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Can you sue a decedent’s estate?

You were in a terrible collision involving a negligent driver who was seen talking on his phone just before he hit you head-on. You broke your arm and collarbone, leaving you in serious pain and preventing you from working at your data entry job. You want to sue the driver, but he was killed in the accident. What are your options for filing a personal injury claim?

Under New York law, if another person injures you, then you can pursue a personal injury claim even when that person is deceased. Their estate will likely have an executor or personal representative to defend it against your claim for medical costs, lost wages, pain and suffering, and other losses related to the accident.

Deadlines for filing a claim

The deceased driver’s estate will usually need to go through probate before you will be able to act on your personal injury claim against it. Probate is the process during which the estate is divided to distribute inheritances and bequests and pay off debts. Your claim makes you a possible creditor, and when it is settled or won at trial, the estate will have to pay the amount due to you like any other debt. You just have to make sure that you protect your claim by meeting the probate court deadlines.

In New York, most personal injury cases have a statute of limitations that gives you three years to file a lawsuit against those responsible for your injuries. With a deceased defendant, a creditor must present their claim within seven months from the date that the Surrogate’s Court authorizes the executor or representative to assume control of the estate. If you fail to do so, then the executor will not be liable for any distributions they made in good faith before becoming aware of your claim.

Anyone who makes a claim against an estate in New York must do so in writing and include both the amount of the debt and a statement of facts that support your claim. This information must be delivered in person to the estate representative or by certified mail with return receipt requested. If you don’t comply with these requirements, then it may be difficult to enforce your claim if the estate doesn’t pay.

If you are injured by a negligent party who passes away at the scene of the accident or soon after, then contact a New York personal injury attorney who can help you file a claim against the estate after it has been probated. Although an estate can be sued like a person, there are certain legal formalities that must be observed, and your attorney will give you the advice needed to pursue compensation correctly.

Jayson Lutzky has over 35 years of experience practicing law in New York State. He has an office in the Morris Park neighborhood of the Bronx. If you or a loved on was injured, then you may be entitled to receive compensation for damages such as lost wages and pain and suffering. Call 718-329-9500 to set up a free in-person consultation with Mr. Lutzky. He has helped recover millions for his clients over the years and offers home and hospital visits in the case of serious injury.

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