Florida Probate Blog
Due Diligence for Personal Injury Attorneys Handling Minor Settlements and Wrongful Death Cases
Success, in so much of the work we do as attorneys, rests on how prepared we are. Handling a personal injury case involving probate and guardianship is no different. Even the best civil trial attorneys can find themselves in a nightmare when stepping out of their area of expertise and representing their client in probate court. I’ve seen so many, otherwise simple cases, go awry, not only when I served as the Probate and Guardianship Trial Court Staff Attorney for the Eighth Judicial Circuit where I reviewed thousands of petitions, but also when my firm has been hired to pull a case out of the mud for an injury firm. The following tips are meant to help you know what to anticipate if you choose to handle the court approval, guardianship or estate administration for a personal injury client, so you can adequately prepare and avoid disaster.
Step 1: BEFORE You Get Involved
Before you get involved in a probate or guardianship case, make sure you understand the Florida Probate Rules and Chapters 731-735 and 744 of the Florida Statutes. Relying on figuring it out as you go along is a recipe for disaster in the courtroom. It leaves you ill prepared to mitigate potential issues or anticipate the court’s concerns. This means best case scenario, it’s going to be a good while longer before you get paid, and worst case scenario, you expose yourself to liability, have the judge remember your name for all the wrong reasons, or make sure client question if they picked the right lawyer.
So, you don’t want to just sort of know the rules, you need to have a working knowledge of the rules. It’s sometimes easier to think of this in the reverse – what would you say to a probate attorney whose sort of knows how to handle a personal injury case? As an experienced personal injury lawyer, you know there is much more to it then writing a demand letter and waiting for a check in the mail. As an experienced probate attorney, take my word for it, there’s much more to it then filing some pleadings and waiting for an order. Do your due diligence and understand the rules, before you get involved.
Step 2: DURING the Case
Now that you understand how probate and guardianship law works, learn your court’s specific preferences. By “your court”, I mean whichever court will have jurisdiction over the specific case at hand. You are probably familiar with different civil judges having their own preferences, like whether you can call in for certain hearings, how to send proposed orders, et cetera. However, unlike general civil cases, you have to know the probate court’s preferences and the individual judge’s preferences, which vary from circuit to circuit. In probate, it’s very common for each circuit to have additional requirements that hold equal weight with requirements in the Florida Probate Rules or Florida Probate Code. For instance, the eighth circuit requires notice to AHCA and the sixth circuit does not waive bond requirements. The only way to get it right the first time is to understand the circuit’s unique preferences.
Step 3: AFTER the Personal Injury Portion is Resolved
So you learned the ins and outs of probate and guardianship law and how your circuit uniquely interprets and applies the code and you successfully obtained court approval or letters of administration without a hitch. Congratulations! Now you can move on to your next injury case, right? Not so fast. It’s key to make a plan for how your client is going to comply with their responsibilities moving forward. The only case that has no maintenance after the court approves the settlement is a stand-alone court approval for settlement of minor’s claim that did not require a guardianship. On the other hand, minor guardianships can often remain open for up to 15 years and estate administrations can often last 2 to 3 years. The court requires routine filings in order for the case to remain compliant with the Florida Probate Code (i.e. accountings, annual plans, inventories, various periodic notices, status reports, etc.). Do your due diligence in devising a plan to help your client keep up with the legal duty they now have. Leaving them to figure it out on their own can subject them to criminal culpability and come back to haunt you when there’s nothing left to do but stand before the judge with your tail between your legs.
While it might seem simple to handle the probate and guardianship that intersects with your injury cases, you have to be deliberate and take the steps necessary to prepare for success in probate court. Make sure you really understand the probate code and rules, along with your circuit’s unique requirements. Once you’ve got that down, be sure to make a plan for how your client will maintain their legal responsibilities going forward – will you continue to represent them as the guardian or personal representative, or do they need to hire a probate and guardianship attorney? If you follow these steps, you’ll have success in probate court.
What Now?
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If you don’t feel like you can adequately prepare, either because your workload is too full or you feel your time is better spent investing in new or existing cases, let us help you. Call (352) 354-2654 to discuss your child injury claim or wrongful death claim today.