Personal Injury Lawyer
As a wrongful death lawyer, I am frequently asked how do family members go about selecting an attorney when a loved is killed in a car accident. According to the Centers for Disease Control, there were 40,231 wrongful deaths caused by motor vehicle accidents in 2017, the last year for which statistics are available. This number is shocking, particularly in light of the fact that automobile manufacturers continually produce safer cars. Several contributing factors are behind the disturbing number of automobile fatalities, including distracted driving, like texting while driving, increased alcohol consumption nationwide leading to drunken driving, increased speed limits, and increased traffic volume, particularly semi-tractor trailers and other large commercial vehicles.
Laws vary by state, but generally, in order to pursue a wrongful death claim arising out of a traffic accident, an estate must be established in the local probate court. Estates are legal entities that have the right to sue or be sued. Further, the estate acts as a representative on behalf of all beneficiaries or next-of-kin of the decedent. It would be inefficient and haphazard if every beneficiary could file a separate lawsuit arising out of a traffic-related fatality. So, only the estate can file suit. When the individual dies with a Will, the Will will designate one individual to act as the executor of the estate. When there is no Will, the laws of intestate succession apply. Generally, a surviving spouse has the primary right to file an estate and act as the estate’s representative. If there is no surviving spouse, or the surviving spouse does not qualify to act as an administrator of the estate, the surviving parents and/or surviving adult children stand in line to file the estate and act as the estate’s representative, called an “administrator.” The executor or administrator of the estate has sole authority to select a personal injury or wrongful death lawyer to investigate the claim and pursue litigation as warranted. If the executor or administrator refuses to pursue a viable claim, other beneficiaries can step in and proceed with litigation. The estate’s representative has no greater right to a portion of any settlement or judgment recovered from a wrongful death claim. In this regard, the representative is merely another beneficiary whose rights are subject to the discretion of the probate court, like any other beneficiary.
While the estate’s representative does not have any greater right to recover from settlement or judgment proceeds, they do have additional responsibilities. In particular, the representative acts as a fiduciary on behalf of all beneficiaries of the estate. This means that they have to act in the best interest of the beneficiaries, including providing them with notice of important developments in any wrongful death litigation, such as any settlement conference or trial date. In addition, the representative owes a fiduciary duty to preserve any funds recovered on behalf of the estate in an escrow account until the probate court approves the manner in which those funds are to be distributed amongst the various beneficiaries. A qualified wrongful death attorney will assist the estate’s representative in carrying out his or her fiduciary duties. Like the estate’s representative, the wrongful death attorney owes a fiduciary duty to all beneficiaries to protect their interests.
If you have questions about a wrongful death claim, you should contact an experienced wrongful death lawyer in Cleveland, OH early on in the process, so that you can be properly advised about how to establish an estate and to preserve the beneficiaries’ legal rights before expiration of any statute of limitations or statute of repose.
Thanks to Mishkind & Kulwicki for their insight into personal injury claims and car accidents involving a wrongful death.