Basic Steps to Estate Administration and Probate

When a person loses a loved one, they not only need time to go through the grieving process, but need some direction on how to deal with their loved one’s estate.  It seems that “free advice” is everywhere — from Uncle Fred to cousin Jim — who went to law school.  They all mean well, but they are all saying different things.  What about “step-by-step” advice?  Here are a few steps to help you:

  1. Identify and secure all property.  This means physically locking up your loved one’s house — including sheds, garages and automobiles, and securing the keys.  You simply want to make sure the property is safe from criminals or vandals while the probate process takes place.
  2. Inventory the property.  You will want to write down a list of the decedent’s property.
  3. Relocate Rover.  If a loved one died with a family pet, immediately take steps to place the pet with another family member, friend, or shelter.
  4. Request certified copies of the death certificate.  In most places you can obtain certified copies of a death certificate from the funeral home, or, in the State of Arkansas, you can order one through:  You will need several “original” or certified copies of the death certificate, because most public or private businesses such as insurance companies or banks will need an original or certified copy to process claims.
  5. Contact Social Security.  Social Security must be notified following the death of a loved one.  You may call the toll free number at 1-800-772-1213.  When you call, you will need the decedent’s social security number, and you will need to be prepared to identify yourself with your own social security number.
  6. Identify certain assets which “pass outside of probate.”  Even when a person has a will or a trust, not all property the decedent owned at death will necessarily be distributed as set forth in the Will or Trust.  This is because the decedent may have a co-owner of property, or may have had beneficiary designations to a person other than as named in the Will.  “Title” and beneficiary designations are often used to pass property upon the death of another, which essentially pass as a matter of contract — and not by virtue of the terms of a Will or Trust.  Bank accounts often have a “payable on death” or “POD” provision, which provides that the account will pass automatically to the person named on the account with the bank — even if a different primary beneficiary is named in the Will.  Also, life insurance funds are paid to the named beneficiary — who may be someone entirely different from the beneficiaries of the Will.
  7. Initiate Insurance Claims.  Check among the estate planning or other papers of your loved one for life insurance policies.  Call your loved one’s insurance agent, or the claims office indicated on the policy documents and initiate the claims process.  Usually, a certified copy of the death certificate, and a short application is all that is needed to initiate the claim.
  8. Locate estate planning documents and contact a probate attorney.  Most of the time, families will need the assistance of an attorney to properly administer and appropriately distribute a decedent’s property.  By law, the decedent’s property must be distributed to certain creditors (bills must be paid), and it is only after appropriate arrangements are made with creditors are the assets distributed in accordance with the decedent’s Will.  In many cases, a person may die without a Will, or a Trust may be in place.  Even when a loved one made excellent plans, the assistance of an attorney is needed to ensure that the terms of the Trust are followed in the appropriate method, and the proper documentation of distribution is made.

At Byars & Hall, P.L.L.C, we are glad to help you through the estate administration process.  In addition, if you believe that someone is trying to take or has already taken advantage of your loved one through undue influence or fraud in connection with a Will or Trust, we are here to help.

Personal Injury Litigation FAQs

Litigation 101:  The Basics and Terminology

What constitutes a personal injury case? What does that phrase mean?

“Personal injury” is a phrase that describes the kinds of cases that deal with physical injury to the body. Some examples would include car accidents, defective products (known as “products liability”), heavy truck or 18 wheeler collisions, premises liability (injuries while visiting a business) and medical malpractice.

What do you mean by “damages” in a personal injury case?

The word “damages” refers to a monetary figure assigned to compensate a plaintiff in a personal injury case for his or her losses and injuries.  Damages includes property damage, lost wages or loss of earning capacity, pain and suffering – which can be significant, medical expenses (both past and future), and mental or emotional anguish.

I’ve been told that I “assumed the risk” in my accident. What does that mean? Can I still bring a case?

Assumption of the risk is a legal concept that sometimes works to limit or preclude recovery in a personal injury case. If a plaintiff is aware that what he’s doing is an activity that carries inherent risks, and chooses to engage in that activity anyway, despite knowing the risks, in some jurisdictions that plaintiff is deemed to have “assumed the risk” of his activity, and thus may not recover as much in damages. However, in Arkansas, the concept of “comparative fault” is used to allow for the fact finder to allocate the degree of fault, instead of precluding recovery for an injury from “assumption of the risk”.

