It's been months.
Months since her wrongful death case settled.
Months since we received the settlement check.
Months since the closing papers were filled out.
Every month I speak to her and let her know she can't get her money yet.
Her money is sitting in escrow.
In fact, it's sitting in an interest-bearing escrow account for the benefit of her and her family.
She can touch the money yet. Her family cannot touch the money yet.
Want to know why?
It's because the surrogate's court has not yet signed off on a final order giving me the legal authority to distribute the money to the family.
Let me explain...
In a wrongful death lawsuit in New York, if we can agree during the course of your lawsuit to settle your case, we still have to get approval from the court that supervises these particular cases.
The court that is responsible for overseeing how money is distributed to the surviving family members is known as the surrogate's court.
In a lawsuit that seeks compensation for the wrongful death of a family member, that lawsuit is brought in the Supreme Court of the state of New York. That is our trial level court. If we are able to reach a negotiated settlement with everyone involved, then we will have to prepare a set of documents for the surrogate's court in order for them to approve how the money is to be distributed.
In some cases, the trial judge is willing to do this. However, in the majority of cases we must head over to the surrogate's court in order to make this happen.
We must provide a detailed explanation to the surrogate's court about what this case involves. We must identify who the surviving family members are and whether they are a spouse, brother, mother, father, aunt, uncle, siblings, children and whether any of the surviving family members are from the marriage or outside of the marriage.
How children get money is often different than how adults receive the money.
Remember, the surrogate's Court has an obligation to make sure that any money for the children is held in trust until they become an adult. This is done to protect them so that a young child with no experience handling money simply doesn't spend it.
Also, there are instances where some family members believe that they should receive more money than other family members. If the family members are unable to agree on how the money is to be distributed, then it becomes contested and creates an even lengthier process for the surrogate's court to sort out.
In cases where the surviving family agrees on how the money is to be distributed, we must submit the final paperwork to the court clerk to make sure that all the proper forms are filled out correctly and we have provided supporting documentation.
There are instances where the court clerk will reject our papers.
The clerk may feel something is missing or was not signed in the correct place on the form and ask us to redo the papers and resubmit them.
If that happens, we now will have to redo the papers, and resend you the documents for signature. Then you will likely have to get all of your family members to sign them, send it back to us and only then can it be resubmitted to the court for approval.
There are many instances where we must also notify the New York State Department of taxation to see whether or not they will claim they have a right to taxes on any part of the settlement. In addition, we will also have to show proof of whether there is or is not any money that must be repaid to Medicaid or Medicare.
If we are dealing with the Medicare or a Medicaid lien, that means we must negotiate with that agency first in order to get the final numbers to submit to the court. This can take an extended period of time to resolve long after the lawsuit has been technically settled.
The frustration is valid...
From the surviving family's point of view, it is extremely frustrating when there are so many delays associated with a obtaining the actual settlement money that is designed to help compensate the family for their loved one's death.
The family often does not see all that goes on behind the scenes that contribute to the delays associated with the family getting their settlement money.
That's why it is so critically important to keep my clients apprised of what is going on every step of the way. I find that the attorneys who have ongoing communication with their client have the best relationships.
In a wrongful death case we must go through this lengthy and unwieldy process in order to get the legal authority from the court that permits me to distribute the money to the surviving family members.
I know it's a long process and it is frustrating, especially for the surviving family members.
In this particular case, my client just happened to be extremely frustrated even though I had told her what was happening every single month during our regularly scheduled phone calls. It's unfortunate, especially since that money is sitting in our escrow account, just waiting for it to be distributed.
As soon as we receive the surrogate's court order giving us permission to distribute that money, those checks will be sent to the client and that will close out their tragic case.
The bottom line...the surviving family has an absolute right to know where their settlement money is.
They have a right to be educated. They have a right to learn how this drawnout legal process works in order to know where their settlement money is.