[Music] Welcome back to another episode of the Auto Accident Attorneys Podcast. I'm your host, Attorney Ali. Today I am joined by one of my favorite guests and inhouse podcast council specialist. I was trying to come up with something off the riff. Attorney Rishi Patney of Patney Law Group. Welcome back, Rishi. Thanks so much for having me. It's a pleasure as always. I hope that it wasn't too long of a a commute to get here. No, no. I mean, the 15 steps down the hall was uh you know, it was manageable, but you know, every now and then there's there's a little bit of traffic along the way. It was was pretty good today. Jetty gets you caught up every now and again. That's usually the worst of it. Yeah, Jet Jetty does seem to cause a little bit of traffic back up. Actually, Jetty's in here. Well, she's laying down on the ground, so she won't be on camera today. But, uh, I do appreciate you taking the time to to step in and and record with me. Um, you know, we always try and put content out that, uh, is in line with our motto, we take care of you. And so, uh, we were riffing on your commute in today on what what information can we provide listeners today that would take care of them and maybe things that they don't typically think about. And you had mentioned what if we discuss wrongful death claims. Yeah, it's something it's, you know, it happens in traffic accidents. Um, and so, you know, you get phone calls about it. Um, but it's it's it's a little bit different because it's not the uh it's not your typical the person that was injured in the accident that's calling you. Um, unfortunately, that person is no longer with us. So, you're getting calls from a family member. Um, and and there's there's some nuance differences uh with those type of claims. And so I thought it'd be it'd be good for your listeners to to understand how those claims are are similar to to other traffic accidents and and auto accidents that you normally get calls from where it's the injured um party that that's calling you. Um and then and also how they're different and in in the fact that a a wrongful death claim has has multiple different components. I think the best place to start is at the beginning when we get that intake call, right? And um let's just say it's a surviving let's make it interesting. Uh it's a surviving spouse. Okay. Uh but the spouse doesn't speak English. So it's the child of the surviving spouse that calls that calls in. Absolutely. Um it's something that that I think we we see uh quite often, but it's so so what what what normally happens in that case? Well, um, you know, the the family is is typically still your client, right? So, so when when you talk about who you're referring to and and I do it until I understand exactly who is going to be the named representative, um, I refer to the whole family. um w in my letter of representation because uh you're not sure exactly who's going to have what claim and um and it's something that you want to get out to the um to the at fault party um if it's a motor carrier to the the trucking company and obviously to the insurance company um a letter of representation. So those one you know they often go out before you have all of the the nuance details or some of those decisions have been made. So when I refer to to who we're representing, um it's the whole family, but it is in in regards to the death of a specific person um that results from an accident. So you you mentioned the letter of representation. That's the first correspondence to typically the insurance company of the at fault in this situation. We're talking about auto accidents at fault drivers insurance company. So it establishes that uh the first line of communication with that insurance company saying hey we represent this family right prior to the letter of representation going out who is signing on the line that is dotted um in that case you would have well any anyone that has the capacity to to retain counsel so um I in in in your case if there if there is a surviving spouse uh that doesn't speak English, uh, but but is able to understand and, uh, and and the child can, uh, can can communicate and translate, um, I would want the surviving spouse to to be the person that signs on the dotted line. Um, but if if if communication is an issue and that they if if they wouldn't serve at in in a in a representative capacity, then then you could have the the surviving child if they're going to be the ones uh to carry forward. there there's some some limited exceptions where in a wrongful death circumstance when you do when you have a surviving spouse they're they they're the ones that are typically um given the wrongful death claim um or that they're going to bring it forward. But but you could have some some unique circumstances or under limited circumstances where even though there is a surviving spouse um a surviving child can bring the the claim instead of uh the surviving spouse. But one thing to remember and and something that that families want to know kind of you know very early on is what happens to to any proceeds from this accident. And so, you know, there's it's very specific. The surviving spouse um shares with all of the surviving children. Um but the surviving spouse can't get less than a third of any recovery of a wrongful death claim. And so, um the children can take um that they can split it equally so long as there's