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.