Intersection of Personal Injury Matters and Probate
Author – Tony C. Rossi, Esq. Law Offices of Brady, McFarland & Lord, LLC
Co-Author – Christopher Nicolaysen Springs Law Group, LLC
There are many times when personal injury matters involve probate rules and procedures. In many circumstances, the trial court in a personal injury case cannot approve a trust, for example a special needs trust, for a minor or a person who is incapacitated. In most cases, probate court approval is also necessary. The original court often retains jurisdiction and requires approval of distributions. A budget will be submitted and approved by the court so that future court approval is only necessary for certain changes.
When a person who was injured in an accident is to collect payments after the settlement of a case, a ruling on a petition provides the insurance company or defendant with final court approval of the terms, conditions, and amount of the payment, as well as an order authorizing and binding a fiduciary to provide a receipt for the payment and sign a binding release.
Additionally, a guardian or conservator may need to be appointed for a minor or incapacitated person during a personal injury matter.
When an adult is incapacitated because of an illness or an injury, and not able to make decisions regarding his/her care, a Colorado probate court will appoint someone to make those decisions for the incapacitated person. Those individuals are called guardians and conservators and they are also involved in properly caring for elderly people or disabled children to make sure family members and caretakers.
If a family member or friend dies as a result of an accident or because of another person’s negligence, there are deadlines by which time the family or estate representative needs to file certain documents if they desire to seek monetary damages from an insurance company or a defendant.
The surviving spouse of a deceased person is the only person who may file a wrongful death claim in the first year after the death. After the first year after the death of the deceased person, either the surviving spouse or the surviving children of the decedent are allowed to file a claim.