Tampa, FL asked in Wrongful Death for Florida

Q: Can I wait to hire a probate attorney in a pending wrongful death case? Probate is open and no assests unless we win.

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2 Lawyer Answers
David Hughes Harris
David Hughes Harris
  • Venice, FL
  • Licensed in Florida

A: So sorry for your loss. Not sure what this question is really asking, but under Florida law, there is two (2) year statute of limitations on wrongful death claims. See Fla. Stat. 95.11(4)(d).

Charles M.  Baron
Charles M. Baron
  • Hollywood, FL
  • Licensed in Florida

A: Your question is a bit vague, but you seem to be asking, "If a probate case has already been opened without an attorney in order to set up the decedent's estate for purposes of bringing a wrongful death action, should the personal representative hire a probate attorney ASAP, or can he/she wait a while to do that while the wrongful death suit is pending?" First, I'm surprised you're asking that question if you have already retained an attorney to bring the wrongful death suit, because that attorney should know the answer to your question - and would probably know a probate attorney to work with. Have you not yet hired an attorney to bring the wrongful death case?

Secondly, under Fla. Probate Rule 5.030, a personal representative MUST be represented by an attorney in the probate court UNLESS the P.R. is "the sole interested person", in which case the P.R. would not be required to have an attorney in probate at all. Even when not required, though, it is strongly advisable to retain an attorney for that process. Depending on the strength of the wrongful death case, it might be possible to retain a probate attorney with little or no money up front.

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