The loss of a loved one is never an easy process to go through emotionally. In addition to the grief, there is the matter of settling the estate. In most cases, the decedent’s estate is handled through probate court. When the loss of that loved one is due to another person’s actions, for example a fatal car accident, the family may have a right to file a wrongful death lawsuit. Many people in similar situations have turned to an experienced attorney who can help facilitate the process as it is a complicated matter. It is also important to note that state laws and statutes may vary. The following information is intended to provide preliminary information on the probate process and how to handle a wrongful death claim.
What to expect during the probate process
Upon the death of an individual, his or her estate is usually processed through probate court. The first step is to authenticate the will and determine the personal representative who will oversee the estate. If there is no will, the estate will be handled according to intestacy laws of the state of the probate court. In addition, when there is no will, the court will appoint a personal representative. The next step is to reconcile any debt against the estate. The personal representative will be expected to settle any debt with creditors by taking from the estate’s assets. The creditors are not entitled to any wrongful death awards, as that money is not considered an estate asset. The personal representative will then distribute assets to beneficiaries as identified in the will. If there is no will, the assets will be distributed according to intestacy laws.
What to expect during a wrongful death lawsuit
To put it simply, a wrongful death case is similar to a personal injury case in a legal sense. The claim must prove that the defendant’s action or inaction directly resulted in the death of the individual. The most common example, is the case of negligence. Consider the all too frequent situation where a driver causes a fatal car accident. That driver breached a duty of care to drive safely and the result was injury to the decedent. Other examples may include intentional harm and medical malpractice.
Most states agree that immediate family members can file a wrongful death lawsuit. That typically includes spouses, children, and parents. The claim can also be filed by the personal representative of the estate on behalf of the family members. The personal representative is typically identified in the will or appointed by the court to oversee the estate. He or she would also likely oversee the wrongful death settlement should it be awarded. State laws determine who is entitled to receive the wrongful death damages and they are likely different from the beneficiaries identified in the will or determined by the probate process.
How an attorney can help
These cases can be complicated to pursue. Not only is there a difficult legal path to navigate, there is a lot of emotional turmoil when pursuing legal action in response to a traumatic event such as the sudden loss of a love one. An experienced attorney can help guide the family in the process.
Thank you to Kamper Estrada, LLP for their input on wrongful death and probate.