsuit has not been filed against the defendant and we're just settling based on like a pre-suit negotiation, then you go to the probate court just like you would for a standard estate matter. If the suit is pending, so we've already filed a lawsuit against the person, now we're going to superior court for approval or state court, wherever the court is actually, wherever the lawsuit is pending. And the rule is going to be in the quote, "best interest of the minor". So you're looking at is this settlement in the best interest of the minor? And so the court's gonna take into consideration the amount of the settlement, the liability defenses, the causation issues, the guaranteed payments, things like that. So we will often get assistance from estate lawyers, probate lawyers in drafting consent petitions. You know, we try to get the probate court to see what really is the truth that we have gotten together and we have decided that this was a settlement in the best interest of the minor. So, hopefully, you can see from this course that probate law and personal injury law intersect a lot, particularly when you're dealing with wrongful death claims and you have all of these different things that start to look a lot like estate issues. Who is entitled to recover when somebody passes away? Just like in a standard will situation. And what do the statutes say? Then we're also looking at minors. That's another key area of intersection because you've got, once again, a ward. And so who's gonna be the guardian of this ward who's going to go out and pursue this claim to ensure that the person recovers the amount that they should recover? In my experience, it's generally best for each person to stay in their own lane. So for us to hire an estate lawyer who can help us navigate the complex world of probate law and we also enjoy helping probate lawyers navigate the complex world of wrongful death and personal injury. So, as you've seen throughout this presentation, my contact information is at the bottom. I would love to talk with you about these or any other issues that you have and I wish you the best in your pursuit of the intersection of personal injury law and estate law.

Presenter(s)

AWJ
Alex Weatherby, JD
Managing Attorney
Weatherby Law Firm, PC

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Not Offered
    Alaska
      Not Offered
      Arizona
        Not Offered
        Arkansas
          Not Offered
          California
          • 1.0 general
          November 28, 2024 at 11:59PM HST Approved
          Colorado
            Not Offered
            Connecticut
              Not Offered
              Delaware
                Not Offered
                Florida
                • 1.0 general
                July 31, 2024 at 11:59PM HST Approved
                Georgia
                • 1.0 general
                Unavailable
                Guam
                  Not Offered
                  Hawaii
                    Not Offered
                    Idaho
                      Not Offered
                      Illinois
                        Not Offered
                        Indiana
                          Not Offered
                          Iowa
                            Not Offered
                            Kansas
                              Not Offered
                              Kentucky
                                Not Offered
                                Louisiana
                                  Not Offered
                                  Maine
                                  • 1.0 general
                                  December 31, 2026 at 11:59PM HST Pending
                                  Minnesota
                                    Not Offered
                                    Mississippi
                                      Not Offered
                                      Missouri
                                        Not Offered
                                        Montana
                                          Not Offered
                                          Nebraska
                                            Not Offered
                                            Nevada
                                              Not Offered
                                              New Hampshire
                                                Not Offered
                                                New Jersey
                                                • 1.2 general
                                                January 16, 2025 at 11:59PM HST Approved
                                                New Mexico
                                                  Not Offered
                                                  New York
                                                  • 1.0 areas of professional practice
                                                  November 28, 2024 at 11:59PM HST Available
                                                  North Carolina
                                                  • 1.0 general
                                                  Unavailable
                                                  North Dakota
                                                    Not Offered
                                                    Ohio
                                                      Not Offered
                                                      Oklahoma
                                                        Not Offered
                                                        Oregon
                                                          Not Offered
                                                          Pennsylvania
                                                            Not Offered
                                                            Puerto Rico
                                                              Not Offered
                                                              Rhode Island
                                                                Not Offered
                                                                South Carolina
                                                                • 1.0 general
                                                                Unavailable
                                                                Tennessee
                                                                • 1.0 general
                                                                Unavailable
                                                                Texas
                                                                  Not Offered
                                                                  Utah
                                                                    Not Offered
                                                                    Vermont
                                                                      Not Offered
                                                                      Virginia
                                                                        Not Offered
                                                                        Virgin Islands
                                                                          Not Offered
                                                                          Washington
                                                                            Not Offered
                                                                            West Virginia
                                                                              Not Offered
                                                                              Wisconsin
                                                                                Not Offered
                                                                                Wyoming
                                                                                  Not Offered
                                                                                  Credits
                                                                                    Available until
                                                                                    Status
                                                                                    Not Offered
                                                                                    Credits
                                                                                      Available until
                                                                                      Status
                                                                                      Not Offered
                                                                                      Credits
                                                                                        Available until
                                                                                        Status
                                                                                        Not Offered
                                                                                        Credits
                                                                                          Available until
                                                                                          Status
                                                                                          Not Offered
                                                                                          Credits
                                                                                          • 1.0 general
                                                                                          Available until

                                                                                          November 28, 2024 at 11:59PM HST

                                                                                          Status
                                                                                          Approved
                                                                                          Credits
                                                                                            Available until
                                                                                            Status
                                                                                            Not Offered
                                                                                            Credits
                                                                                              Available until
                                                                                              Status
                                                                                              Not Offered
                                                                                              Credits
                                                                                                Available until
                                                                                                Status
                                                                                                Not Offered
                                                                                                Credits
                                                                                                • 1.0 general
                                                                                                Available until