only two children. If there's more than two children, they're all going to share 2/3%, you know, 2/3 of the recovery. uh and want their go to the surviving spouse. That I actually didn't know. So the surviving spouse does not receive the entirety of the settlement funds. Correct. It's one-third surviving spouse, twothirds. Well, it's the issue. Well, it's it's split equally between the surviving spouse and the children. So long as the surviving spouse doesn't get less than a third. So the surviving spouse has to get at least onethird of the recovery. So, if there's uh four ch three or four children, that would dilute the surviving spouse's recovery. Uh if if you have a surviving spouse and two children, it's one-third each. Right. Right. Um but if it is just a surviving if it's a surviving spouse and one child, uh the surviving spouse would get, you know, they would get half and the surviv the child would get half. So, but the surviving spouse cannot receive less than a third. And in what what circumstance would surviving spouse take the entirety of the settlement if there's no children? And is this regardless of any will? This is the default rule. So if somebody passes and they don't have what do they call it? A testamentary document. Oh this this goes back to property law but I I believe the term is if they die testate intestate. if they if they die without a will, right? Um then then it then it follows. But but when it comes to because these are what they call survival claims, your your claim survives your death. Um there these are these are statutoily um developed in a way so that regardless of whatever is in your will. um however you've bequeathed all of your assets and provided for um this the wrongful death claims and the proceeds from a wrongful death claim um supersede even the way that you would have your will set up. So you can write um you know you can write a a child that you don't like out of your will, but um but they would still have a um a share the proceeds of a wrongful death claim that's brought on your behalf. that that's an interesting piece of information that I don't think many listeners would ever consider ahead of time. So, in our example where we have uh and I'm probably bearing the lead with you at least since we've already discussed these particular facts, but in this completely hypothetical example where we have a non-English-speaking surviving spouse Mhm. and she has six daughters and she receives the uh we settle the case, she receives the settlement, she's the one that has retain the firm. When the settlement comes in, let's walk through the logistics of that distribution of settlement funds with the matriarch, the the surviving matriarch of the family and the six sisters. And then let's throw in the wrinkle of conflict amongst the sisters. So, so in in that case um I this is this is where representation of the whole family becomes really problematic, right? Because of the the conflict. Um and and it is this is where it is is best to to get a probate attorney um to to look at look it over um because they will always be able to tell you exactly how to do it in a way where where you're not making the call yourself. I when it comes to those more complex things, I I I tend to refer out to someone that that handles probate and and family law. But um but I think in but when it comes to just the the wrongful death claim itself, now remember when it's when there's a wrongful death when when a person dies as a result of the negligence of a third party there there's two um two types of claims there. There is the estate claim which is the um and that that is held by the benefit or the administrator of the estate whoever is appointed um and that is separate from the wrongful death claim. Now, the the the estate claim is all of the special damages um that are, you know, all of the medical bills if the if the person survived and received medical treatment for a period of time after the accident. Um the the funeral burial bills um and all of those expenses. And then also if there is an element of pre-ac fright and shock, um those also belong to the estate. So, if there's a period of time where before the person died, they knew that their death was eminent um and there's an element of that mental anguish of knowing that you're going to die, but and and you're conscious of it and you are in pain. Um there, you know, the the classic example of that is um somebody that is, you know, after a horrific accident that involves a fire and you know, and and you've got a family member that is consciously in pain being burned. And you know, you'd have obviously have to show that there was conscious pain and suffering for a period of time, which is typically um you know, it's a it's tough to hear for most jurors, but somebody describing the the pain of a family member burning um it's something that is it's really really um it's tough testimony to talk about, but it's incredibly necessary because there's a huge element of of the damages that are recovered in that case, which which deal with pre-death fright and shock. and the conscious pain and suffering prior to death. Now, why you're talking about the claims that are owned by particular entities, why are those claims owned by the estate of the deedent, the the person that has passed? So, th those are claims that um that are because because those are those are legal