QUESTION
I own a business, I am being sued for a fall and my husband died recently and opposing Attorney opened estate on him can he do that?
Asked on Nov 29th, 2012 on Personal Injury - California
More details to this question:
Business is a bar...how can this Attorney open an estate in my husbands name?
15 ANSWERS
Ronald A. Steinberg
This can be complicated, and I will try to not confuse you with the answer. If the business at the time of the accident was a sole proprietor-ship, then in order to sue it, the injured party had to sue your husband. If he was dead when suit was filed, then an estate had to be opened in order to serve process on the business (your husband). If your husband had premises liability or business insurance (no, not liquor liability insurance), then you turn the court papers over to the insurance company and they will handle it. If your husband did NOT have premises liability insurance, then you need a liability attorney AND a probate or business attorney. I say that because there may be some probate defenses; there may be some business defenses. If not either of these, then you need a defense attorney to just defend the premises claim. The injured party has to prove 1) that there was a defect, 2) that your husband knew of it in advance of the accident, or that it existed for an unreasonably long period of time before the accident so that he should have known about it, and 3) that the injured party COULD NOT DISCOVER IT ON THEIR OWN. If the injured party was not paying attention, then it is their fault. If alcohol consumption played a part in the happening of the accident, then the injured party will be barred from any recovery.
Answered on Dec 05th, 2012 at 1:14 AM
Personal Injury -- Plaintiff Attorney serving Cleveland, OH
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Mishkind Law Firm, Co., L.P.A.
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If your husband died and he was an owner of the business and no estate has been opened up until now, the only way that he can be sued is to open an estate to be able to sue his estate. Since he has died, the only way to get to his assets is to have a representative appointed as the legal representative to proceed with a claim against his estate. You should talk directly to an attorney about this.
Answered on Dec 02nd, 2012 at 10:31 PM
For purposes of pursing the personal injury claim he can and should. But ask your attorney.
Answered on Dec 02nd, 2012 at 10:17 PM
Plaintiff Animal Bites Attorney serving Missoula, MT
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Bulman Law Associates PLLC
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If no one else with priority, like you, doesn't, then yes. Your husband should have had general commercial liability insurance with premises coverage on the bar, even if it was leased space. The claim should be sent to your insurance agent immediately. If there was no insurance, who owns the bar now? License? You need to find a business lawyer to sort it out before the opposing attorney defaults your husband's estate in court.
Answered on Dec 02nd, 2012 at 3:19 PM
Contact your local probate court and to find out the details of why your husband's estate was opened. However, you should consult with a probate lawyer for specific legal advice and/or assistance.
Answered on Dec 02nd, 2012 at 3:04 PM
Daniel P. Mitchell
Yes. He can do that. However, as the widow, you are entitled to priority in terms of appointment as personal representative. You should consult an attorney. More importantly, if you have insurance, you need to make sure you have reported the claim to your insurance company.
Answered on Dec 02nd, 2012 at 3:02 PM
Personal Injury Attorney serving Charlotte, NC
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Paul Whitfield and Associates P.A.
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Not enough info here. if your husband was owner or part owner and the lawyer has sued his estate that may be one situation , normally the spouse is in control of the opening of an estate of her husband.
Answered on Dec 02nd, 2012 at 3:00 PM
Employment Law Attorney serving Beverly Hills, CA
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Dordick Law Corporation
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If you did not open one, he can do so for his client's claim. Any estate valued at over $100,000 requires probate. It is not NET value, it's the value of the assets. Surely the bar is worth more than $100,000. Presumably the bar had insurance. You need to report the suit to them ASAP if you have not done so already.
Answered on Nov 30th, 2012 at 8:12 PM
Chapter 7 Bankruptcy Attorney serving Syracuse, NY
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Andrew T. Velonis, P.C.
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He can open the estate, but he can't be the administrator.
Answered on Nov 30th, 2012 at 8:07 PM
Criminal Defense Attorney serving Anderson, SC
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The David F. Stoddard Law Firm
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The personal representative named in a will, or the next of kin (you) has priority to open an estate. However, if the person who has priority does not open the estate, and another interested party (another heir, or a creditor [ie., the attorney's client]), can open an estate. Once another interested party opens the estate, the person having priority, or another interested person, can object to the appointment of personal representative, and ask the court to appoint the objecting party (or someone else) personal representative. If someone has a claim or lawsuit against your deceased spouse, they must sue the estate. If no one opens and estate, they can. I don't do much probate law (I'm more personal injury), but this is how I understand it to work.
Answered on Nov 30th, 2012 at 4:10 AM
Steven D. Dunnings
Hire an attorney
Answered on Nov 30th, 2012 at 4:10 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I am not certain, but I would bring it to the attention of the attorney who is representing the bar in the suit. Generally, when a party dies during the course of a lawsuit their estate is substituted in as the party defendant.
Answered on Nov 29th, 2012 at 7:02 PM
Civil Litigation Attorney serving Seattle, WA
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The Law Office of Edmund P. Allen Jr., PLLC
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He can open an estate for the purpose of proceeding with a lawsuit against the estate. Your business insurance should handle all the defense of the lawsuit however.
Answered on Nov 29th, 2012 at 7:02 PM
Do you have insurance for the business? If you do, you need to report this suit immediately and the insurance company will retain a lawyer on your behalf to defend the claim. The specific answer to your question is: It depends. In some cases, any interested person can open an estate even when that person is financially interested in the assets of the estate. Whether this should be of concern depends on a number of factors, including whether there are any assets in the estate or which may later come to the estate (such as your late-husband inheriting from one of his relatives). You need to sit down with a lawyer to evaluate the situation carefully and decide how best to proceed.
Answered on Nov 29th, 2012 at 7:02 PM
The estate is probably opened solely for the purpose of bringing the lawsuit. Was the bar a dba; sole proprietorship? In order to get to the insurance (assuming there was some) and the insurance was under your husband's name, an estate has to be opened because you have to sue the person (or his estate) to get to the insurance policy. Do you have an attorney representing you? Did you have insurance on the bar? The insurance company should be giving you a defense. You should talk to your insurance carrier or an attorney quickly if you want to avoid a judgment, if possible.
Answered on Nov 29th, 2012 at 7:01 PM