Lesson #12: Legal Guidance Is Needed Throughout Probate Approval Process
The below lesson is the eleventh of 16 lessons that are included in Attorney Charles Boyk’s new book, I’ve Stood In Your Shoes, explaining his personal experience with child accidents. You can find the previous lessons in the blog section of our website.
Any lawsuit that is brought on behalf of an injured child is done in the name of the parent or legal guardian. They are presumed to act in the best interest of the child, therefore any settlements, either before or after the lawsuit is filed, must be agreed to by the parents. However, parents don’t have complete control over the settlement.
Some parents have the mistaken belief that they are entitled to collect their child’s settlement proceeds and do what they want with the money. But the law clearly states that the settlement is for the benefit of the child and should be protected until the child turns 18. Sometimes parents are able to get a portion of the settlement for “loss of consortium” as discussed previously. It’s usually a relatively small amount of money. The county’s Probate Court acts to protect the settlement so the funds are available when the child reaches adulthood.
The Probate court will conduct a hearing to ensure that any settlement over $10,000 is in the best interest of the child. Getting the Probate Court to approve a settlement for a child adds additional time to the process, as well as additional legal expertise. An experienced attorney can generally move the settlement through the system in an efficient manner.
An application to settle a minor’s claim must first be filed in the Probate court. This application provides a breakdown of the settlement and the expenses that are coming out. It also lists the unreimbursed expenses (medical and otherwise), attorney fees, and other monies going to the child’s parents for loss of consortium. The application also tells the court where the child’s money will be kept until they turn 18-years-old. The money is often kept in an interest bearing CD or bank account, or a structured settlement (see Lesson #11) to be dispersed throughout a period of years.
After the Probate Court receives the application, they set a hearing that the child and parents must attend. Parents sometimes have trouble getting time off of work, so one parent may file a document with the court waiving their appearance and consenting to the settlement. At the hearing, the judge or magistrate will review the settlement proposal to make sure it is in the best interest of the child. They ask the parents if they approve of the settlement and ask the attorney for specific information about the deal.
The most important thing for a parent to do to help protect their child is to find an attorney that is experienced in injury cases that involve children. These cases can be somewhat complicated and the Probate Court application process and hearing alone require a great amount of legal knowledge and sophistication.
Lesson to be learned: The Probate Court must approve minor settlements and legal guidance throughout the process is critical
It is imperative to have an attorney help you handle the minor settlement process and address the court’s questions and concerns. An attorney can advise you of the court procedures and disbursement proposals. They will make the entire process much easier and will help resolve the case. No one should try to go through this process alone. Contact an experienced personal injury attorney that can guide you through the legal maze.
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