By: Gerald (Jerry) Gaggini
A widow contacted me and asked if I could open an estate for her late husband. The husband had no other assets except a pending lawsuit for asbestosis related injuries. Because of his illness the husband had not been able to work in a long time. The couple had emptied their bank account and depleted all their savings paying for food and rent.
Sadly, it happens; a person who has suffered injuries from exposure to asbestos, or other toxic chemicals dies before their lawsuit is finally settled. Maybe their death occurs shortly after the claim is filed, or just before the settlement check is sent. In any case, a representative must be appointed. In Mississippi, this means you must hire an attorney to probate the estate.
You may wonder why this is necessary. When the claimant (plaintiff) dies, his or her claim can only be continued by the proper representative. According to the Mississippi Rules of Civil Procedure this is a “Real Party in Interest”
“Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his representative capacity without joining with him the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”
As you see from the above Code section, a judge must determine who is the “real party in interest.” This is accomplished when an estate is opened and the probate judge (called a Chancellor) appoints an administrator over the estate. This person is called an ‘executor’ when there is will, and an ‘administrator’ when there is no will. The executor or administrator then has authority to represent the deceased in their claim. If the case is successful, the settlement payment will be made payable to the estate. The check will be deposited into the estate bank account. The estate will then be closed, and the estate bank account can be disbursed to the heirs or beneficiaries of the will.
Estate probate generally requires payment of a retainer fee in advance. In cases like the widow’s discussed earlier, such a probate case may be handled on a contingency fee basis. A contingency fee means that the attorney takes on the representation without any upfront fee. The attorney invests time and money in the case, and is paid a percentage of the money which is collected. If nothing is collected, the client owes nothing.