claims that are essentially repaying um a lot of the um you know, a lot of the special damages. If I if if the the people who from from where those claims or or those expenses were incurred um they would they would seek re repayment of those. For example, the hospital that treated the patient prior to prior to to dying. Um uh the the ambulance that transported the patient from the accident scene to the hospital. um when they seek repayment of those they the the estate is the legal entity for somebody that is no longer alive from where you would seek that payment. It is the it is the legal fiction um entity that is created to handle your affairs after your death. Now on today's episode we have very clearly one empty seat. So, this is indicative of a volume two for this episode. Where are we going to bring exactly? We're going to bring in a probate attorney to discuss this. But while let's plant some seeds or this is the ultimate cliffhanger for our listeners, and you know this cuz I say it every time. The person who's most interested is going to be my mom. So, my mom is tuning in for episode two of this and we're talking about the estate that that legal fiction. Is that what you just said? Yeah. The legal fiction of the estate being uh it it owns those rights. I mean, we we treat it as if it's an entity, but it it's kind of like a like an LLC, right? An LLC is nothing but a legal designation by the Secretary of State that gives life to something that is just a it's a name, right? So, so the the estate of some person is is is just the legal designation given to the you know but the estate does have assets and there's what they call the corpus of the estate which is all the property that the person that that died in testate holds and even if they die with a will they can still designate someone to be the administrator of the estate. Um and then they would also be the designation of that um of that entity. they're they're in charge of that entity marshalling all of those assets together um and then being responsible for making paying out the claims as as necessary and these are claims of people that are owed money from the estate. So the same way that if um you know if I if I were to to die in an accident but I were to you know um after um American Express wants to get their final check on the on the last credit card statement. So they would they would they would recoup that payment from from my estate. And so all the people that I would owe money to, they would they would get that money from my estate. So you already dropped some hints uh by comparing it to an LLC, but I liked that you had said it was like a a legal fiction because was presenting the opportunity for me to say, well, so does it actually get set up? Is it automatically set up? The the So let's get into the logistics after death. Is an estate automatically created as a legal fiction or is it something that has to be proactively created and it actually exists? It it has to be done proactively. Then there have to be affirmative steps that are taken um petitions filed with the court to create the entity and then to also appoint someone to be the administrator of that entity. That administrator has the role of a fiduciary which is that they can't be personally interested in it themselves. they can have an interest in the out, you know, in the proceeds of the estate, but they have to act in the best interest of all of those both creditors and beneficiaries of the estate. So, since we're talking on estates, I want to come back again uh to our theoretical example of the sisters, but that I was walking down a pre-litigation uh example on that, but since we're on estates, let let's go through lit. Say this this auto accident occurs. Uh there is a million dollars of insurance available. When the law firm tries to or the attorneys try to settle this case, uh they cannot get the full value of the entire insurance policy. So litigation starts. We file suit. In order to file suit, the first thing that needs to be done, you were mentioning the entity has to be created, right? says, you want to have the estate set up. When when you when you file a wrongful death lawsuit, you're you're filing both the wrongful death claim, which we talked about belongs to the surviving spouse, um, but it can also be brought by the surviving children. But typically, the the the easiest way to do it um because there's only a few very narrow circumstances where even though there is a surviving spouse, the children will be allowed to bring the case. And that is where if there's a level of incapacitation or um a refusal to bring the case that the children can petition the court to be allowed to bring the case, the wrongful death case. But if there is a surviving spouse, it's brought by the surviving spouse. Um but the proceeds have to be shared with surviving children. Um and then that's the wrongful death part of it. Then the administrator of the estate is the one who brings the the estate claim, which is your um your all of your medical bills, special damages, um post accident expenses that were incurred. Um and then pre-death fright and shock and um conscious pain and suffering. So on court documents, when there's a lawsuit filed, it is we're just going to use the name John Doe v. David John, right? What is the plaintiff name? So there you would have um so and so uh you know the surviving spouse