If a loved one of yours has passed away due to negligence and the family would like to pursue a lawsuit, you've probably wondered who in the family can actually file the lawsuit.
In this post we'll clarify that for you to help you determine the best way to proceed.
First, we'll define the two main situations a wrongful death lawsuit can begin from, and then discuss the estate and how that generally works.
To begin with, the most significant thing that affects the direction of a wrongful death lawsuit is whether the deceased person had a will or not.
If there is a will:
Every will names a designated person to act as executor. This person is the administrator of all things to be executed within the will, and would also be the person that would file the wrongful death lawsuit.
The will does have to be probated first in order to be executed. In this scenario, it's pretty straightforward as to who files the wrongful death lawsuit.
The only way this changes is if the person named as the executor doesn't want the role, for whatever reason. In that case, they can sign a waiver and pass the role onto someone else. See the next section.
If there is not a will:
In this case, a family member will need to apply to the courts to get someone appointed as the administrator of the deceased person's estate. Only a court-appointed administrator can file the wrongful death lawsuit.
In this application to the courts, the family must identify immediate family members of the deceased. Generally the priority of who would become the administrator follows as:
The spouse, the children, siblings, and parents.
(In the event of a minor being deceased, it would default to the parents first.)
Timelines for applying with the court for an administrator, and it being granted, is usually a few months.
If someone else in the family wants to be the administrator to handle the wrongful death lawsuit, someone other than the procession above, those in line must sign a waiver giving consent to that person being the administrator.
For instance, say the brother of the deceased person wants to be the administrator. For this to happen, the spouse and anyone else in line must waive their own right to do so first.
That's not uncommon in families, as often the person most willing to take on the responsibilities of administering the will and overseeing the lawsuit is not necessarily the spouse or first person the law would look to.
The Estate and How It's Divided
In this case when we refer to the estate what we mean is who receives the benefits of the lawsuit. In other words, who receives the winnings awarded from the lawsuit. This might be different than the estate in the will, which lays out its own inheritances etc.
Generally the estate for the wrongful death lawsuit includes the family members.
The Surrogate Courts Procedure Act spells out the priority, which is generally the spouse first, then parents, then children of the deceased.
Whoever is appointed the administrator may receive 15% of the total winnings of the lawsuit for their role in it, but otherwise being the administrator doesn't necessarily mean they will receive anything.
For instance, a cousin or close personal friend of the deceased may end up becoming the administrator for the lawsuit because the family's grief makes them unwilling to handle overseeing the lawsuit. That friend may take up the mantle of handling it out of love for the deceased, but otherwise that person is not eligible to receive any of the winnings.