Legal Question in Wills and Trusts in New York
Wrongful Death Separate from Probate
My mother, 83, suffered a mild stroke, went into rehab care in a nursing home and died 30 days later of Legionnaire's Disease she contracted there. Her estate is quite solvent because she died so soon, and is actually so uncomplicated, I could probate and settle it without a lawyer, because I am executor and only possible beneficiary. There is no need to pursue wrongful death action to cover estate's debts. Is it necessary in New York State to purse wrongful death as an outstanding claim of her estate, when this would push the estate's value over the $1M mark, its value being about $850K now, subjecting it to death tax, and giving a big cut of the settlement to an estate lawyer? Can I go get a wrongful death specialist on my own to pursue a wrongful death action separate from my mother's estate's probate?
1 Answer from Attorneys
Re: Wrongful Death Separate from Probate
It would be improper for an attorney to provide you with legal advice without having first analyzed all of the facts and circumstances of your particular matter.
However, I will try to provide you with some information.
Proceedings in Surrogate's Court and the wrongful death action are two separate things. First you must be appointed as representative of the estate and then you can go to Supreme Court to pursue the wrongful death claim.
When it comes to money you should keep in mind that every dollar you receive is a dollar more in your pocket. Although NY estate tax may be triggered at $1M, you will receive a percentage of that extra money. Keep in mind that only the amount over $1M are taxed. Furthermore, someotimes you need an attorney to receive those additional assets. Here too, you would receive a percentage.
If you need assistance, you may contact me at (212) 971-1384.
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