Videos

Henry Gornbein: Howard, you recently published an article for lawyers in the State Bar of Michigan Journal on wrongful distributions of probate in wrongful death situations. Why don’t you tell us a little about that area and why it’s so important especially for people who may have suffered a loss. Howard Linden: Sure, wrongful death is the area of law that is practiced as a specialty by many law firms in this area of the state. It deals with someone dying of unnatural causes. A wrongful death is a death due to malpractice, allegedly or an automobile accident that causes death. When someone dies, someone else has to stand in the shoes of the person who passed away. That person is called a personal representative. Henry Gornbein: So, just to jump in, when there’s a death if someone’s going to try to sue or claim damages there has to be a personal representative involved to go forward with the lawsuit. Would that be a correct statement? Howard Linden: That’s an absolute correct statement. In fact, the Michigan law demands a personal representative to step up and take that position. Henry Gornbein: Let’s explain to our viewers what’s exactly the role of the personal representative is. Howard Linden: Personal representative would be the person in charge of an estate. If the estate had other assets other than the wrongful death of the person who died, that personal representative would have to accumulate those assets, liquidate those assets and disperse those assets, either pursuant to the last will and testament of the person who died or if the person who died did not leave a will, it would be dispersed pursuant to intestate distribution under the Michigan probate code and statutes. So they have an active role in participating, usually with an attorney, in getting the assets to whom they are intended and/or liquidated. Now, if there’s a death and it requires litigation or a pursuit against someone who caused the death, that personal representative would hire an attorney to pursue a lawsuit. At the end of the day when that lawsuit is successfully prosecuted the personal representative has a great deal to say who gets what portion of the proceeds. In other words, a personal representative would have some input into the distribution. It is handled by statute in terms of interested parties who would be able to participate, but the PR or the personal representative would have an active role with his or her attorney in determining percentages of those assets. Read More

Henry Gornbein: Howard, chicken or egg question, I guess. Are you usually the one who brings in the negligence attorney or is it the negligence attorney who usually brings you in when there’s going to be a cause of action based upon wrongful death? Howard Linden: There is no chicken or egg involved really. It’s the attorney. I get hired by personal injury or wrongful death attorneys throughout this area to do the probate. It is very unlikely that I would get a case first, because the high profile attorneys that do this exclusively, use me exclusively and I do the probate work for them. Read More

Henry Gornbein: Don’t the caps heavily impact this area of the law now? And by caps I mean, I think a $250,000 cap for pain and suffering. Howard Linden: Actually the cap now is, I think $367,000 or $378,000 because they add inflationary numbers. It’s still way below what is should be. And yes, the short answer is yes. It has diminished the ability of people to collect what they should collect for these type of horrific damages and death. But, you still are allowed a present value if a person dies wrongfully and that person has a job, is employed and is a younger person, in their 40’s or 50’s, for example. You are allowed to project present value of loss wages. The cap is on the conscious pain and suffering part. Henry Gornbein: So, the big money is going to be in lost wages vs. the pain and suffering obviously. Howard Linden: Unfortunately, today it is unless you can show gross negligence and then the cap is off, but that’s very difficult, as you know as an attorney, to show today. Read More

Henry Gornbein: Will you open up the estate before the litigation has commenced or is the estate get opened if there’s a settlement or an award achieved? Howard Linden: That’s an excellent question. It depends on when I get it. Most of the time I get it right at the beginning. I sit with the attorney who takes in the case. We sit with the grieved survivors, get the information that we need, prepare the paperwork that we need to open the estate up concurrently or usually just before a lawsuit is started. But, it can work the other way as well. There can be a late arrival of a PR because the case is so obvious that things are done before I get called. Either way we are involved either right at the beginning or toward the end. Read More

Henry Gornbein: What are some of the key steps in the procedure that you’re involved in, in this area? Howard Linden: The key steps in the procedure are information, information and getting information. The reason I say the following as my article demonstrated, at the beginning of a case when people’s minds are fresh and information is current you must have certain information to open up an estate. You must have certain information to find out who the interested parties are pursuant to a wrongful death litigation scenario. You’d be surprised how memories fade two years after a lawsuit has started. By that I mean, at the beginning of a case, we get the information as to where all of the brothers and sisters are, their addresses and so forth. At the end of a case if there are some other issues on the table such as relationships with the dead individual, you’d be surprised how many times the PR who normally is a child or a spouse can’t remember where brother Billy lives or can’t remember all of the names of the siblings. That is a very dangerous situation for my attorneys, my clients, the PI lawyers. Henry Gornbein: Why is that? Henry Gornbein: If you leave somebody out, you have a problem. If you leave out an interested party who should participate in a settlement, regardless of their relationships, you have a problem. So, I encourage my attorneys to call me in immediately so when things are still very new and up to date, I have formulated an information packet that I have done myself, where I squeeze out every bit of information that I need right at the beginning, so when the case is settled or when the trial is over three years from now, I can compare the information that I got now with the information that I would get later. Read More

