If a plaintiff or defendant dies during litigation, or there are allegations of medical malpractice, negligence, or wrongful death giving rise to a potential cause of action, a fiduciary must be appointed to either continue or initiate the lawsuit on behalf of the estate.

When a party dies during the pendency of litigation, the matter is generally “stayed” by the Court, meaning the action is temporarily frozen until a representative is appointed and appropriate steps are taken to restore the matter to the active calendar. Because the stay cannot be lifted until a fiduciary has been appointed, obtaining the appropriate Letters is often the first order of business.

Whether the lawsuit is the sole asset of the estate or merely one of several estate assets, a representative must be appointed to act on behalf of the decedent’s estate and, ultimately, to collect and distribute estate assets.  In some instances, additional estate assets may exist outside the subject lawsuit and require collection and distribution to the decedent’s distributees.  Whether litigation counsel is willing or able to assist with those matters often depends upon the attorney’s familiarity with Surrogate’s Court practice. Because negligence attorneys primarily practice in the Civil, Supreme, and U.S. District Courts, many choose to engage experienced Surrogate’s Court support when estate administration issues arise during the course of litigation.

Without proper Surrogate’s Court guidance, estate matters can remain pending for months—and sometimes years—while necessary procedural issues are addressed.  Because the underlying litigation cannot proceed or conclude until a representative has been appointed and appropriate authority has been obtained, delays in the Surrogate’s Court often result in delays in the litigation itself, including the collection and distribution of settlement proceeds.

Assets may include real property, personal property, bank accounts, brokerage and investment accounts, transferable pension benefits, insurance proceeds payable to the estate, and other property interests.  Assets with designated beneficiaries typically pass directly to the named beneficiary upon presentation of the institution’s required forms, an original death certificate, and appropriate identification.  However, when no beneficiary designation exists, those assets often become part of the estate and must be addressed through an Administration proceeding.

Prior to appointment, this individual is often referred to as the proposed Administrator.  Following appointment, the individual becomes the named Administrator.  [Historical Note: In earlier legal practice, a male fiduciary was referred to as an “administrator” while a female fiduciary was referred to as an “administratrix.”  Modern practice has abandoned this distinction, and all fiduciaries are now referred to as Administrators regardless of gender.]  In many negligence, medical malpractice, and wrongful death matters, counsel requires only the authority to prosecute the litigation.  In such circumstances, the Surrogate’s Court may issue Limited Letters of Administration or, depending upon the county, Letters of Administration with Limitations.  While terminology may vary, the purpose is generally the same: to authorize the fiduciary to pursue the litigation without granting unrestricted authority over all estate assets.

Determining who is entitled to receive Letters is not always straightforward.  Family structures frequently involve multiple marriages, multiple relationships, marital and non-marital children, predeceased distributees, unknown heirs, questions concerning paternity, and other kinship issues that must be addressed before a fiduciary can be appointed.  As a result, attorneys often find themselves navigating Surrogate’s Court procedures involving family trees, distributee determinations, kinship investigations, Waivers and Consents, Citations, and other supporting documentation necessary to establish who is entitled to serve as fiduciary and who may ultimately share in any recovery.

In many cases involving Limited Letters, the decedent died without significant probate assets, and the pending lawsuit may be the estate’s primary or sole asset.  In such situations, the authority granted by the Court is often limited to prosecuting the action and does not necessarily authorize the collection or distribution of settlement proceeds.  Whether additional Surrogate’s Court proceedings will be required often depends upon both the county in which the proceeding is pending whether the cause of action in which the case settled included wrongful death.