I’ve been diagnosed with a herniated disc after my accident. What does this mean?

A herniated disc is an injury to the vertebrae of the spine in which the material inside the disk is pushed out through a weakened area of the disk, due to trauma, injury, or congenital issues. Here’s an excellent resource on herniated disks from the U.S. National Library of Medicine.

I suffered personal injuries in a truck accident. Can you represent me?

Yes, our firm has handled several litigation cases that resulted from accidents involving trucks. The trucking industry is subject to a number of additional laws on the federal level, which can complicate an otherwise straightforward set of facts. If your injuries are due to an accident in which a truck was involved, make sure you choose an attorney with specific experience litigating in this context.

I was injured as a result of a doctor’s negligence. Do you handle these kinds of cases?

When a person is injured as a result of the negligence of a doctor or other medical care provider, this is known as medical malpractice. We do handle medical malpractice, and offer a free consultation and case assessment. To get started, call us at 479-494-1800.

Damages and Compensation

Will I be able to collect money to compensate me for my injuries from an accident in Arkansas? Can you figure out how much my case is worth?

Every case is different, and the only way one can tell whether you have a solid case – (a case likely to prevail at trial or in settlement negotiations) is by a consultation, where you and I can discuss the facts of your case. If you’re ready for a consultation, you can use this form to get in touch with me, or you can call my office at 479-494-1800.

(If for any reason, you do not get a prompt response to the internet form, please call us at 479-494-1800. If an attorney is not immediately available, because of depositions or proceedings in another case, one of our assistants can get started on your case right away.)

If I was injured in an accident that was someone else’s fault, how does the court calculate my damages?

Arkansas recognizes the concept of comparative fault. Although most cases will settle prior to trial on the merits, if a case goes to a jury, the jury will determine, or “allocate” the degree of fault among the various persons involved. The percentage of fault of the person claiming damages will reduce the total damage award by such percentage of fault. For example, if a jury decides you are 10 % “at fault” for an accident, and award $100,000.00 in damages, the award would be reduced to $90,000.00.

How long will it take for me to receive financial compensation in my personal injury case?

Once again, every case is different. If your medical treatment has concluded, and there is no dispute as to the reasonable and necessary medical treatment, the resolution can be very soon after the initial demand. If, however, you are still obtaining medical treatment for your injuries, or if the case is disputed; we will advance your cases with diligence, but it is difficult to predict when the case may ultimately reach a judge or jury – or a mutual settlement.  In such cases, we simply advance the case towards a trial date as soon as practical under the circumstances.

How much money is my accident case worth if we settle? What about if we go to trial?

As noted above, every case is different, and even a small alteration in the facts of a case can result in a very different outcome. Many factors should be taken into consideration before deciding to accept or reject a settlement offer. Generally speaking, one would evaluate the maximum reasonable “exposure” the other side will face at trial, and that amount is then discounted based on the chance to prevail. Comparisons are made with similar facts to arrive at a fair settlement amount.

Arkansas Insurance Law

What is uninsured/underinsured motorist coverage?

These kinds of insurance coverage were developed to help injured drivers and passengers take care of medical bills and other damages where another party was at fault but where that party’s insurance coverage was lacking, either in part or in full.

Uninsured and underinsured insurance coverage are similar –  in that they both are designed to compensate an individual who is injured by another person’s vehicular negligence.

Studies show that roughly 14% of drivers in the U.S. are uninsured. As a result, uninsured coverage is somewhat more common than underinsured coverage.

Sometimes referred to as “UIM” coverage, Arkansas allows for the recovery of a 12% penalty plus attorney fees in the event an insurance company wrongfully refuses to pay the appropriate UIM coverage to a policy owner.

I received an offer from the insurance company that seems too low to me.  How did the insurance company come up with this figure?

This is a question we seek to have answered in UIM litigation. There must be some rational justification for the settlement amount, which must be fair and appropriate to the situation.

