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An injury claim does not die with the injured person — but it cannot move forward without someone legally authorized to pursue it. That authorization comes from the probate of the estate, and getting it right protects both the lawsuit and the family waiting on its outcome.
In short: When someone dies with a personal injury claim — from a car wreck, a fall, medical malpractice, or any other harm — the claim survives as an asset of their estate. Only a court-appointed personal representative has the authority to pursue, settle, or continue it, which makes opening the probate case the first and unavoidable step.
The critical distinction: A survival claim compensates for what the injured person suffered before death from an unrelated cause; a wrongful death claim applies when the injury itself caused the death. They follow different rules, benefit different people, and are treated differently by creditors — and some situations involve both.
The clock keeps running: The statute of limitations on the underlying injury claim — generally two years in Alabama — does not pause politely while the family grieves. Probate has to move fast enough for the personal representative to be appointed and act before the deadline.
The cost: Phone consultations on probate matters are free; in-person consultations are $100. Probate fees are quoted flat at the consultation, separate from any injury litigation handled on contingency.
Where This Fits in Alabama Probate
Survival Claims vs. Wrongful Death Claims in Alabama
Survival Claim — This Page
The person was injured, had a claim for that injury, and later died of something else. The claim survives to the estate, compensates for what they suffered — medical bills, lost wages, pain before death — and its proceeds become estate assets: subject to creditor claims and distributed under the will or intestacy law.
Wrongful Death Claim
The injury itself caused the death. Alabama treats this very differently: damages are punitive, proceeds pass directly to the heirs outside the estate, and creditors cannot touch them. If that is your family’s situation, our wrongful death estates page covers it in full — and some cases involve both claim types at once.
Getting the classification right at the outset matters enormously — it determines who benefits, what creditors can reach, and how any settlement should be structured. It is one of the first things we analyze.
Unique Challenges in Estates Holding Injury Claims
Authority Has to Exist Before Anyone Can Act
Settlement negotiations, court filings, even signing a release — none of it is valid without a duly appointed personal representative. If the injured person had a lawsuit pending when they died, the case pauses until the estate is opened and the representative is substituted in. Delay here is delay everywhere.
Creditors Are Watching the Proceeds
Survival claim proceeds are estate assets, which means medical providers, health insurers with subrogation rights, and other creditors can reach them. Managing the creditor claim period, negotiating liens, and sequencing the settlement against the six-month bar can meaningfully change what the family actually receives.
Settlements May Need Court Approval
Depending on the estate and who the beneficiaries are, settling the claim can require probate court involvement — particularly where minors have an interest. An approval done properly protects the representative from second-guessing later; skipping it invites exactly that.
Two Cases, One Strategy
The probate case and the injury case have to move in coordination — the representative appointed in time for the limitations deadline, the inventory reflecting the claim, the distribution waiting on the resolution. We keep the probate side synchronized with the litigation, whoever is handling it.
How We Handle an Estate With an Injury Claim
The probate moves on the litigation’s schedule — and never the other way around.
Free Phone Consultation
We identify the claim type — survival, wrongful death, or both — check the limitations deadline, and map what the estate needs. Probate fees are quoted flat.
Open the Estate Promptly
The petition is filed in the correct county and the personal representative is appointed — on a timeline driven by the injury claim’s deadlines, not the courthouse’s convenience.
Substitute Into the Claim
With Letters in hand, the representative steps into the injury claim — continuing a pending lawsuit or asserting the surviving claim — and the negotiation or litigation proceeds with proper authority.
Administer Around the Claim
Creditor notice runs, liens and subrogation claims are addressed, any required court approvals for settlement are obtained, and the rest of the estate is administered in parallel.
Distribute and Close
When the claim resolves, proceeds are collected into the estate, valid claims are paid, and the remainder is distributed under the will or intestacy law — documented, final, and closed.
Estates With Injury Claims — Frequently Asked Questions
1.My loved one had a lawsuit pending when they died. What happens to it?
The lawsuit does not end — but it pauses. The court will not let the case proceed until a personal representative is appointed through probate and formally substituted as the plaintiff. Opening the estate promptly is what gets the case moving again, and it is usually the very first thing we do.
2.Do we have a deadline?
Yes, and it is the reason not to wait. Alabama’s statute of limitations for most injury claims is two years, and the clock generally keeps running after death. The estate must be opened and the representative appointed in time to preserve the claim — call sooner rather than later so we can check exactly where your deadline stands.
3.Who gets the money from the injury claim?
For a survival claim, the proceeds enter the estate: valid creditor claims are paid first, and what remains passes under the will or Alabama’s intestacy statutes. This is the key difference from wrongful death proceeds, which bypass the estate and go directly to the heirs free of creditors — and it is why identifying which claim you have matters so much.
4.Can medical providers and insurers take part of the settlement?
They can try — through the estate’s creditor claim process and through subrogation liens on the recovery itself. Both are manageable: the six-month claim bar cuts off late creditors, and liens can often be negotiated down substantially. Handling these correctly is frequently worth more to the family than any other part of the administration.
5.Do you handle the injury lawsuit too, or just the probate?
We handle the probate and coordinate seamlessly with injury counsel — whether that is a firm already on the case or one we help you engage. The estate work and the litigation are separate engagements with separate fee structures: probate is quoted flat, and injury litigation is typically contingency-based with the attorney handling it.
6.What if the estate has almost nothing in it except the claim?
That is common, and the estate still must be opened — the claim itself is the asset that requires administration. The good news is that a thin estate is usually a simpler one: fewer assets to inventory, fewer complications, and a probate that exists mainly to create the authority the claim needs and then distribute what it produces.
Protect the Claim — Open the Estate Right
One free phone call identifies the claim type, checks the deadline, and maps the probate the claim needs. The clock is the one thing we cannot negotiate with — call early.
Our Service Includes
✓ Claim classification — survival, wrongful death, or both
✓ Estate opened on the litigation’s timeline
✓ Personal representative appointment and substitution
✓ Creditor claims, liens, and subrogation handled
✓ Court approvals for settlement where required
✓ Coordination with injury counsel throughout
Call the Office Nearest You
Birmingham — (205) 201-1789
Chelsea — (205) 677-5490
Huntsville — (256) 665-9473
Montgomery — (334) 782-9938
We handle these estates statewide, with local representation available through our Birmingham probate attorneys.
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