My husband passed away in 2008. But a few months before he died, he was involved in a car accident.

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My husband passed away in 2008. But a few months before he died, he was involved in a car accident.

The person he hit with his car sued him this past summer, starting first with our insurance carrier, and declined their offer to settle, and is now suing the estate. The estate is currently in probate and will be settled within the next month. If the estate gets settled before the case gets settled, can the person suing come after my husband’s heirs for the settlement? Will the probate be able to be completed while the case is open?

Asked on April 12, 2009 under Estate Planning, Idaho

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

No, he can't sue the heirs -- you didn't cause the accident. I.e., anyone can sue anyone but either the court will kick out for suing the wrong defendant -- simple motion should do.  In terms of lawsuits, do you have a probate attorney? If so, he/she can help you curb any issues. 

The estate/probate won't finish if there is an open lawsuit.  In terms of declining the offer to settle, your insurance company requires a duty of good faith and fair dealing.  Further, often your insurance company hires an attorney at no cost to you to settle this, especially if you are personally sued.  Nothing precludes the insurance company from upping the settlement offer.  Call the insurance company and demand your counsel and that they negotiate this out. 

 

TITLE 5
PROCEEDINGS IN CIVIL ACTIONS IN COURTS OF RECORD
CHAPTER 3
PARTIES TO ACTIONS
5-327.Personal injuries -- Property damage -- Death of wrongdoer -- Survival of action. Causes of action arising out of injury to the person or property, or death, caused by the wrongful act or negligence of another, except actions for slander or libel, shall not abate upon the death of the wrongdoer, and each injured person or the personal representative of each one meeting death, as above stated, shall have a cause of action against the personal representative of the wrongdoer; provided, however, the punitive damages or exemplary damages shall not be awarded nor penalties adjudged in any such action; provided, however, that the injured person shall not recover judgment except upon some competent, satisfactory evidence corroborating the testimony of said injured person regarding negligence and proximate cause.

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