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My question involves and estate where the decedent's death…

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My question involves and estate...
My question involves and estate where the decedent's death was likely caused by negligence. The estate has a survivorship claim and the decedent's children have wrongful death claims. There are no beneficiaries of the estate other than the decedent’s children (who also have WD claims). But some of the children are not included in the will and are not beneficiaries of the estate. All claims must be brought in the same action. The applicable state's model special verdict form asks the jury to award damages separately to the estate and separately to each of the wrongful death claimants. So far so good. But what about allocating damages in the event of settlement? The PI attorney who is willing to take the case wants to, in effect, ignore the estate and the fact that the lawsuit includes a survivorship claim, and have the children agree up front to divide any settlement equally. The children are willing to divide any settlement amount allocated to wrongful death equally but, understandably, children who are beneficiaries of the estate believe any settlement should be allocated between WD and a survivorship, as the latter passes to the estate and is divided according to the will. I do understand that such an allocation in a settlement agreement might put the PI attorney in a difficult spot as he represents everyone. Can you tell me how this situation is usually resolved? Do settlement agreements in this kind of case often include an allocation between amounts payable to the children and amounts payable to the estate? I appreciate any guidance.
Submitted: 2 years ago.Category: Estate Law
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Answered in 9 hours by:
6/19/2015
Estate Lawyer: ScottyMacEsq, Attorney replied 2 years ago
ScottyMacEsq
ScottyMacEsq, Attorney
Category: Estate Law
Satisfied Customers: 18,110
Experience: Licensed Texas General Practice Attorney
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Thank you for using JustAnswer. Can you tell me what state this is in?
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Customer reply replied 2 years ago
Hello, thanks for your attention. This is in the State of Washington. Roger
Estate Lawyer: ScottyMacEsq, Attorney replied 2 years ago
Thank you.
Can you tell me how this situation is usually resolved? - First of all, as all decedent's children have claims as well as the estate, each one would need to agree to any settlement (assuming that this is not a class action case, which it certainly doesn't appear to be). A settlement can go forward only if all the parties agree. If there's one holdout, the settlement can move forward in respect to everyone else that agrees, but the holdout can continue to take it to court. So if all the parties agree on the distribution, then it would go forward. And as such, the distribution between estate and descendants would likely mirror what would be seen at court. There's no straight line percentage as to what an estate would get and what the descendants would, as it completely depends upon the claims, the strength of the claims, etc... Again, each party has a "veto", essentially.
Do settlement agreements in this kind of case often include an allocation between amounts payable to the children and amounts payable to the estate? - Yes. They're typically allocated in relation to what would likely have been the allocation in court, again, considering the facts, relationships, etc... A party doesn't have to agree to a settlement, but needs to understand that what is received in court could easily be less (or more) than what would be received be in the settlement. It's a risk to take it to court, but that risk could pay off (or could not).
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, ***** ***** luck to you!
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