My medical bills were paid by my insurance. Do I still have a case against the person responsible?

Yes. Even though you may have insurance coverage which initially pays for the medical expense, you are entitled to recovery from the negligent party. When your own insurance coverage pays, it is generally known as a “collateral source” of payment, and the negligent party does not get “credit” for payments made by a “collateral source”. In fact, in most situations, the “collateral source” may attempt to assert a claim for reimbursement or “subrogation” to the recovery against the negligent party, but Arkansas law recognizes that the right of subrogation generally does not arise unless and until the injured party is “made whole”.

Litigation and Courts

Will I have to go to court and testify?

It is possible, yes. But if that happens, you will have plenty of notice from our office and the court as to when that will occur. Additionally, we will help you prepare for your day in court extensively, and we are available to answer your questions. You should be aware that cases often settle right up until the very last moment before the trial starts. Just because a trial has been scheduled, that doesn’t mean that you will definitely have to take the stand. You should never assume that you will not have to testify.

If I decide to sue the person or persons responsible for my injuries, what can I expect? Will it take up much of my time?

Litigation can take a substantial amount of time from the filing of the complaint through the jury verdict. Every case is different and it depends upon many different facts and circumstances we will be glad to discuss in person.

I’m not sure if I want to bring a case in court. Do I have to make up my mind in a certain amount of time?

Yes. A special kind of law called a statute of limitations prescribes a certain amount of time in which lawsuits regarding specific issues must be brought, or else they are forever more time-barred. In Arkansas, the statute of limitations for personal injury cases is three years from the date of injury (in some limited cases, it may run from the date the plaintiff discovers or should have discovered her injury).  Medical malpractice cases have a two (2) year statute of limitations.

Should I accept a settlement or go to trial?

Deciding whether to accept a settlement or press on with litigating a case is a complex and highly personal decision. It is always up to you, as the client, to accept or reject a settlement offer. We will discuss the matter with you and make a recommendation based on the facts particular to your case.

Hiring and Working with an Attorney

Do I need a lawyer to pursue a personal injury claim in Arkansas?

Not every case requires an attorney to be involved, but when you or a loved one suffers a serious injury, we highly recommend you hire counsel. There are many issues you will need to deal with even in a relatively “simple” case. For example, what is the true value of the case? How does one negotiate the claims made by an insurance company for reimbursement out of the recovery?

Very often the insurance companies want to quickly settle your claim for the minimum amount they think the injury is worth, not taking your particular circumstances into account nor any future medical care you might need.

When seriously injured in any type of accident, it is always best to retain your own personal injury attorney. You need someone who has your interests in mind and will ensure you are compensated for every aspect of your claim, including property damage, medical costs, rental vehicle expenses, lost wages or loss of earning capacity and for the pain and suffering the injury has caused.

How do I go about choosing a competent personal injury attorney in Arkansas? What questions should I ask?

You should definitely inquire about the attorney’s experience – not merely as an Arkansas attorney (i.e., “What year were you admitted to the bar in this state?”) but also as a personal injury trial lawyer. Other questions you might want to think about posing:

  • How often do you take personal injury cases like mine to trial?
  • What kinds of documents will I need to provide you?
  • Have you handled cases with similar fact patterns to mine before? What were the results, generally speaking? What is your success rate with similar cases?
  • What are my financial obligations if we don’t win my case?
  • What do you think of my case, generally? Do I have a good case? What is your plan for going forward, if I choose you to represent me?

How much will an attorney cost? How can I pay my lawyer if I’m out of work, due to my injuries?

We represent personal injury plaintiffs on what’s called a contingency fee. That means you don’t pay us any fees unless we win damages for you.

What does a “contingency fee” mean?

A “contingency fee” (sometimes called a “contingent fee”) is a particular kind of agreement between an attorney and a client whereby the attorney agrees to be compensated for his services only in the event that the client recovers money in the client’s case. The attorney’s payment is contingent upon his success in pursuing the client’s matter.

Typically, contingent fee agreements are used in personal injury litigation.  If the client does not settle the case, and does not prevail at trial, then the client owes the lawyer nothing. If the attorney is able to secure compensation for the client, either through settlement or at trial, then the attorney typically takes a percentage of the client’s compensation as his fee.

