I'm terribly sorry to hear of your loss. You raise some good questions and are doing the right thing by asking someone besides the insurance company. An estate will need to be established, but without a will there is no one who is being directed to represent and administer his estate. A quality injury attorney can assist you with this. Also, even though it may appear that the insurance company is being nice and helpful, you may not be getting the full story on applicable coverage. The claims "lawyer" is probably not an attorney at all, just an adjuster. This adjuster is not "on your side." The at-fault driver could have additional insurance, and you and your family may have additional insurance as well that could apply to this claim. Before attempting to do anything else, I HIGHLY encourage you to at least consult with a personal injury attorney to discuss this claim. Choosing to handle this on your own would be a mistake and could severely jeopardize your ability to make a full recovery for your brother's death.
BEWARE. You should consult with a personal injury attorney before finalizing or signing anything with the insurance company. A personal injury attorney (who has experience with wrongful death) will be able to guide you through this process and make sure that you are not getting taken advantage of.
I don't advise doing this on your own as you probably do not have the expertise to 1) open the estate 2) know how to find out if there is additional insurance available. You need to contact an experienced personal injury/wrongful death attorney to handle this claim.
The above is just my opinion based upon the limited facts provided. It is not intended to be offered as legal advice nor is it intended to establish an attorney client relationship. You should seek a consultation either in person or over the phone to discuss any legal issue that you may have raised.
You have to speak to an attorney. There are usually no up-front costs for something like this, because the attorney will just take a percentage of whatever he can recover on your behalf. You can easily mess this up. If it is your half-brother, you need to speak to an attorney to find out who benefits from any wrongful death proceeds recovered on his behalf. Georgia has strict rules about this. Go see a reputable accident attorney right now. If the deceased was married, or if not, if has living parents or children, they may be the proper beneficiaries. Talk to an attorney because Georgia is very specific about who recovers for this.
Pardon my being blunt, but it sounds like you are trying to do this on your own, possible to avoid having to pay an attorney to help settle the claim/estate/etc. If that is indeed the case, you are risking really messing things up. Look for an contact experienced personal injury attorneys in your area who handle wrongful death claims or experienced estates and probate attorneys. If it is as you say, i.e., the other driver's insurance company is ready to write a check, then whoever you speak with should be willing to take a reduced fee since the "hard" part of the case appears to be over. Do yourself a favor and let an attorney handle this for you. You will be glad you did.
You do need to probate your brother's estate. In order to do so, based on the questions asked, you need to retain an attorney to assist you with the matter.
Definitely hire an attorney. The insurance company is not your friend. An attorney will be able to open an Estate for purposes of handling any potential settlement and will also be able to determine whether you are receiving ALL of the insurance proceeds that are available. For example, there may be an umbrella policy, the negligent driver may have been in the scope and course of emploment ... which may yield a much greater recovery. Further, an attorney can help reduce last medical bills or other claims on the Estate.
Please note that I am licensed to practice in Indiana, North Carolina and Arizona. This communication does not establish an attorney client relationship until a contingency fee agreement is entered. Please contact an attorney of your choosing to answer your legal questions.
You need to contact a lawyer to review this before you sign anything. If the insurance company is ready to write the Estate of your half-brother a check (I assume for the policy limits) make sure the lawyer you hire doesn't charge you a % of the amount the insurance company has already offered. Negotiate a deal where the lawyer only gets paid if they ADD VALUE to the settlement. If they want to charge by the hour to help you process the settlement, that might be reasonable.
I agree with everyone that you should consult and attorney before agreeing to anything. There could be millions of dollars more available for you to recover in a case like this.
Generally the insurance company will be paying the estate, via the adminstrator appointed by the probate court. You really need counsel for two reasons: (1) to get the estate probated and (2) the amount they will offer you without a lawyer is likely far less than will offer with a lawyer.
If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer unless you sign a retainer agreement). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. Note that I am only licensed in Georgia and thus cannot practice in other states. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy. State bar rules require that I disclose my name/contact information in any communication (Glen Ashman)
If you are doing this in Georgia, the attorneys say you will need to set up an estate to determine who gets what out of any settlement. Sometimes, if the insurance company is paying policy limits and there are no other assets to be had from the defendant, there would be no need to hire an attorney and pay out of the proceeds. However, that is a big question; and I believe you should consult an attorney on this, even on a limited basis of getting good advice as to how to proceed, to make sure you and your family get what is right and do it in the correct way. Sorry to hear of your loss of your brother.
Each state has its own rules about who is eligible to file for wrongful death. You need to meet with a local atty to see what GA law is on that. Some states have summary probate procedures when there is not a large estate. Your fathers estate may be eligible for that. A local probate lawyer should be able to advise you. Some states require an estate be opened for a WD claim, others don't. Sometimes you want to avoid opening an estate, since there could be creditors that would make claims against the settlement monies, not to mention the cost of opening an estate.
When a person dies without a will, it is called intestate. Since there was no will, you must go through the decedent's county to file a petition for administration of the estate. Some counties have these papers on their court website. Upon the approval of the judge, an administrator of the estate will be appointed. The administrator acts as an executor and can negotiate with the insurance company to settle this matter. But, like previously stated, please seek counsel for the negotiations with the insurance company. It is their job to cut the smallest check possible.
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