Henry Gornbein: Howard, if there’s a will, then it’s a simple matter and you don’t have to worry about that. Isn’t that correct? Howard Linden: No, that’s not true and I’ll tell you why. Another excellent question. Wills are basically blueprints. In a will you can put in who would be the natural objects of your bounty are. That’s the fancy word for probate work. However, under the wrongful death statute there are other people who are called interested parties, who I’ve alluded to earlier in our conversation. They also must be notified and participate. They have a right to make a claim. So, when there is a wrongful death case started, everybody under the statute and in the will if there is one, is entitled to notification. It is mandatory. You must send out a notice of pending litigation and of your right to make a claim. The will can be used in some spots but it is not exclusive. In fact it is very not exclusive. It’s more inclusive because wills are mainly used in these scenarios when you get someone who isn’t a proper party of interest under the wrongful death statute who would be entitled to some sort of share. For example, in a wrongful death case, a spouse, children, grandchildren, brothers and sisters are the designated interested parties who have a claim in a case. But if a will mentions Aunt Betty to get something or Uncle Steve to get something, who fall outside of the enumerated class of people you have to notify them as well. Therefore they are in addition to the normal class of people. I don’t want to be too complicated but it expands the class as opposed to restricts the class. Read More

Henry Gornbein: If there’s money, sometimes you have these long lost relatives coming out of the woodwork. You have issues in wills and often seems the more money there is the more people are going to want to fight for a piece of the action. My question, Howard is, How are these things handled? What is your involvement in negotiating whether Aunt Betty gets something or long lost brother who’s been somewhere abroad for 20 years who suddenly appears. How do you handle some of these things? Howard Linden: That’s a good question Henry. I’ll tell you how it’s handled. The legislature in their wisdom many, many years ago thought that would happen without some guidelines, without some rules. The Michigan wrongful death statute has a specific group of people who can take under a wrongful death case. They are spouses, children, brothers and sisters, parents and grandparents. That’s it. Anyone else that comes out of the woodwork is not going to be able to file a claim. Henry Gornbein: Unless they’re named in a will. Howard Linden: Unless they are named in a will. That is number one. Number two, your second part was how is this done. This is the most important part of what I do. My experience with hundreds of cases in every level of the court system, federal included, has determined a pattern and practice that courts tend to follow in many of these cases. It is in many cases a matter of negotiations. It is in many cases a matter of relationships. If a certain brother for example has been absent, living in California for 20 or 30 years and hasn’t seen the unfortunate person who has passed away, that person would and should get less of the money because it is based on relationships. It’s based on communication. I’ve tried wrongful death distribution cases in federal court, in state court, and the things that control are proof, which most of us don’t have as we’re growing up of the relationship of the decedent, a dead person, and his family. It is very interesting and very complicated because every single case is different, just as every single family is different. Henry Gornbein: That’s for sure. Howard Linden: So, we all know we have family members who we are closer to than others and some relationships are closer than others, but as a general rule spouses and children are entitled to the lions share of any moneys recovered from a wrongful death case. There are certain patterns and guidelines and things of that nature, which probably your show is not long enough to cover, but typically that’s who the focus is on and that is who receives most of the funds on a percentage basis. Read More

Henry Gornbein: Howard, let’s say there are minor children involved. What steps are taken in that scenario? Howard Linden: There are two ways to go for minor children. If the money is needed during the minority of the children, normally we open up because the law requires conservatorships for minor individuals. Minors being anyone under the age of 18. If there isn’t a lot of money recovered and if the money might be necessary for the use and benefit of the minor child, a conservatorship is required, which someone is then in charge of to control those funds. Many attorneys do what they called structured settlements. A structured settlement can begin at any time, but in order to avoid the probate court involvement and if money is not required during the minority of the child a structured settlement is like an insurance policy. If a child is getting $100,000 and doesn’t need that money during his or her minority you can use that money to buy and insurance policy that will pay certain moneys starting at the age of 18 over many years, sometimes over many decades that will provide and secure that money for the minor’s future. That’s an excellent way to go. It’s not taxable and it pays money when a child is old enough to be in control of his own money. Most of these structured settlements are for a short window that allows a child to have his college paid for and expenses related to that college. It also provides lump sums when the child turns 25, 30, 35 for those parts of a child’s life that require perhaps the purchase of a home or other expenses that most of us are familiar with at different stages in our life. Henry Gornbein: Howard, who’s managing the money? Howard Linden: Normally a custodial parent is appointed or has the priority, usually in a judges mind, of being the conservator. There are no priorities under the statute. If a parent has no familiarity with funds and isn’t comfortable with managing funds, then that parent can appoint somebody else. In my situation, for example, I’ve been appointed on numerous files on the behest of a parent because they feel more comfortable with a little more expertise, a little more experience as to where the money should be invested and this kind of thing. I might add that no matter who is appointed conservator, court approval during the minority of a child is always required, so there are a lot of safe guards for that type situation. Read More

Henry Gornbein: Let’s say the recipients are all adults. Are there any safeguards there because often people will come upon a sum of money that they’ve never had, would never see other than for this tragic situation, they’re going to blow it. Are there safeguards? Howard Linden: No. When you’re an adult under Michigan law, which is 18, which I personally feel is 3-7 years too young to be considered an adult. That may be just me. No, there are no safeguards. If you’re an adult, you’re an adult. And if you want to blow it, you’re going to blow it. And, you’re right. I have seen children in their teens, 18-19, run out, but that Corvette, go out and trash it within six months and they’re left with nothing. It’s a horrible situation, but the law doesn’t provides us to do anything else. Henry Gornbein: Let’s say you have a scenario where people are going through a divorce and the bread winner dies and there is a wrongful death action. Have you ever had a case like that? Howard Linden: I’ve had cases just like that. In fact, the new EPIC – the estate protection of individuals code that just came out a few years ago addresses that issue. The short version is yes, the spouse still has priority. The spouse always has priority to be the personal representative of her husband’s estate given your scenario. There can be people who would contest that if a divorce situation is pending. The statute addresses that issue regarding spouses, which was a big important issue. And the new code came out several years ago, that was one of the changes in the areas. It’s not a slam-dunk like it used to be. Read More