Who Pays for My Medical Bills in the Event of an Accident?

When you have been injured in an accident, the medical expenses for the necessary treatment is expensive.  X-rays and other imaging processes, such as a CT scan or MRI are quite costly.  Naturally, it will be a legitimate concern as to how these expenses will be paid.

When another person is responsible or liable for the accident, their insurance company will ultimately offer a settlement which should cover the cost of all reasonable and necessary medical expenses you may have incurred.   However, it is a very rare case for the at-fault driver’s insurance company to pay bills as they are incurred.  Instead, the insurance company will offer a lump sum payment to resolve the entire claim at the end.  The process of arriving at the final resolution may take months or even years.  Accordingly, in order to preserve your credit and to prevent having the bills sent to collection, it is normally best to try to pay the bills as they come due.

I recommend that the first line of payment should come from your own automobile insurance policy.  An automobile insurance policy is broken down into various parts.  Most all policies will have a part entitled “personal injury protection” or “PIP”.  This is considered “no fault” insurance coverage because it is available to you regardless of who was at fault.  A driver’s PIP coverage is also available for use by his or her passengers.  The benefits of PIP is that there is usually no deductible or co-pay and PIP will pay for medical expense up to the limits of coverage.  Our office will assist you in obtaining PIP benefits if necessary.

The second place to look for a source of payment of medical expense is your own medical insurance.  This would include Medicare and Medicaid or other health insurance.  Coverage for medical treatment related to an automobile accident is “secondary” and most health insurance companies will only provide coverage after the company has confirmed that there is no PIP available for your use.  After the exhaustion of PIP, health insurance would work the same way it does for your regular healthcare.

It is important to understand that your health insurance carrier and/or Medicare or Medicaid will assert a claim or “lien” on the recovery against the at-fault driver.  When it is time to settle the case, one important consideration is the resolution of any claim or lien which may be asserted by the insurance company, Medicare or Medicaid.  We have experience in dealing with these issues and resolving these claims or liens.

If a person has no PIP and no health insurance, sometimes there are options to obtain treatment from providers who will be willing to “hold” the balance until settlement.  These providers will often place a lien on a client’s claim which legally entitles them to payment before funds can be distributed to a client.

Regardless of the method of payment while your claim is pending, an injured person’s priority should be to obtain the medical treatment they need regardless of how the bill will be handled.  Remember, our goal is to obtain a recovery on your behalf in an amount sufficient to cover all reasonable and necessary medical bills, together with interest and costs on such amount, in addition to amounts which may be owed for pain, suffering, mental anguish, and other elements of damage as may be allowed by law.

If you have questions as to how your medical bills may be paid after an accident, please do not hesitate to contact our office.

Sleep Deprivation and Truck Accidents

The National Highway Traffic Safety Administration recently reported in a study that sleep deprivation plays a role in 30-40% of all truck accidents.  The NHTSA reported that sleep deprivation can decrease a trucker’s alertness and ability to react appropriately to changes in traffic.  These factors increase the risk of an accident, and thereby, the risk of serious injury to everyone on the road.

The results of the study may seem obvious, but the litigation of truck accidents and proving driver fatigue can be extremely complex.  Truck drivers and the companies they work for are required maintain records of their time on the road, and this proof and inferences can be made from the black and white records.  Truck accidents often involve multiple parties, complex federal regulations, and other unique factors which require substantial knowledge and skill in handling such a case.  You need a team of attorneys who will perform a complete investigation into the truck accident in order to identify all liable parties, gather all of the available evidence, and prove the injuries caused by the negligence of the trucker and the company he works for.

Then, of course, truck accidents are not solely caused by the driver, but often are caused by defective equipment or equipment which has not been maintained as it should be.  Your counsel should be prepared to investigate all causes of the accident in order to identify all relevant parties.  Did the trucking company purchase defective brakes from the manufacturer?  The manufacturer or installer of the brakes may also have liability.  This is only one example.  Our office is prepared to handle your truck accident case.  If you have been injured in a truck accident, do not hesitate to contact our office at 479-494-1800.