A common misconception is that a family member can immediately file a wrongful death lawsuit as soon as a loved one passes away due to negligence. However, the process isn’t quite that straightforward. Before a wrongful death claim can be initiated, certain legal prerequisites, including probate proceedings, must be met.
What is Probate?
Probate is a legal process that occurs after someone dies, with or without a will. It involves validating the deceased person’s will (if one exists), identifying and inventorying their assets, paying debts and taxes, and finally distributing the remaining property as directed by the will or state law. In the context of a wrongful death claim, probate is essential because it establishes who has the legal authority to bring the lawsuit on behalf of the deceased person’s estate and surviving family members.
With a Will: The Role of the Personal Representative
If the deceased person had a will, it usually specifies who they wanted to serve as their personal representative (also known as the executor). The personal representative has several important responsibilities, including:
- Probate Proceedings: The personal representative must initiate probate proceedings in court. During these proceedings, the court will validate the will and officially appoint the personal representative to act on behalf of the deceased’s estate.
- Legal Claims: The personal representative also has the right to prosecute any pending legal claims that the deceased person may have had, including filing a wrongful death lawsuit.
- Hiring a Lawyer: In wrongful death cases, the personal representative hires an attorney to pursue the claim on behalf of the survivors, such as the spouse, children, or other relatives of the deceased. This lawyer will guide the representative through the process and handle the legal complexities of the case.
Without a Will: Determining the Personal Representative
If the deceased did not leave a will, the probate court will hold a hearing to appoint a personal representative. This representative is typically a close family member, such as a spouse, adult child, or parent. The court’s decision will consider various factors, including the preferences of the deceased’s heirs and their suitability to manage the estate’s affairs.
The Connection Between Probate and Wrongful Death Claims
Once the probate court appoints a personal representative, the wrongful death claim can move forward. It’s crucial to understand that the personal representative acts on behalf of the deceased’s estate and the survivors. The representative is responsible for working with the attorney, making decisions regarding the lawsuit, and ensuring that any awarded compensation is distributed according to the law or the deceased’s will.
Stages of Bringing a Wrongful Death Case
- Initiating Probate: Before a wrongful death lawsuit can begin, the estate must go through the probate process. This stage includes validating the will (if one exists) and appointing a personal representative.
- Appointment of a Personal Representative: If there is no will, the court appoints a personal representative to manage the estate’s affairs and handle the wrongful death claim.
- Filing the Wrongful Death Claim: Once the personal representative is in place, they can hire an attorney and file the wrongful death claim in the appropriate court. This step involves gathering evidence, interviewing witnesses, and building a case to prove that the death resulted from someone else’s negligence.
- Litigation and Settlement: The case may proceed to litigation if a settlement cannot be reached. The personal representative, with their attorney, will present the case in court, aiming to secure fair compensation for the survivors.
Navigating a wrongful death claim can be overwhelming, especially during such a difficult time. Understanding the legal stages, particularly the importance of probate, can help you make informed decisions and protect your rights. If you find yourself in this situation, consult with an experienced wrongful death attorney who can guide you through each step and ensure your loved one’s legacy is honored.
OUR LAWYERS CAN HELP
Losing a family member due to the negligence of others is a tragic occurrence that no family should have to endure. Zarzaur Law’s Pensacola wrongful death attorneys will work to hold them accountable and get your family the justice you deserve.
BE CONFIDENT YOU HAVE AN EXPERT WRONGFUL DEATH LAWYER ON YOUR SIDE.