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Form WD-2 (Wrongful Death Petition) SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF _______________________________ ------------------------------------------------------------------- X In the Matter of the Application of ________________________________________, PETITION as Administrat____ of the Goods, Chattels File No._______ and Credits which were of (as of 4/98) ____________________________________, Deceased, For leave to compromise a certain cause of action for wrongful death of the decedent and to render and have judicially settled an account of the proceedings as such Administrat____ --------------------------------------------------------------------X TO THE SURROGATE'S COURT: It is respectfully alleged: 1. Petitioner ___________________________ is the ______________ of the above-named decedent and presently resides at ____________________________________________________________________. 2. The decedent died a resident of __________________, County of __________________, New York on _____________________, and had resided there with . 3. On ____________________, Letters of Guardianship of the person and property of _________________________, infant son/daughter of the decedent (copy attached), were issued to your petitioner by the Surrogate's Court, ________________County. 4. On ___________________Limited Letters of Administration of the Goods, Chattels and Credits which were of ________________________________, deceased, were issued to petitioner by the Surrogate's Court of ____________ County, which letters were of limited authority and restrained your petitioner from compromising or collecting upon said claim for wrongful death until further order of this court. To date, said letters have not been revoked and are presently in full force and effect. No bond was required of your administrat____ to cover any probable amount to be realized from said action. Form WD-2 Page 2 5. The decedent at the time of death was employed as a ___________________ by ________________ _______________________ at , earning approximately $____________ per week. 6. The decedent at the time of death was _____ years of age, having been born on _________________. 7. The injuries that resulted in the decedent's death were sustained on [give date, time] ______________________________________ at [location] ________________________________________. [Describe fatal incident] ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ _______________________________________________________________________________________. 8. The decedent was taken to _______________Hospital where he/she died on __________________at or about ______a.m./p.m. of that day without having regained consciousness. [Describe circumstances, e.g., length of hospitalization, etc. resulting in death __________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ _______________________________________________________________________________________. Decedent did not regain consciousness, and all of the proceeds of the settlement of the action are to be allocated for wrongful death and not for conscious pain and suffering. Form WD-2 Page 3 9. A combined action for decedent's wrongful death and conscious pain and suffering was commenced against the defendant . [Include references to court where action commenced, pleadings, etc.] Thereafter, negotiations were entered into with the representative of ________________ Insurance Company, and a final offer has been made to settle this claim for the sum of $ out of maximum insurance coverage of $ . 10. An investigation of the personal resources of the defendant_________________________________ has been undertaken and it has been discovered that [provide details as to assets] _________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ _______________________________________________________________________________________. 11. Petitioner believes that it is in the best interests of the distributees and the estate of the decedent and those interested therein to accept the settlement so offered and that this is the largest amount that can be obtained without further litigation. 12. The grounds of petitioner's belief are [indicate reasons why acceptance of the settlement is advisable] _______________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ _______________________________________________________________________________________. 13. The decedent at the time of death was married and left the following survivors: Name Relationship Date of Birth Present Age _____________________ ________________ _______________ _____________ _____________________ ________________ _______________ _____________ _____________________ ________________ _______________ _____________ _____________________ ________________ _______________ _____________ _____________________ ________________ _______________ _____________ _____________________ _________________ _______________ _____________ _____________________ _________________ _______________ _____________ _____________________ _________________ _______________ _____________ Form WD-2 Page 4 14. On , Petitioner retained Esq. of as his/her attorney (a copy of the retainer agreement and affidavit of legal services are attached). In view of the results achieved, petitioner would request the court to approve a fee as follows: That the attorney's disbursements in the sum of $ first be deducted from the gross settlement of ____________________; that of the balance of $ a fee of $ or _________ % be allowed, which together would amount to total compensation of $ . 15. Petitioner has been advised that the proceeds of an action for wrongful death are allocated according to the pecuniary loss sustained by the widow/widower and infants. Petitioner has further been advised that the share of the petitioner and the children are computed in accordance with the years of dependency each of the survivors could look forward to but for the decedent's death. At the time of death, decedent was years of age, having been born on and having died on and had a life expectancy of years, based on the table of vital statistics, United States Health Department - copy attached. As petitioner as husband/wife and widower/widow was born on________________ and had a life expectancy of ______ years, the life expectancy of the decedent must be used. Therefore, the years of dependency are as follows: Anticipated Percentage Age on Date Years of Net Amount Name of Death Dependency of Settlement ____________________ ______________ _____________ __________________ ____________________ ______________ _____________ __________________ ____________________ ______________ _____________ __________________ ____________________ ______________ _____________ __________________ ____________________ ______________ _____________ __________________ ____________________ ______________ _____________ __________________ Form WD-2 Page 5 NOTE: WHERE RECOVERY OR PART THEREOF IS ALLOCATED TO CONSCIOUS PAIN AND SUFFERING, THE PROCEEDS PASS THROUGH THE DECEDENT'S ESTATE EITHER IN ACCORDANCE WITH THE PROVISIONS OF HIS/HER WILL, OR IN THE EVENT OF INTESTACY, IN ACCORDANCE WITH EPTL 4-1.1. 16. All of the above persons are of sound mind and full age (except for the infant _________________) and are citizens of the United States. 