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Personal Injury and Probate: Death of a Party or Witness, Settlement With Minors, Hearsay Challenges, Tax Exigencies

Note: CPE credit is not offered on this program

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, September 29, 2021

Recorded event now available

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This CLE course will review what personal injury lawyers need to know about the probate process in several different situations including the effect failure to have an estate representative appointed may have on your case. The panel will discuss what needs to be done if the plaintiff or defendant dies pre-suit versus after the commencement of litigation. Second, the panel will review hearsay issues caused by the death of a material witness and the ability to rely on the Federal Rule of Evidence 801(d)(2) and state counterparts. Third, the program will address settlements with or on behalf of minors and the requirements of probate. Finally, the program will highlight issues about future income and estate tax liabilities for the plaintiff and the plaintiff's heirs.


Personal injury attorneys can encounter probate issues at any point in a case through the death of a client, death of an individual defendant, death of a material witness with unique testimony, settling claims involving minors, or concerning estate tax issues. Personal injury lawyers need to appreciate the differences between survival actions and wrongful death claims and the role of the probate court in each. Counsel must also anticipate dealing with different sets of interested parties and beneficiaries.

Sometimes the testimony of a decedent who is a party is critical to liability or even damages. Statements made to third parties by a speaker who does not recover do not always fit neatly into an exception to the hearsay rule. The circuit courts are split regarding whether statements of the deceased are admissible against the deceased's estate.

Listen as the experienced panel of probate attorneys and personal injury attorneys discusses probate issues in personal injury matters.



  1. Overview of probate
  2. Death of plaintiff, pre-suit and post-suit
  3. Death of defendant, pre-suit and post-suit
  4. Admitting the testimony of decedents through FRE 801
  5. Future income and estate tax issues


The panel will review these and other significant issues:

  • When a client dies, what are the attorneys' ethical obligations, who is the client, and is probate required?
  • If the individual defendant dies, what can and should the plaintiff do?
  • When is court approval required for a settlement involving a minor?
  • Is a witness' statement about what the decedent supposedly said a classic case of hearsay?
  • Are the decedent's statements admissible against the estate?
  • Are attorney's communications with the decedent protected by the attorney-client privilege?


Edwards, Valerie
Valerie Edwards

Antonoplos & Associates

Ms. Edwards handles cases in real estate, estates & trusts, and contract law. Her specialties include complex...  |  Read More

Smith, Emily
Emily Smith

The Johnson Firm

Ms. Smith is an attorney licensed in Texas and California who joined the firm in August of 2016. The majority of her...  |  Read More

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