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KENTUCKY ESTATE INVOLVED IN WRONGFUL DEATH LAWSUIT & POTENTIAL CONFLICTS OF INTEREST — what to do if the estate needs to sue the personal representative ?

Uncategorized Feb 3, 2014

A recent   estate  case    from Kentucky involves two   wrongful death lawsuits   regarding the untimely death of a minor who perished in a motorcycle accident — involving    estate litigation    and    conflicts  of  interest.

FATHER’S WRONGFUL DEATH LAWSUIT – sues daughter’s mother

  • Kira died in a motorcycle accident .
  • Kira’s father sued, filing a #WrongfulDeathLawsuit on July 21, 2011 for
  • loss of affection, and companionship” of his minor daughter and for punitive damages

Kira’s father sued an auto dealer, the motorcycle driver and his daughter’s mother !

ESTATE’S WRONGFUL DEATH LAWSUIT

At the same time,

  • a #ProbateEstate was opened up and
  • there was an ongoing #WrongfulDeathLawsuit filed by Kira’s #estate
  • Kira’s mother was appointed #EstateExecutor, or what we call in Florida call the #PersonalRepresentative of the estate.
  • She filed a #wrongfuldeathlawsuit only against the driver.

FATHER DEMANDS THAT ESTATE SUE THE MOTHER

Kira’s father sent a demand to Kira’s mother:   sue yourself   That’s correct:

  • Kira’s father wanted Kira’s mother, in her #fiduciarycapacity as #estateadministrator, to sue herself — in her individual capacity.
  • He also wanted the estate to sue the driver for #punitivedamages
  • The estate refused

FATHER WANTS TO AMEND HIS #WRONGFULDEATHCLAIM

Kira’s father sought court approval to amend his #wrongfuldeathlawsuit.

He wanted to bring claims on behalf of the estate which Kira’s mother refused to bring.

Under local law, he was allowed to amend his #wrongfuldeathlawsuit.

In Florida, a #WrongfulDeathLawsuit may only be brought by the #PersonalRepresentative of the #FloridaEstate.      If there is #estatelitigation with a fiduciary, like the #personalrepresentative, a     special estate administrator    or personal representative can be appointed for the limited purpose of handling the #wrongfuldeath.

FATHER ASKS FOR TRIAL — new estate executor appointed to handle #estatelitigation and #EstateAdministration

A bank or #trustcompany was appointed the new #executor of the estate,  but they had not yet sued Kira’s mother, as the father wanted.    The father wanted a trial.    A stay had been issued because there were now 2 #wrongfuldeath cases pending.

FLORIDA LAW PERMITS EXECUTOR TO RETAIN ATTORNEYS AND INITIATE LITIGATION

Under Florida law, a #FloridaPersonalRepresentative is entitled to retain #Floridalawyers and to have the Florida lawyers paid from the #FloridaEstate as an expense of administration    –   as long as the #legalfees are   reasonable.

Florida #executors are required to gather assets and exercise rights, including filing a lawsuit if one is advisable.    Often, the #Floridalitigators, hired to file a #wrongfuldeathlawsuit, may be different than the #FloridaProbateAttorneys you hire to handle the #FloridaProbate issues.

PERSONAL REPRESENTATIVES AND CONFLICTS OF INTEREST

How do you handle it when you are an #executor or a    #FloridaTrustee    and the    #FloridaEstate   or the     #FloridaTrust    has to sue yourself  ? You can’t be an executor or #personal representative and also a defendant: you have to resign your fiduciary position or you need to have an independent, objective third party appointed by a #FloridaProbateCourt to deal with the claim or litigation. Or possible claims or potential litigation.    Remember: #ConflictsofInterest and #SelfDealing must be avoided and if they occurred, they need to be corrected.

In this Kentucky #WrongfulDeathCase, the court stayed the matter, giving the new #executor time to file a lawsuit against Kira’s mother, hinting that if the new #personalrepresentative did not do that, Kira’s father may be able to.