Building Legacies that Last Estate Planning and Elder Law

Suing Yourself on Behalf of an Estate

Bigstock-Young-man-holding-a-trash-bin--26453660[1]Estate executors and personal representatives have a duty to the estate to pursue any causes of action that the estate might have, but what if that means they have to sue themselves? A case in Utah answers that question.

If a deceased person or the estate of that person has reasonable legal recourse against some other person or entity, then it is ordinarily the duty of the estate's representative to pursue that action in court. However, a recent case in Utah shows how that can lead to interesting results.

A man died in a one-vehicle accident when his common law wife was driving. The wife was the man's sole heir and was named the personal representative of his estate. In that capacity, on behalf of the estate, she filed a lawsuit against herself for wrongful death. Then, in her capacity as an individual and the defendant in the wrongful death case, she moved to dismiss the case on the grounds she could not sue herself.

The trial court dismissed the lawsuit.

The grounds?

Public policy prevents someone from suing themselves.

However, the Utah Supreme Court reversed that and allowed the wrongful death lawsuit to continue.

The Wills, Trusts & Estates Prof Blog discussed this case in "Case Summary on Suing Yourself as Personal Representative for Wrongful Death."

At first glance, this might seem ridiculous and pointless, since the woman is the sole heir. Even if the estate collects money from the lawsuit, it would just go to her. However, there are a couple of things that could be going on here.

Before any heirs receive their inheritances from the estate, any debts of the deceased have to be paid. It could be that the estate cannot cover the man's debts, unless judgment is obtained against the woman.

Another possibility is that the woman had insurance at the time of the accident. In that case, the insurance company might be required to indemnify her if she is held liable for wrongful death.

Thus, the estate would not really be collecting from her. It would be collecting from the insurance company.

Reference: Wills, Trusts & Estates Prof Blog (Dec. 22, 2016) "Case Summary on Suing Yourself as Personal Representative for Wrongful Death"


When a Relative Is Missing

Bigstock-Beautiful-woman-looking-throug-20311445[1]If a loved one has been missing for a long time, it is possible to have him or her declared deceased so that an estate can be administered.

You might have seen a television documentary or a movie about someone who disappears. With hundreds of channels in need of content the genre is a popular one. The stories normally focus on trying to piece together the clues about what might have happened to the person who vanished.

What they do not tend to describe in much detail is what happens to the person’s property. The property cannot exist in a legal limbo forever waiting for the owner to return as that might never happen.

A recent case out of Missouri helps to answer that question as ABC 17 News reports in “Family of missing man files petition to establish presumption of death.”

Charlie Bell disappeared in 2011. He was last seen riding his motorcycle. The police believe he was murdered based on witness testimony, but Bell’s body has never been found to confirm it.

His family is now asking a court to issue an order presuming that Bell passed away. If granted, the order would allow Bell’s estate to be administered.

Every state has a similar procedure in place for these types of cases.

When a person has been missing for a certain length of time, which varies from state to state, a court upon application can issue an order presuming death and allowing the administration of the estate.

Reference: ABC 17 News (Sept. 22, 2016) “Family of missing man files petition to establish presumption of death.”