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Frequently Asked Questions Georgia.png
Georgia Frequently Asked Questions.png

Estate-Based Claims FAQ

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1)  What claims can an estate administrator pursue after the death of a loved one?

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The estate administrator is entitled to recover for the “funeral, medical and other necessary expenses” that result from the injury and death of the deceased person. 


These are objective damages of a precise pecuniary value.


However, the decedent’s estate is also entitled to pursue non-pecuniary claims, such as the pain and suffering experienced by the decedent before their death.



O.C.G.A. § 51-4-5

O.C.G.A. § 9-2-41

Mays v. Kroger Co., 306 Ga. App. 305, 306, 701 S.E.2d 909, 911 (2010)

Grant v. Georgia Pac. Corp., 239 Ga. App. 748, 750–51, 521 S.E.2d 868, 870 (1999)

Smith v. Mem'l Med. Ctr., Inc., 208 Ga. App. 26, 27, 430 S.E.2d 57, 59 (1993)

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2)  Does a personal injury claim survive a claimant’s death?

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A personal injury claim is not extinguished, or terminated, just because an injured plaintiff dies. 


The claim survives to the deceased plaintiff’s personal representative of his estate.  This includes personal injury and property damage claims.


By way of an example, let’s assume that your spouse was involved in a car wreck in which they broke a bone.  If your spouse later passes away due to reasons unrelated to the collision (i.e. old age, disease, cancer, etc.), their claim for personal injuries would pass on to the estate representative.



O.C.G.A. § 9-2-41

McQurter v. City of Atlanta, Ga., 572 F. Supp. 1401, 1422 (N.D. Ga. 1983)


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3)  What duties does an estate administrator owe to the estate beneficiaries?

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Estate administrators owe is a fiduciary for the estate beneficiaries. 


So, that means they owe the estate beneficiaries a duty of utmost good faith.


Generally, the estate administrator must exercise this duty in prosecuting estate-based claims, such as for funeral or medical expenses or claims for pain and suffering.


If the estate administrator is not up to the task of pursuing the estate’s legal claims, they may assign the claim to a creditor or a beneficiary of the estate.



O.C.G.A. § 53-7-1

O.C.G.A. § 53-7-45

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222, 493 S.E.2d 622, 625 (1997)

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4)  What types of pain and suffering can the estate recover?

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The estate is allowed to recover the garden-variety types of pain and suffering, including physical and mental pain and suffering, emotional distress, and humiliation.


But, there are some qualifiers.


If the death was instantaneous and there is no evidence of pain and suffering, then there is nothing to be compensated as to those specific claims.


If death is not instantaneous, recoverable pain and suffering also includes the fright, shock, and mental suffering experienced by the decedent upon realizing their impending death.  This can be proven by circumstantial evidence, and it does not require that the deceased suffer an actual physical injury first (going against the traditional rule that physical injury is a condition precedent for pain and suffering).


And, if the decedent is unconscious, then the estate is not entitled to recover for pain and suffering that they speculate could be experienced during this unconsciousness.



Carroll Fulmer Logistics Corp. v. Hines, 309 Ga. App. 695, 697, 710 S.E.2d 888, 891 (2011), overruled by Auld v. Forbes, 309 Ga. 893, 848 S.E.2d 876 (2020)

Camacho v. Nationwide Mut. Ins. Co., 13 F. Supp. 3d 1343, 1359 (N.D. Ga. 2014)

McQurter v. City of Atlanta, Ga., 572 F. Supp. 1401, 1422–23 (N.D. Ga. 1983)

Grant v. Georgia Pac. Corp., 239 Ga. App. 748, 751, 521 S.E.2d 868, 870 (1999)

TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 469, 590 S.E.2d 807, 820 (2003)

Monk v. Dial, 212 Ga. App. 362, 362, 441 S.E.2d 857, 859 (1994)

Curtis v. United States, 274 F. Supp. 3d 1366, 1380 (N.D. Ga. 2017)

Cooper v. Mullins, 30 Ga. 146, 152 (1860)

Dep't of Transp. v. Dupree, 256 Ga. App. 668, 680, 570 S.E.2d 1, 11 (2002)

Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp. 2d 1363, 1376 (S.D. Ga. 2009)

Matter of Adventure Bound Sports, Inc., 858 F. Supp. 1192, 1211 (S.D. Ga. 1994)

Dep't of Human Res. v. Johnson, 264 Ga. App. 730, 738, 592 S.E.2d 124, 131 (2003), aff'd sub nom. Johnson v. Georgia Dep't of Human Res., 278 Ga. 714, 606 S.E.2d 270 (2004)


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A personal representative of an estate (i.e estate administrator or executor) is generally allowed to be compensated for administrating the estate. 


