of minor plaintiffs
|
Representing estates of minor plaintiffs |
by William C. Roeger Jr., Esq.
Note: A copy of the complete opinion in In Re:
Estate of Elizabeth Mary Barrett may be obtained by contacting Craig Giangiulio of the
Philadelphia office ([email protected]); phone: (215)
546-6451.
All too frequently as litigators we are called upon to represent the estate of a minor
child in a personal injury action. In a certain percentage of those cases the child was
living with only one of his/her parents and there may even be bad relations between the
parents. In order to represent the estate of the minor, a personal representative needs to
be appointed. The question becomes should both parents be appointed or just one, and if
only one, which one? I have faced this problem a half dozen or more times. Typically, I
have gotten the noncustodial parents to renounce right to serve by explaining that
renouncing their right to be co-administrator has no effect on their right to inherit from
the estate.
What happens though when both parents want to serve and neither is willing to renounce? Is
that a problem? Not necessarily, but it can be if the co-administrators
can’t/don’t get along. If they don’t get along, will they be able to agree
upon such things as what settlement demands to make or what settlement offers to accept?
Perhaps even more important initially, will they be able to agree upon who should be
retained to represent the estate? What’s really at stake is control of the
litigation. How do you resolve this? My recent experience in exactly this situation may be
of help to you if you ever face this issue.
On Aug. 21, 2000, a six-and-a-half-year-old child was fatally injured in an automobile
accident. The child’s mother was 16 when the child was born and the father was 15.
The parents never married and never lived together. After she was born, the child resided
exclusively with her mother and had limited contact with her father. The father paid
support sporadically and was in arrears at the time of his daughter’s death. Within a
few days after his daughter’s death the father retained counsel who wrote to the
mother asking her to renounce her right to serve as administratrix so that he could be
sole administrator and pursue a claim on behalf of the estate for the child’s death.
When the mother did not respond immediately to the letter, the attorney filed a petition
with the register of wills seeking to have letters of administration granted to the
father. It was at this point that the still grieving, but now angry, mother contacted me.
I filed an answer to the father’s petition, as well as a cross petition seeking to
have the register of wills grant letters of administration solely to the mother. The
procedure to resolve this issue is a hearing before the register of wills. While sworn
testimony is presented at such a hearing, the hearing proceeds in a somewhat informal
manner. In my case both sides appeared with counsel and presented testimony. The register
subsequently determined that both parents were fit and entitled to letters and appointed
both of them as co-administrators.
Obviously that did not resolve the issue. Both sides still wanted their own attorneys to
represent the estate and refused to agree to the other’s choice. The proper procedure
then is to appeal the decision of the register of wills to the Orphan’s Court for a
trial de nova. In our case both sides appealed seeking the exclusive right to administer
the estate. Section 3155(b)(3) of the Probate, Estates & Fiduciaries Code provides
that letters of administration shall be granted by the register to one or more of
“those entitled under the intestate law as the register, in his discretion, shall
judge will best administer the estate, giving preference, however, according to the sizes
of the shares of those in this class.” On appeal, the court’s standard of review
is whether the register of wills abused his/her discretion or committed an error of law in
the issuance of the letters. Since matters such as this are fact driven, the real question
is how do you establish that the register abused his/her discretion?
Following � 3155(b)(3) of the PEF Code the obvious approach is to attempt to prove that
your client would be the best person within the class to administer the estate. However, I
would suggest that you may also want to look at the forfeiture provision of 20 Pa.C.S.
�2106(b). This provision specifies the circumstances under which a parent is deemed to
forfeit his/her rights to the estate of their minor child. While the issue of forfeiture
was not directly before the court, at trial I presented evidence relative to this issue
and argued that if we were able to present proof that met the standard for forfeiture that
the father should not be considered as an appropriate person to be an administrator or
co-administrator.
In the final analysis, the court wrote a nine-page opinion appointing the mother as sole
administrator. At page 5 the court stated:
Two glaring facts emanated from the testimony presented to us. The first, and most obvious, is that appellants do not and clearly are not able to communicate with each other. There is deep-seated hostility and resentment which has permeated and polarized both families, including the decedent’s paternal and maternal grandparents. It is clear to us that there is no possibility that these young parents will put their personal differences aside and work in concert in the administration of the decedent’s estate. It appears to us that nothing but gridlock would result from the appointment of both of them as co-administrators. On the other hand, (mother) has already retained counsel to pursue an action for the wrongful death of her daughter, she appears to be otherwise fit to serve as administrator, and we find that she is the party most capable of administering the estate in order to achieve the maximum benefit for the decedent’s heirs.
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William C. Roeger Jr., a partner in the Perkasie law firm of Roeger, Walker, Cassel & Holko, is PaTLA’s Comptroller.