Personal Injury Law

In Case of Death - Part 5

By Gerry Oginski

Q: When you settle a death case, how soon can the family obtain the settlement money?

A: The quick answer is soon. The longer answer is, 'it depends.'

In a death case, your New York lawyer will have to prepare papers to let the Surrogate's Court (that's the court that is responsible for overseeing a person's estate) know what is happening. Your lawyer will have to let them know about the settlement, and has to include many supporting documents showing and explaining why a case has settled for the amount it did.

Some of the supporting papers include:

1. An affidavit from the person who represents the estate (usually a family member),
2. An affirmation from the attorney explaining in detail how and why this settlement is appropriate,
3. An accounting that shows exactly how much money was spent on your case, and what the attorney's fees are, and what monies are to be distributed,
4. Funeral bills,
5. Liens (a promise to re-pay Medicare or Medicaid, for example),
6. A document called a 'Waiver & Consent', which means that each family member who is entitled to receive a share of the money agrees to the proposed settlement and distribution.

These are the main documents that must be sent to the Court. Depending upon how quickly your lawyer can prepare them, and send them to the family members for signature and get them returned will determine how quickly your attorney can get file them with the Court for approval.

In some cases, a family member might not be able to be located, and this will inevitably delay getting final approval. In other cases, a family member might not agree to the settlement or the way in which we propose to divide the settlement proceeds. In that instance, that family member must object to our papers, and the Court will hold a hearing on this issue. Again, this will delay the final approval of the final settlement.

In addition to the procedure described above, there is a new provision in the Surrogate's law that allows the attorney to apply to the Trial Court where the case was settled. The attorney asks the Courts' permission to obtain the settlement monies, and if approved, the money is deposited into an interest-bearing escrow account.

From that amount, the attorney's fee and his expenses can be paid, together with any other immediate expenses that the family members have incurred (such as funeral bills and/or medical bills).

Once that happens, the matter transfers back to the Surrogate's Court where your lawyer must ask for final approval for distribution of the settlement proceeds.

The final answer is that the attorney will process the paperwork as quickly as possible and submit the necessary papers to both the Trial Court and the Surrogate's Court, assuming there is no delay in getting the papers back from the family members. There is always the possibility that despite the best intentions of the family members and the attorney, a court clerk deems the papers to be inadequate or missing information.

In that case, additional paperwork must be obtained and completed and again submitted to the Court. Once all papers have been successfully submitted to the Court, the Trial Court has 60 days to either agree or disagree with the settlement. The Surrogate's Court on the other hand does not have a fixed amount of time within which to provide final approval.

Most surrogate's courts do make efforts to finalize these matters knowing that family members are expectant and anxious to conclude these legal proceedings.

Once the Surrogate's Court has approved the settlement, all final closing papers are submitted to the insurance company, and they must make payment within 3 weeks (if they haven't already made payment, and that money is sitting in an interest-bearing escrow account).

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice and injury casesfor over 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 200 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something for you. http://www.oginski-law.com 516-487-8207

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http://medicalmalpracticetutorial.blogspot.com

Full post as published by New York Medical Malpractice Blog on November 14, 2007 (boomark / email).