A Fast (but not Furious) Chat about Wills and Wrongful Death

Some people say to me, “But I don’t need a will; I don’t have anything.” For a few people, this might apply; those persons might not now have anything in their estates that needs to be handled with a formal plan. One concern, though, is that we cannot foresee how we will die or whether that might have an impact on our estate. Estate planning is just that—planning, which involves not only for the known, but also for the possibilities. A wrongful death accident is one of those unknown possibilities.

Wrongful Death and Estate Plans

Paul Walker's Wrongful Death Action

One of the lead news stories this morning shared with the world a private lawsuit: Paul Walker’s sixteen-year-old daughter is pursuing a wrongful death action against Porsche. According to CNN, the suit alleges a lack of safety features on the car that caused or contributed to Walker’s death. Walker, a film star known especially for his role in the “Fast and the Furious” movie franchise, died November 30, 2013.

We don’t have the facts necessary to know whether Porsche should have some liability in Walker’s death. The legal system will work to reveal this through the path of the lawsuit. And while most of us aren’t going to travel—however fast they were going—in a Carrera GT, traffic accidents happen. And they take lives. Annually, with over two thousand fatal traffic accidents in Florida (in 2013), along with all the other deaths that occur involving someone else’s negligence, understanding how that plays into an estate plan is important.

What is a Wrongful Death Lawsuit?

Each state has laws that control this area of litigation. They are generally being divided into two types: actions to recover for the loss suffered by the surviving family members and actions to recover for the harm to the deceased person. State law dictates who can recover damages. (For example, in Florida, adult children over 25 can recover typically only if the now-deceased parent was not married.) The action brought on behalf of the deceased, though, while technically guided by state law, has everything too to do with the estate plan.

Consider the person who is injured from an act of negligence but who survived for a period of time. The lost income and earnings between the date of injury and death as well as the expenses of medical treatment and funeral services might be recoverable. This lawsuit is brought by the personal representative (aka executor), and the estate is the entity that receives any monetary damages.

How Is an Estate Plan Involved in a Wrongful Death Claim?

If you do not have a will, the court will have to appoint a personal representative who would bring such an action. Further, if you do not have a will, Florida law will determine who receives the proceeds from any such lawsuit. But with an estate plan already in place, not only do you decide those issues now, you have the flexibility to set up tools like a testamentary trust , allowing you to protect young or minor children’s inheritances, allowing you to determine where those funds go, allowing you to choose who will be responsible for assuring those protections.

In actuality, we can say that everyone has an estate plan. But if you have not created your own, yours is the default plan created by your state’s lawmakers. An attorney, though, can help make sure yours is really what you prefer, not what the legislature thought would work for everyone. And considering vehicular collisions, unsafe products, medical errors, and other ways that negligence of another might cause death, having your personal plan in place can greatly help those you leave behind have one less thing to battle and worry about.

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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