17. Petitioner as administrat_____ hereby waives any claim for statutory commissions and waives the filing of a surety bond. 18. Decedent's funeral bill in the sum of $___________ has been paid by . Annexed hereto is the paid bill. No reimbursement is sought. There are no medical bills or hospital bills outstanding, and there are no assignments, compensation claims or liens filed with petitioner as administrat____ except for the following: a) The Commissioner of Social Services has submitted a claim of $_______________ for public assistance rendered to decedent and his/her family for the years . This claim is rejected since the Department would have a lien only against a recovery for conscious pain and suffering, which would be an estate asset, and here there is to be no recovery for conscious pain and suffering. b) _________________________________ has submitted a claim for___________________________ based on an _______________________________________________________________________________ ________________________________________________________________________________________. This claim is also rejected for the same reasons as the rejection of the claim of the Department of Social Services. (List other creditors, if any)___________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ Form WD-2 Page 6 c) Decedent's father/mother ________________________________, seeks a share of the recovery by claiming the suffering of a pecuniary loss by virtue of decedent's death. This claim is rejected on the grounds that in spite of any possible demonstrated pecuniary injury, decedent's father/mother is nevertheless a nondistributee and thus ineligible to share in the recovery. 19. [If applicable] During the years through _______________, the decedent was the recipient of public assistance in the form of Aid to Dependent Children. 20. No previous application has been made for the relief sought herein. 21. Petitioner desires leave of this court to compromise and settle with __________________________ Insurance Company the claim against___________________________________________________________ for the wrongful death of the decedent, to discontinue the action for conscious pain and suffering and to fix reasonable attorney's fees and to pay the distributees their share of the settlement pursuant to the provisions of law (and to settle the account of the Administrat____). 22. The only persons interested in this proceeding entitled to notice thereof are the following: Name Relationship Address ______________________ Husband-Administrator ___________________________ ______________________ Wife-Administratrix ___________________________ ______________________ Daughter ___________________________ ______________________ Son ___________________________ ______________________ Father ___________________________ ______________________ Mother ___________________________ ______________________ Alleged Creditor ___________________________ NYS Tax Comm. Possible Creditor ___________________________ Dept. Social Services Possible Creditor ___________________________ Form WD-2 Page 7 ______________________ Defendant ____________________________ Insurance Co. Defendant's Ins. Co. ____________________________ None of the above are under a disability except , an infant under the age of fourteen years. 23. Petitioner has not become interested in the within matter at the instance of the defendant or anyone acting on defendant's behalf, directly or indirectly. WHEREFORE, your Petitioner prays that a Citation herein be directed to the following: NAME ADDRESS ___________________________________ ________________________________________ ___________________________________ ________________________________________ ___________________________________ ________________________________________ ___________________________________ ________________________________________ ___________________________________ ________________________________________ [List names of distributees and, if applicable, Department of Social Services, New York State Tax Commission, Defendant, and Defendant's Insurance Company.]requiring them to show cause as follows: (include as applicable)________________________________________________________________________________ ________________________________________________________________________________________ _______________________________________________________________________________________. WHY the administrat___ should not be authorized and empowered to compromise and settle a certain claim for the wrongful death of the decedent, against _____________________________________________ for the sum of $ to discontinue the action for conscious pain and suffering, and WHY the entire recovery of $ should not be allocated to the cause of action for decedent's wrongful death, and WHY the provisions in the Letters of Administration heretofore issued to your petitioner on ________________ restraining the administrat____ from compromising or collecting upon the aforesaid claim Form WD-2 Page 8 should not be modified to permit said compromise, and WHY the filing of a bond should not be dispensed with, and WHY the account of as Administrat_____ in this proceeding, should not be judicially settled, and WHY defendant or defendant's insurance company should not pay to the firm of ______________________Esqs. out of the proceeds of the settlement for the claim of wrongful death, the sum of $ as and for attorney's fees, together with disbursements of $______ , and WHY , the balance of the settlement, to wit the sum of $ should not be distributed to those distributees having sustained a pecuniary loss as follows: _____% of the balance to _________________, widow/widower of the decedent; _____% of the balance to , child of decedent; _____% of the balance to , child of decedent, and WHY the claim of the Department of Social Services should not be rejected as a nondistributee, and WHY the claim of _____________________________ should not be rejected as a nondistributee, and WHY the claim of _______________________ in the amount of $_________ should not be rejected, and WHY upon payments as hereinbefore mentioned by the said defendant _______________________ or defendant's insurance company, the ________________ Insurance Company, the petitioner, as administrat____ of the goods, chattels and credits that were of _____________________________, deceased, should not execute and deliver to the said defendant, ______________________, or defendant's Insurance Company a full, final and complete release in the claim against them arising out of the aforesaid cause of action together with any Form WD-2 Page 9 other papers necessary to effectuate said compromise. Dated: ________________________ Petitioner STATE OF NEW YORK ) ) ss.: COUNTY OF __________) ______________________________ being duly sworn, deposes and says, that he/she is the petitioner in the within action, that he/she has read the foregoing petition and knows the contents thereof that the same is true of his/her own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters he/she believes them to be true. _________________________________ Sworn to before me this ____ day of _______________,_____. _______________________________ Notary Public (affix stamp or seal) Signature of Attorney: ___________________________________________________________________ Print Name: ___________________________________________________________________________ Firm Name: Tel. No.: ___________________ Address of Attorney: _____________________________________________________________________