Unfortunately, in personal injuries cases, an individual sometimes has to pursue a case on behalf of a deceased family member. In these tragic situations, the individual has to deal with the loss of a loved one, pursuing a personal injury case, and possibility of administering their loved one’s estate. It’s a lot to handle all at once. At Pallante Law, our goal is to help our clients through these difficult situations. We have a team of dedicated individuals that can assist you with your personal injury case and help you set up an estate on behalf of your family member. Below is a brief guide to why you need to set up an estate, as well as an overview of how to set up an estate.
In Pennsylvania, an estate is usually opened to administer the assets and liabilities of a deceased individual. In the context of a personal injury case, opening an estate is essential for a family member who wishes to pursue a case on behalf of their loved one.
Before getting into how one opens up an estate, it is important to know why one needs to open an estate. In Pennsylvania there are two causes of action that a family member can pursue on behalf of a deceased individual; a wrongful death action and a survival action. At its most simple, a wrongful death action seeks to compensate the decedent’s family for the losses they experienced as a result of losing their family member. The damages in a wrongful death case usually include hospital, nursing, medical, and funeral expenses. It also includes the money the decedent would have provided to his or her family if he or she hadn’t passed away. In the past seven years, the Pennsylvania Superior Court also extended the recoverable damages in a wrongful death action to include the mental and psychological assistance that the decedent would have provided.
A survival action, on the other hand, is the personal injury case that the decedent would have been able to bring if he or she had survived. The survival claim is brought by the administrator of the decedent’s estate. The damages in a survival action are similar to any other negligence claim and include future loss income (that the decedent would have been able to make), the cost of medical bills associated with the decedent’s care following the incident, and the pain and suffering the decedent experienced as a result of the injury.
The key point here that the damages and beneficiaries can be very different for a wrongful death action and a survival action. In the case of a wrongful death action, the only beneficiaries are the spouse, children, or parents of the decedent. The damages awarded in a wrongful death action are distributed to these individuals directly and does not go through the decedent’s estate. In a survival action, the beneficiary is the decedent’s estate. The judgment becomes part of the decedent’s estate and then is divided up in accordance with Pennsylvania’s estate laws.
The point to remember here is that if an individual pursues a personal injury case based on a survival action, an estate will absolutely need to be created to distribute any damages to the decedent’s heirs.
So how do you set up an estate? The remainder of this article provides a general overview of this process. However, it is important to understand that estate law can become very complicated very quickly, and an individual will need an attorney to assist them with the process of setting up an estate for a decedent.
The point of opening an estate is to create a process by which a final accounting of all of a decedent’s assets (including personal injury judgments), debts, expenses, and taxes can be completed. Once all debts, expenses and taxes are paid off the remainder of the estate can then be distributed to the decedent’s heirs.
When opening up an estate the first thing that needs to be determined is whether or not the person died with or without a will. If the person died with a will, the will likely names an executor to run the estate. The executor must go to the Register of Wills to be appointed as the decedent’s personal representative. Once that is completed, Letters Testamentary and Short Certificates will be issued to allow the executor to act on behalf of the estate. The executor will also need to get a taxpayer identification number for the decedent’s estate, which will allow the estate to pay any taxes due.
If the individual dies without a will, the decedent’s representative will need to have themselves appointed as an administrator of the estate by the Register of Wills. In Pennsylvania, there is an order of priority for who can be named an administrator. First priority goes to the surviving spouse. If there is no surviving spouse then priority is given to decedent’s heirs. There are other potential administrators with lower priority but they are beyond the scope of this blog. The administrator will receive Letters of Administration, which are similar to the Letters Testamentary, and Short Certificates. The administer will also need to obtain a tax id number.
There is a filing fee associated with opening an estate, which is based on the size of the estate. If the size of the estate is unknown, the Register of Wills will bill the estate once the final accounting has occurred.
The next step of the process requires the executor or the administrator to advertise the Letters Testamentary or Letters of Administration in a newspaper and legal journal. The executor or the administrator is also required to notify all beneficiaries that the estate has been opened.
After the notification process is complete, the administrator or the executor then begins the final accounting of the decedent’s estate. As discussed above, the administrator or executor adds up the entire value of the estate’s assets and deducts the costs of administration and debts the decedent has. The remainder of the estate is then taxed by the state and federal government. Once the taxes have been paid, the remainder of the estate is divvied up among all of decedent’s heirs. A decedent’s heirs are based on the individuals identified in the will. If there is no will, Pennsylvania law determines who gets a share of the estate and how large that share is.
It is important emphasize that this overview only provides a brief outline of the steps one needs to go through when opening an estate in the case of a personal injury case. As with any area of law, the rules have exceptions and qualifications that are complicated and sometimes counterintuitive. One should not try to do this process on your own, without the assistance of an attorney.
We here at Pallante Law are proud to offer a dedicated staff which can help you with these issues if you so desire.
About the Author: Patrick M. Blair, Esq. is an associate at Pallante Law. His practice areas include Personal Injury, Workers Compensation, and Bankruptcy. Patrick is a graduate of Temple University Beasley School of Law where was an editor for the Temple Journal of Science, Technology and Environmental Law. He also worked as a mentor to incoming students through the ACE Program.