A family in Brooklyn is grieving. The sudden loss of a parent in a construction accident is devastating, but as the appointed executor of the will, their son now has a new, daunting responsibility. He must not only marshal assets and pay creditors but also pursue a wrongful death claim on behalf of the estate. The first question I hear in these situations isn’t about probate or trusts. It’s a more immediate one: “How do we find the right lawyer for this?”
As an estate planning attorney, I don’t handle personal injury litigation. My role as counsel to executors, however, means I am frequently involved in helping them select and oversee litigation counsel. We work to ensure that any recovery from a lawsuit is properly managed for the beneficiaries and aligned with the decedent’s long-term wishes. Over the years, I’ve learned to identify the key qualities that separate an effective personal injury attorney from the rest—especially when an estate is the client.
Beyond the Billboard: Verifying Trial Experience
Many personal injury firms are built on a model of high volume and quick settlements. They are experts at negotiating with insurance adjusters and processing claims efficiently. While there’s a place for that, a wrongful death action on behalf of an estate is a far more significant matter. The damages can be substantial, and insurance carriers will fight hard to minimize their payout.
This is why true trial experience is non-negotiable. An attorney with a credible history of taking cases to a jury verdict operates from a position of strength. Insurance companies keep records. They know which lawyers will accept a lowball offer to avoid the courtroom and which ones will see a fight through to the end. The reputation of being trial-ready changes the entire dynamic of settlement negotiations. When we vet counsel for an estate, we look past the advertising and ask for a record of jury verdicts and trial outcomes. This is the single most important factor in securing a full recovery for the beneficiaries.
Understanding the Fiduciary Connection
When an individual hires a personal injury lawyer, the attorney-client relationship is straightforward. When an estate hires one, the dynamic is different. The attorney’s client is the executor or administrator, who in turn owes a fiduciary duty to the estate’s beneficiaries. The personal injury lawyer must understand this structure.
They are not just working for one person’s benefit; they are working to recover an asset that belongs to the estate itself. This means their communication must be clear, their accounting transparent, and their legal strategy aligned with the executor’s duties. They must appreciate the ultimate settlement is subject to review and approval by the Surrogate’s Court. An attorney who has never worked with an executor or the probate process can create significant delays and complications. We always look for counsel who can speak the language of both personal injury law and estate administration.
The Contingency Fee and Estate Distribution
Personal injury attorneys almost always work on a contingency fee basis, meaning they take a percentage of the financial recovery as their payment. While the concept is simple, the mechanics become complex when an estate is involved. The settlement or verdict is not paid directly to the family members; it is paid to the estate.
From there, the funds are used to pay legal fees, reimburse the estate for litigation costs, and then are distributed to the beneficiaries. In New York, the rules for distributing the proceeds of a wrongful death action are governed by the Estates, Powers and Trusts Law. Specifically, EPTL § 5-4.4 dictates that damages are distributed to the decedent’s distributees based on the pecuniary—or financial—loss they each suffered. This is not the same as the distribution outlined in a will. The attorney must have a firm grasp of these statutory requirements to advise the executor and the court.
Before an executor signs a retainer agreement, we review it carefully to ensure the fee structure is clear and that all potential litigation expenses are outlined. Prudence is paramount.
Choosing a lawyer to represent your family’s interests after a tragedy is a profound decision. It’s a business relationship born from a deep personal loss. The right attorney will not only have the legal skill to maximize the estate’s recovery but also the humanity to guide a grieving family through an adversarial process with dignity. This decision will shape your family’s financial security for years to come.
If you are serving as an executor and face the prospect of a wrongful death or survival action, the first step is to establish a clear inventory of the estate’s assets and the decedent’s affairs. Organizing these foundational documents will prepare you for a more productive conversation with any potential litigation counsel you consider hiring.
