One of your family members may have been going through the process of bringing a claim when they passed away. This may have been anticipated, or it may have been unexpected, but one question many people in that situation ask is “can the claim continue once my family member dies?”
The short answer is yes. There are a number of issues that we will need to work out with the surviving family members before we can proceed, but in most cases, it is a simple process for a claim to continue after a person dies.
If your loved one left a Will, it will have named an Executor. This is the person who deals with the administration of the estate. When a person dies, they leave an ‘estate’, even if they left nothing of financial value to pass on. Many people assume that an ‘estate’ has to include property or money, but in many cases, there may only be the anticipated value of the claim that makes up the value of the estate.
If you are the Executor, we will ask you to provide us with a copy of the Will naming you as Executor and we will then transfer the case into your name. You will become the client and the claim will be brought ‘on behalf of the estate of…’ your loved one. Very often, that is all that is required by insurance companies in order to settle a claim. If we are required to issue proceedings, in many cases we will refer you to our Wills and Probate department and they will guide you through the process of obtaining a Grant of Probate. It may be that, if your loved one left anything in their estate that needed to be divided up between beneficiaries of the Will, you will already have obtained a Grant of Probate via the solicitor who drew up the Will in the first place (which may or may not have been Tilly Bailey & Irvine).
If your loved one did not leave a Will, all is not lost. You can obtain Letters of Administration, which do much the same job as a Grant of Probate. Again, we can refer you to our Wills and Probate team who can explain what is involved in obtaining Letters of Administration and can guide you through the process.
If there is a Will, the claim will be brought by the Executor.
If there is no Will, and the person died ‘intestate’, technically anyone who can prove they have legal standing to bring claim will be allowed to apply for Letters of Administration, although it will be a lot harder to prove you have legal standing if you are not a surviving spouse, parent or child of the deceased, or if there are others with better legal standing who may contest your right to bring a claim.
This is an important question because the further on in a claim you are when you pass away, the more likely it is that all of the important evidence will already have been gathered and the easier it will be to settle the claim.
If your loved one died before they underwent a medical examination, we can obtain a medical report based solely on their medical records, but these reports are not as robust as they would be if the medical expert had examined the patient personally.
One other difficulty of bringing a claim on behalf of a deceased Claimant is that they are no longer around to give evidence in support of their claim, so if liability was disputed and we have not yet taken their witness statement, it can be very difficult to proceed with the claim. This is particularly the case in employer’s liability claims and public liability claims. It is less difficult in clinical negligence claims, but it does still make things tricky where liability is not admitted.
The money goes to the estate. Whoever is the Executor or holds Letters of Administration is then responsible for distributing the money in accordance with the Will. If there was no Will and there is more than one likely beneficiary of the deceased’s estate, the money will need to be divided equally between everyone who has a right to a claim on the estate. It is the responsibility of whoever is administrating the estate to ensure that everyone who has a right to some money gets their share.
The best answer is to check with us and let us advise you. If the claim had reasonable prospects of success while your loved one was alive, then their death will not change that. It also won’t change the position if there were no reasonable prosects of success though. It may be that the claim is not worth a great deal of money, and you don’t think that it will be worth the time and costs of getting a Grant of Probate or Letters of Administration just for the value of the claim. We will be able to give you a rough idea of how much the claim might be worth, if you contact us to discuss your rights and obligations once your loved one passes away.
When you instruct us, you can be assured of receiving compassionate, knowledgeable, professional advice and representation from a fully regulated, quality-focused law firm.
For more information, or to speak to our personal injury team, contact us today on 0333 444 4422 or fill in an online enquiry form and someone will be in touch.
Call: 0333 444 4422