If this is a wrongful death/survival type action, such an action is typically made in the name of the estate so there has to be an estate. It doesn't matter the amount of time that has passed (as to the probate being opened at least). Just because there was no will and no estate previously, doesn't mean anything - there now is an estate for purposes of the lawsuit. The attorney handling the personal injury matter should be able to advise you on this and take care of it/ or engage counsel to assist with the probate side.
This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/