um so let's say Jane Doe uh as the surv as the administrator uh as the administrate of John Doe. Um and then if Jane do is the surviving spouse um so she would be bringing it in her capacity as the administrator and also as the surviving spouse. Now let's say you've got the the probate court appoints somebody else other than the surviving spouse as the administrator of the estate. Well then you'll have you know um John Paul as the the name of the the administrator of the estate. Um so they will handle the estate claim. Um and then you will have Jane do as a surviving spouse bringing the wrongful death claim. What happens if the administrator of the estate uh wants to settle the case but the surviving spouse and children think that the value isn't high enough. That is interesting. Um, when you when you have both of those components, I think that's where you would want it can get dicey because you could actually have two set, you know, arguably the estate claim could be resolved um separately from the wrongful death claim. Though they they are two different elements of damages and arguably they could. Um, I think it would be very rare and probably be a little messy to to to spoil to parse those out. Um, and this is where joint representation of the administrator of the estate as well as the surviving spouse and children um or the beneficiaries of the wrongful death claim can actually I could see it developing into a conflict if it if it can't be resolved through through just a disc like a frank discussion. Um but but to the point where there there actually is a conflict and and your parties your your your jointly represented clients have different interests and different goals. um um that that's where a conflict may prevent you from pursuing the case jointly or jointly representing all of them. Okay. So, this is where the empty seat number three will come in handy for episode two. Absolutely. This is this is where I'm starting to wait into those waters that uh that I would typically rely on a probate attorney to to to say uh to to guide me along the way. For sure. So, what what are some other considerations? Let's go back into uh pre-litigation. Some considerations that people may not think about. Um where by the way I I I probably should have said trigger warning in the beginning of the episode. I I hope that the nonchalants that we're speaking about these topics is not a trigger for anybody that nobody's feelings are hurt. Yeah. I I guess we we we tended we tended to to be a little bit more cavalier when we talk. I mean, obviously we're we're not uh you know, we're certainly aware that that these accidents are tragic accidents are um you know, really emotional times for families um and and they don't they don't come to us, you know, with the same cavalary attitude that we can discuss them with, but I think you know, we're able to talk about them a little bit more objectively and what may feel cavalaryly because we see so many of them. Um and and it's it is fairly common place. doesn't mean that we we've lost the ability to appreciate how how tragic it is and how significant it is for any family to go through this, but um but it is there is a level of object objectivity that's kind of required where you talk about how to handle these types of cases and it's something that you you want and I'm not saying that from sitting in the position of an attorney even if if and when it happens in my own life when I go and I seek counsel I appreciate empathy but I want council to have a level head. I want council to be objective. I want council to know exactly what needs to be done. And that's sort of the purpose of the conversation today so that there's a little bit of insight. One of the worst things is when people, especially in a time of tragedy, when people are faced with things that they had never considered before that would be what was it Donald Rumsfeld? There's things that we don't know that we don't know. And things that we do know that we don't know. And and what's dangerous is the stuff you don't know. what you don't know about what you don't know, right? Most dangerous, right? Which is the and it the and the worst time to find out to know about something that you didn't know that you didn't know about is in a time of tragedy. So hopefully this conversation has people at least exposed at a high level to the concepts that could come up so that they at a minimum they know that they don't know about these things, right? So that when it comes up it's like oh okay well these are things that we need to to learn about and take into consideration get appropriate counsel for I think estate lawyers also preach the same thing is that these are necessary conversations um that are very helpful to have when you're able to to do it uh with a level head when you're a little removed from the the emotions of of these events coming to fruition. So yes, it's morbid for people and people don't like it's not a comfortable thing to think about. Well, how do I plan for um what's going to happen to to my assets, my property, my children, um my things and my relationships after my death. People, it's a very uncomfortable thing to think about just arbitrarily, but um but it's a very necessary thing that if you want things to to happen a certain way, you have to give some thought to that during your lifetime and plan for it. Yeah. And um and so it's