Georgia statutes allow the estate administrator a commission of 2.5% “on all sums of money received by the personal representative on account of the estate” and “on all sums paid out by the personal representative, either for debts, legacies, or distributive shares.”


This means that the estate administrator can paid a commission out of a tort settlement that passes through the estate, regardless of the type of claim.


In addition, they can be reimbursed for reasonable expenses incurred in the administration of the estate, including pursuing wrongful death claims.  Examples of expenses include expenses travel or similar expenses.


The compensation for an estate administrator can be changed either in the decedent’s last will and testament or by written agreement.



O.C.G.A. § 53-6-60

O.C.G.A. § 53-6-61


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5)  Is an estate administrator entitled to any wrongful death proceeds?

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6)  Is it possible for an estate administrator to have a conflict of interest in settling an estate-based claim?

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It is possible for the estate administrator to have a conflict of interest that could influence how they settle any possible claims that arise from the death of a loved one.


For instance, if the surviving spouse is also serving as the estate administrator, he or she may have several conflicting interests in how to apportion the settlement of those claims.  The surviving spouse is entitled to loss of consortium damages.  They are also entitled to atleast one-third of the wrongful death proceeds.  Finally their right to proceeds of any estate-based claims could be influenced by the decedent’s last will and testament, as well as their right, as administrator, to collect administrator fees.


The estate administrator must avoid any conflicts of interest and must disclose any purported conflicts to the beneficiaries to address appropriately.



O.C.G.A. § 53-7-1

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222, 493 S.E.2d 622, 625–26 (1997)


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7)  Can an estate-based claim include a claim for punitive damages?

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Yes, an estate-based claim can include a claim for punitive damages, even though a wrongful death claim is not entitled to punitive damages.


Punitive damages are generally allowed in any tort action, including personal injury.  Since the tort claims of the decedent “survive” to their estate, these claims can include punitive damages.



O.C.G.A. § 9-2-41

Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340–41, 319 S.E.2d 470, 480 (1984)

Berman v. United States, 572 F. Supp. 1486, 1489 (N.D. Ga. 1983)

Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp. 2d 1363, 1378 (S.D. Ga. 2009)


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8)  Are recoveries for estate-based claims subject to the decedent’s debtors and creditors?

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Yes, any amounts recovered by an estate for estate-based claims are subject to the debts of the decedent’s creditors.


So, if the decedent incurred medical expenses as a result of the death causing injury, these medical expenses will need to be satisfied out of any estate-based claim.


Or, if the decedent had any unpaid taxes or judgment against them, then those debts would likely have to be repaid out of any settlement proceeds.  If the estate administrator disburses the proceeds to the estate’s beneficiaries before repaying the debt, then the creditor has the right to compel the beneficiaries to pay their pro-rata share of the debt.


It's for this reason that people often opt to qualify any proceeds from a settlement as wrongful death proceeds, because creditors are not entitled to reimbursement out of a wrongful death settlement.



O.C.G.A. § 53-7-40

O.C.G.A. § 53-7-43

O.C.G.A. § 51-4-2(e)

Nash v. Allstate Ins. Co., 256 Ga. App. 143, 567 S.E.2d 748 (2002)


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9)  What if the Defendant dies before a claim can be pursued?

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If defendant or other wrongdoer dies before a claim can be made against them, this does not mean the claim against the defendant is extinguished or terminated.


Instead, the claim can still be pursued against the deceased defendant via their personal representative.



O.C.G.A. § 9-2-41


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10)  Are punitive damages allowed against a deceased defendant?

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No, punitive damages are not permitted against the personal representative of a deceased defendant. 


The purpose of punitive damages is to punish and deter, so that purpose is lost when the defendant is deceased.



O.C.G.A. § 9-2-41


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