                                                                                                July 31, 2024 at 11:59PM HST

                                                                                                Status
                                                                                                Approved
                                                                                                Credits
                                                                                                • 1.0 general
                                                                                                Available until
                                                                                                Status
                                                                                                Unavailable
                                                                                                Credits
                                                                                                  Available until
                                                                                                  Status
                                                                                                  Not Offered
                                                                                                  Credits
                                                                                                    Available until
                                                                                                    Status
                                                                                                    Not Offered
                                                                                                    Credits
                                                                                                      Available until
                                                                                                      Status
                                                                                                      Not Offered
                                                                                                      Credits
                                                                                                        Available until
                                                                                                        Status
                                                                                                        Not Offered
                                                                                                        Credits
                                                                                                          Available until
                                                                                                          Status
                                                                                                          Not Offered
                                                                                                          Credits
                                                                                                            Available until
                                                                                                            Status
                                                                                                            Not Offered
                                                                                                            Credits
                                                                                                              Available until
                                                                                                              Status
                                                                                                              Not Offered
                                                                                                              Credits
                                                                                                                Available until
                                                                                                                Status
                                                                                                                Not Offered
                                                                                                                Credits
                                                                                                                  Available until
                                                                                                                  Status
                                                                                                                  Not Offered
                                                                                                                  Credits
                                                                                                                  • 1.0 general
                                                                                                                  Available until

                                                                                                                  December 31, 2026 at 11:59PM HST

                                                                                                                  Status
                                                                                                                  Pending
                                                                                                                  Credits
                                                                                                                    Available until
                                                                                                                    Status
                                                                                                                    Not Offered
                                                                                                                    Credits
                                                                                                                      Available until
                                                                                                                      Status
                                                                                                                      Not Offered
                                                                                                                      Credits
                                                                                                                        Available until
                                                                                                                        Status
                                                                                                                        Not Offered
                                                                                                                        Credits
                                                                                                                          Available until
                                                                                                                          Status
                                                                                                                          Not Offered
                                                                                                                          Credits
                                                                                                                            Available until
                                                                                                                            Status
                                                                                                                            Not Offered
                                                                                                                            Credits
                                                                                                                              Available until
                                                                                                                              Status
                                                                                                                              Not Offered
                                                                                                                              Credits
                                                                                                                                Available until
                                                                                                                                Status
                                                                                                                                Not Offered
                                                                                                                                Credits
                                                                                                                                • 1.2 general
                                                                                                                                Available until

                                                                                                                                January 16, 2025 at 11:59PM HST

                                                                                                                                Status
                                                                                                                                Approved
                                                                                                                                Credits
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Not Offered
                                                                                                                                  Credits
                                                                                                                                  • 1.0 areas of professional practice
                                                                                                                                  Available until

                                                                                                                                  November 28, 2024 at 11:59PM HST

                                                                                                                                  Status
                                                                                                                                  Available
                                                                                                                                  Credits
                                                                                                                                  • 1.0 general
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Unavailable
                                                                                                                                  Credits
                                                                                                                                    Available until
                                                                                                                                    Status
                                                                                                                                    Not Offered
                                                                                                                                    Credits
                                                                                                                                      Available until
                                                                                                                                      Status
                                                                                                                                      Not Offered
                                                                                                                                      Credits
                                                                                                                                        Available until
                                                                                                                                        Status
                                                                                                                                        Not Offered
                                                                                                                                        Credits
                                                                                                                                          Available until
                                                                                                                                          Status
                                                                                                                                          Not Offered
                                                                                                                                          Credits
                                                                                                                                            Available until
                                                                                                                                            Status
                                                                                                                                            Not Offered
                                                                                                                                            Credits
                                                                                                                                              Available until
                                                                                                                                              Status
                                                                                                                                              Not Offered
                                                                                                                                              Credits
                                                                                                                                                Available until
                                                                                                                                                Status
                                                                                                                                                Not Offered
                                                                                                                                                Credits
                                                                                                                                                • 1.0 general
                                                                                                                                                Available until
                                                                                                                                                Status
                                                                                                                                                Unavailable
                                                                                                                                                Credits
                                                                                                                                                • 1.0 general
                                                                                                                                                Available until
                                                                                                                                                Status
                                                                                                                                                Unavailable
                                                                                                                                                Credits
                                                                                                                                                  Available until
                                                                                                                                                  Status
                                                                                                                                                  Not Offered
                                                                                                                                                  Credits
                                                                                                                                                    Available until
                                                                                                                                                    Status
                                                                                                                                                    Not Offered
                                                                                                                                                    Credits
                                                                                                                                                      Available until
                                                                                                                                                      Status
                                                                                                                                                      Not Offered
                                                                                                                                                      Credits
                                                                                                                                                        Available until
                                                                                                                                                        Status
                                                                                                                                                        Not Offered
                                                                                                                                                        Credits
                                                                                                                                                          Available until
                                                                                                                                                          Status
                                                                                                                                                          Not Offered
                                                                                                                                                          Credits
                                                                                                                                                            Available until
                                                                                                                                                            Status
                                                                                                                                                            Not Offered
                                                                                                                                                            Credits
                                                                                                                                                              Available until
                                                                                                                                                              Status
                                                                                                                                                              Not Offered
                                                                                                                                                              Credits
                                                                                                                                                                Available until
                                                                                                                                                                Status
                                                                                                                                                                Not Offered
                                                                                                                                                                Credits
                                                                                                                                                                  Available until
                                                                                                                                                                  Status
                                                                                                                                                                  Not Offered

                                                                                                                                                                  Become a Quimbee CLE presenter

                                                                                                                                                                  Quimbee partners with top attorneys nationwide. We offer course stipends, an in-house production team, and an unparalleled presenter experience. Apply to teach and show us what you've got.

                                                                                                                                                                  Become a Quimbee CLE presenter image