Must an estate be in probate before filing our cause in District Court?

by CW
(Modesto, CA)

Our SF 95 FTCA claims for negligence and wrongful death of our son, a decorated OIF veteran received a final denial by the VA and DOD representatives on 5/31/13. We are aware we only have 6 months from that time to file suit in US District Court, California.

We are rushing to set up an estate for our son in order to have a standing to bring suit on his behalf. It seems the estate won't be final prior to our last day to file, Nov 31, 2013. Can we move to expedite the Superior Court (probate) or will we be able to meet our Nov 31, 2013 deadline by demonstrating the matter is in probate?

Visitor Question:
Disclaimer: Information provided in our response is NOT formal legal advice. It is generic legal information based on the very limited information provided. Under no circumstances should the information in our response, or anywhere else on this site be relied upon when deciding the proper course of a legal matter. Our response does NOT create an attorney-client relationship. Always get a formal case review from a licensed attorney in your area.

ANSWER for "Must an estate be in probate before filing our cause in District Court?":

CW (Modesto, CA):

You have a right to petition the probate court for an expedited hearing based on the FTCA claims requirements. Hopefully you have an attorney representing you in the probate matter.

If so, your attorney will know exactly what to do to prepare and file a petition for an expedited probate hearing. Unless your son's estate is being contested, and that doesn't seem to be the case, there shouldn't be any reason for the court to deny your petition to expedite the probate hearing. This assumes you or your husband are petitioning to be named executor(s) of your son's estate, and the court hasn't previously requested the testimony of other witnesses.

There is an alternative. Depending upon your attorney's relationship with the judge and with his court coordinator (assistant), it may not be necessary for your attorney to file a petition to expedite the hearing. It isn't unusual for attorneys to seek out a judge's court coordinator and simply ask the coordinator for the case to be moved up.

If you do not have an attorney you would be well-advised to retain one now. Time is of the essence. You know that better than anyone.

You would be wrong not to take seriously and fully comply with the FTCA appellate filing deadline. To hope the government will take your "good intentions" to heart would be unwise. They won't. If they extend the deadline for you, they will have to extend it for anyone else who is showing good faith.

On a personal note, your son is a hero for defending our country.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

P.S. Please help us out by sharing this site...

Click here to post comments

Return to Wrongful Death Questions.

How Much Is Your Claim Worth?

Find out now with a FREE case review from an attorney...

How Much Are Your
Injuries Worth?

Find out with a
free attorney review:

TYPE OF ACCIDENT
AUTO ACCIDENT
PERSONAL INJURY
WORKERS COMPENSATION
MEDICAL ERROR
YES! I WANT FAIR COMPENSATION