Effective from 19th July, our Edinburgh office at 16 - 20 Castle Street, Edinburgh, EH2 3AT, will be temporarily closed as we are in the process of relocating. During this period, there will be no staff at this office.

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When someone writes a Will, they need to appoint someone to be their Executor. The Executor of a person’s estate has a number of responsibilities which are wide ranging. They can be as basic as ensuring that the deceased’s post is stopped to more complex matters such as ensuring the deceased’s wishes in their Will are fulfilled. However, what the Executor may not realise is that they can continue any personal injury claim the deceased had ongoing at the time of their death.

As your loved one’s Executor, you essentially “steps into the shoes” of the deceased and you represent the estate in continuing the claim. You will have the power and the responsibility to deal with the claim and give us, the acting solicitors, the necessary instructions regarding the claim. We will treat you as if you were the injured party. Even if a court action has already started, we will lodge the necessary paperwork with the Court to which will allow the Executor to become the party to the action in place of the deceased. We will make the Executor’s taking over of the claim as simple and easy as possible.

However, the above is assuming that the deceased left a Will. If they did not, an Executor needs to be appointed by the Court. This is known as the Executor Dative. The Executor Dative will typically be the surviving spouse or another person entitled to inherit from the estate. This is something our Private Client team can help you with, even if your deceased loved one did not have an ongoing personal injury claim. Once they are appointed, the Executor Dative will the same powers and responsibility as if they were appointed by a Will.

Whether appointed by the Will or appointed by the Court, the duty of the Executor remains the same: to act in the best interest of the estate.  If the claim is successful, any damages awarded will be added to value of the estate upon conclusion of the claim.

It may be that your loved one has passed away due to the injury they sustained as a result of  negligence. It is important to keep in mind that if an individual has passed away in such circumstances, their family are entitled to start a personal injury claim on their behalf. The claim does not need to have been commenced by the deceased prior to their death as it may be that the negligence has not yet occurred for them to have done so. This will apply in cases where the negligence has caused a sudden accident resulting in death, for example. However, it is possible in some cases that the negligence may have occurred prior to the death which has resulted in a disease or illness eventually claiming the individual’s life. In these circumstances, the deceased may already have commenced a claim which can be continued by the Executor.

Regardless of whether a claim has already been commenced or is yet to be commenced by the Executor on behalf of the estate, the Executor will also be able to make their own claim as an individual if the deceased’s death was caused by negligence. Other family members of the deceased will also have a right to claim. These claims will be due to the loss of society of the deceased. More information about this can be read here.

To conclude, just because the injured person has sadly passed away, it does not mean that their right to hold the negligent party to account dies with them. Whether you would like to consider having a Will prepared, whether you are an Executor and want to continue a personal injury claim or even if you just need to be appointed as an Executor of a loved one’s estate, please talk to Thompsons today.

Bloy by Nathan McHardy

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