The death of a loved one brings a flood of negative emotions that can be extremely difficult to surmount. But a death caused by another’s choices to consciously or carelessly violate safety rules, or engage in other reckless conduct, can add a layer of additional anger, resentment, frustration that can prove overwhelming. Sometimes, the pursuit of another’s wrongdoing is necessary to allow for healing and bring peace to a family marred by such a tragedy. If, God forbid, you ever find yourself in such a situation, there are a few things to keep in mind as you explore the potential for your family to file a wrongful death claim.
First, wrongful death claims are different from other types of personal injury claims in that they must be brought on behalf of the deceased’s Estate. This means an Estate must be opened even if your loved one died debt free, with very few assets, and with a Will that bequeathed all of their assets without any heir disputes. The opening of an Estate requires a living person to be appointed by the Court of the county in which your loved one lived to act as the living representative of the Estate and transact on behalf of the Estate. The person so appointed is often called the Administrator (in situations where a loved one dies without a Will) or the Executor (if there is a Will), but regardless of the nomenclature, the functions and duties of the appointed person are the same.
In terms of function in a wrongful death case, the appointed representative would perform activities like the signing legal contracts and records authorizations, give testimony on the issues involved in the case, and appear at trial on behalf of the Estate. In terms of duties, the appointed representative acts under a fiduciary duty – a legal concept that requires the appointed representative to act with equal regard to each and every person that is eligible to receive money or assets from the Estate, including money recovered in a wrongful death case. A fiduciary duty is a very serious duty that forbids that appointed representative, who is almost always an heir also, from acting in their own best interest at the expense of the other heirs.
If wrongful death proceeds are recovered, the appointed representative is responsible to petition the Court to approve the distribution of those proceeds to each of the heirs and to provide notice of any Court hearing on the distribution to the heirs. Then, once the Court approves the proposed disbursement of wrongful death proceeds, it is the Estate representative’s duty to see that each heir receives their approved portion of the proceeds, and close the Estate with the Court.
Although the Estate process may seem a bit daunting, qualified legal counsel will ensure that the process proceeds as smoothly, efficiently, and non-intrusively as possible. If you are considering pursuit of a wrongful death case, you should contact qualified legal counsel right away to help guide you through this process.