it may be uncomfortable, but it's certainly a very helpful and necessary conversation and thought process to go through prior to that. I 100% agree and I'm actually already looking forward. We don't even have the guest lined up, but when that guest sits in that seat, I'm excited for that conversation. Absolutely. So, going back to pre-litigation, I I I wanted to get that disclosure out that I I hope that nobody is upset by the nonchalants and and us being cavalier about the topic, which I don't think we are. We're just not No one's died right now. Correct. We're not dealing with talk about it hypothetically, right? So, going into the pre-litigation example, this is an auto accident case. Let's just pretend it's a surviving spouse situation and we'll leave the other scenarios for when we've got a probate attorney, right? When it's a surviving spouse, the surviving spouse is the person who has signed the intake agreement. When it's time for the firm to receive the settlement check and get the settlement funds for the client dispersed, where does that check go? Who receives the settlement funds? Uh, it would it would be the surviving spouse that that you've got the the relationship with. Now they they would have some to some obligation to to disperse a portion of it to surviving children. Um but that is typically um unless the firm represents all the children. I I think that there's just a level of notice that is that the firm needs to make sure does go out. But um but if there's children that are estranged or um that that are not or that actually have debts to the the estate that can that can be set off um I think there's probably any number of so in that sense it would it would go to the surv surviving spouse if that's the only client that that you've got and um but but the surviving spouse would have to understand that there if there are surviving children um that they may have claims that that they'd have to consider satisfying. I think that we have provided enough of questions. Sure. Enough intrigue uh to get people interested. Hopefully those people that are paying attention uh to get interested into tuning in when we have a probate attorney. So this is the best sizzle reel the entire episode as a sizzle reel. But do you think that there's anything that we haven't discussed in this prequel to the next episode? So I I I think I think one of the things that we see typically is when when a sudden accident occurs um that that takes the life of a family member, it is so much easier to pursue claims on behalf of that family member that if they have a will and they've already thought about who they want appointed as the administrator of the estate and it's somebody that can be objective um not necessarily someone that is um is going to be as emotionally tied in. So, if if you can if you have somebody outside of your family that you trust to be the administrator of your estate, um not necessarily your attorney, but it it can be an attorney. It can be a trustee. It can be somebody um that whose counsel that you value, but someone that you believe um can be entrusted to with that fiduciary responsibility um to to marshall all the assets and make sure that your will is executed in the way that you want. Um, then it's a lot easier to have that if it's if that designation has already been made beforehand to get get the estate set up because often times a lot of what we're dealing with in getting a pro, you know, to have a probate attorney set up an estate or to probate the estate of someone that that died in testate is getting figuring out who amongst different um available family members is going to be the administrator. And it often causes a lot of uh a lot of angst and uh and brings up a lot of tough tough um tensions amongst family members as to who's going to be appointed, who's going to be responsible. We've experienced it on on some cases we've worked on together. Some of the family members don't realize exactly what that representation entails, so they they think that it's worse or somehow they're going to get shut out. Right. Exactly. And and what they don't realize is statutoily that their their claims their their share in in proceeds from from a wrongful death claim are actually protected by statute. Right. But because they they may have a personal conflict with the person, they think that that person is going to somehow prevent them from Exactly. receiving their funds. If you've got problems in your family, you're going to want to tune in to the second part of this when we have a probate attorney, uh, estate attorney, wills and trust attorney on the show. Um, if you are in that field and you'd like to come on to the show, I welcome you. Reach out to us, send us a DM, leave a comment. As always, everyone else, especially mom, share this episode, like the episode. Subscribe. Subscribe. Smash that subscribe button. You're you're good. Click that like button. You're good at this. I don't need just Maddie and my daughters coming on here and teaching me how to get the YouTube engagement up. Yeah, that's it. That's exactly who Arimaya, they they don't have a YouTube channel. They've never posted anything on YouTube, but they know exactly how to end their videos, but it says smash that like button and don't forget to subscribe. As always, we take care of you. Please tune in. Until next time. Take care, everybody. Thanks so much.