The unthinkable happens. A loved one is lost in a tragic accident. The shock is too much to bear. The last thing on anyone’s mind is business. There’s a funeral, the stream of relatives and well-wishers, phone calls from distant friends. After that comes the silence and the contemplation of grief. Grief paralyzes. It becomes difficult to think clearly or even to take the first steps to act. Opening an estate is the last thing on the minds of a grieving family, but acting fast is essential, and here are three reasons why.
1) No attorneys or lawyers will reach out to you for at least 30 days.
No doubt the drafters of the Arkansas Rules of Professional Conduct understood this tumultuous sequence of events after a tragic accident. Rule 7.3 prohibits any lawyer solicitation of death claims within 30 days of death. Only Arkansas lawyers who have a “family, close personal, or prior professional relationship” with the deceased may discuss wrongful death claims in person with the deceased’s family for the first 30 days after the death. While the rules have an apparently noble purpose of preventing the intrusion of strange lawyers into the lives of grieving family at a vulnerable time, the Arkansas rules governing wrongful death lawyers don’t necessarily protect the legal interests of the family.
2) Evidence of what really happened disappears, is destroyed, or is forgotten quickly.
Time begins to wear away at evidence immediately. Potential witnesses leave the scene. Faulty equipment or wrecked cars get scrapped. The insurance company or risk management department of the individual or company at fault will have investigators on the scene immediately. An inaccurate narrative of the accident may take hold of the minds of those present. If your loved one was the victim, a case is already being built by the party at fault to minimize the damages to be paid to loved one’s estate. It’s business. Many large defendant’s attorney firms will send investigators to the scene of an accident for major disasters. If your loved one died in a major accident, you should get your own lawyer to the scene of the accident right away!
3) There is a only a 30 day preference for will beneficiaries or heirs as personal representative/administrator/ of the estate.
After 30 days, any qualified person (over 21 and not a felon) can open an probate in Arkansas. This means an estranged family member or other person who does not have the best interest of the rest of the family can interlope. I’ve seen this happen first hand, and it causes more grief. People are shocked to learn that their estranged family member can become administrator, hire an Arkansas wrongful death lawyer to pursue the claim, and cause all manner of family strife.
The 30 day non-solicitation rule after wrongful death in Arkansas has good intentions, but it may actually hurt families with wrongful death claims. Immediately after the accident or disaster is the time to have a law firm investigate, but families of accident victims likely won’t learn this unless they have an Arkansas wrongful death or probate lawyer as a family friend who understands wrongful death claims because wrongful death lawyers cannot solicit employment for 30 days. For the same reason, it is possible that a rogue family member or stranger can gain control of an estate because of the limited preference period for immediate family members as personal representative.