Father had accident then died from something else

What is the name of your state? CA. My father was in a car accident almost one year ago Nov 2001. He was being treated for injuries up until June 2002. In June he was hospitalized and for cancer. My father died in July. Is there anything that we can do? Is my mother intitled to his claim? Help please

[I AM ALWAYS LIABLE]

Originally posted by LLG
What is the name of your state? CA. My father was in a car accident almost one year ago Nov 2001. He was being treated for injuries up until June 2002. In June he was hospitalized and for cancer. My father died in July. Is there anything that we can do? Is my mother intitled to his claim? Help please

My response:

Yes, she is entitled to continue his claim. Since your father died before final adjudication of his claim, his injury cause of action "survives" to the estate and may be prosecuted by a duly appointed executor or administrator for the estate for lost wages, loss of future earnings, and property damages. (If there is no executor or administrator, the action may be prosecuted directly by your father's "successor in interest"- - i.e., the beneficiary of your father's estate or other person who succeeds to the cause of action.) [Ca Civ Pro §§ 377.11, 377.30; see Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1521-1524, 37 Cal.Rptr.2d 810, 814-816 and Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1443-1444, 111 Cal.Rptr.2d 534, 542-543]

However, the scope of your father's potential settlement or potential judgment may NOT include damages for his pain and suffering, disfigurement, or punitive damages as the result of the car accident. [Ca Civ Pro § 669; Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1404, 49 Cal.Rptr.2d 256, 260 and Whelan v. Rallo (1997) 52 Cal.App.4th 989, 992-996, 60 Cal.Rptr.2d 876, 877-879]

If your mother, or the duly authorized Adminstator or Executor of your father's Estate, has not yet filed a lawsuit, California law allows an extension of the Statute of Limitations for up to one year AFTER the date of your father's death to file such lawsuit - - regardless of the date of the accident.

IAAL

Thank you. There is no estate.

[I AM ALWAYS LIABLE]

[quote]Originally posted by LLG


"There is no estate."


My response:

Now there is - - from your father's accident claim. Your Mom needs to see a Probate attorney to file a Petition for Probate due to the potential for "damages" going into your father's Estate, and to obtain permission (orders) from the court to be allowed to continue your father's claim.

IAAL

can we create the estate/probate ourselves or do we need an attonery??

[I AM ALWAYS LIABLE]

[quote]Originally posted by LLG
[b]



"can we create the estate/probate ourselves or do we need an attonery??"

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My response:

Are you familiar with Probate law?

No?

Then I would heartily recommend and advise that you use the services of a local Probate attorney.

IAAL

thank you IAAL

[I AM ALWAYS LIABLE]

[quote]Originally posted by LLG


"thank you IAAL"


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My response:

You're welcome. My condolences to you, your Mom and the rest of your family. I'm sure your father was a good man, and that he is sorely missed by all.

IAAL

This has been a roller coaster ride for us. My parents where together for 53 yrs and were never married. California does not concider common law marriages. So she is not entitle to non of his Social security. so will this be another twist because of this? I forgot to mention this......

[I AM ALWAYS LIABLE]

Originally posted by LLG
This has been a roller coaster ride for us. My parents where together for 53 yrs and were never married. California does not concider common law marriages. So she is not entitle to non of his Social security. so will this be another twist because of this? I forgot to mention this......

My response:

This is just another reason why you need an attorney, because his Death Benefits from SSI (if they haven't already been paid) are a part of his Estate. Unfortunately, your mother and father made a mistake by not getting married. Your mother, however, may be entitled to "putative spouse" status, but that's a long shot. You, on the other hand, and because they were unmarried, are your father's "successor in interest" and have the "legal standing" to carry on with your father's Estate in all of these matters.

Good luck to you, and call a Probate attorney (or two) on Monday to get this ball rolling.

IAAL

will call probate attorney (s) on monday. Thanks for your help, I have always looked up to you and your opinons......

IAAL;

In this case wouldn't the unmarried survior be entitled to 1/2 of anything, house, car, stocks property, where both names are listed as owner?

That was my understanding that joint property is still joint property and it has to be settled or disposed of.

And even if he didnt have a will she would still be entitled to 1/2 the value.

[I AM ALWAYS LIABLE]

[quote]Originally posted by gooberitiz
[b]IAAL;

In this case wouldn't the unmarried survior be entitled to 1/2 of anything, house, car, stocks property, where both names are listed as owner?

MY RESPONSE:

Good question. If our writer's father and mother, although unmarried, were "jointly named owners" of real and/or personal property, with "right of survivorship", then yes, it makes no difference whether they were married. But, our writer said that there was no Estate, leaving me to believe there were no "joint" car, bank account, or real property ownerships.

But, this is another reason why our writer needs to consult with a Probate attorney to discuss her father's Estate in depth, and to make determinations of who is entitled to the rest of the Estate, and to carry on with her father's auto accident claim.




And even if he didnt have a will she would still be entitled to 1/2 the value.

MY RESPONSE: Not when you're unmarried. If he didn't have a Will, and unless there was jointly owned property, and unless our writer's mother can obtain "putative spouse" status, then our writer is the one with "legal standing" to inherit, and to "step into the shoes" of her deceased father with regard to Social Security and the auto accident claim.

For example, if there was a car and it was only in the father's name, under these facts, our writer could very well be "the successor" to that car - - however, in order to get the title changed, she would need to go through the Probate process and receive court orders concerning the car and its ownership papers changed.

IAAL

yes everything was in both names, car, house, bank. I was going to take my fathers name off the deed of the house, can i do that?

[I AM ALWAYS LIABLE]

[quote]Originally posted by LLG


"yes everything was in both names, car, house, bank"


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My response:

Well, that makes a huge difference, and tells me that you made a mistake in saying that there was no Estate!

Now, you REALLY need the help of a Probate attorney, more than ever!

And, while you and Mom are at the attorney's office, don't forget to have Mom discuss making a Will of her own. Wills, in most respects, makes life a lot easier for those who are left behind.

IAAL