FAQs: Probate court and wrongful death

Estate Planning Lawyer

In the event of a fatal accident when a loved one perishes, things can feel chaotic and impossible. You likely have many questions and may be wondering how this happened. You may be worried about how you will survive this financially. Those around you are likely offering comfort, condolences, and legal advice. Legal advice regarding financial compensation. In cases when the individual dies due to another person’s action or inaction, there are legal steps that family members can take. Each state has laws and statutes that support surviving family members in pursuit of compensation. They are able to seek damages through a wrongful death claim. In the case of multiple fatalities including the responsible party, the family is still able to pursue compensation. The following information is intended to help anyone facing the probate court process while seeking a wrongful death claim. It is solely intended as an informational guide.

Probate Court

With wrongful death cases where the responsible person (defendant) has died, the claim will go through probate court. Essentially, the probate court settles most estates (all assets and debts of the deceased) by paying debts to creditors and then distributing the assets to beneficiaries who are identified in the will. In the case of no will, the estate is considered “intestate” and the assets are to be distributed according to intestacy laws of the state. The probate court will handle a wrongful death claim as it would a creditor. In the case of a car accident, the wrongful death claim (or a portion thereof) may come from the insurance policy of the defendant when possible. Very often, the wrongful death claim is more than what is covered by the insurance policy. If that is the case, the remainder of the compensation claim will go through the probate court.     

Civil Court

The wrongful death claim is a civil action and therefore will need to be filed through the civil court. This is a time-sensitive claim and it is imperative to file the claim prior to when the responsible party’s estate is settled. In order to be awarded wrongful death compensation, one will need to prove that the defendant was negligent through his or her action or inaction. This can be a complicated process and an estate planning lawyer in Melbourne, FL is highly recommended. Many wrongful death attorneys offer free consultation and will work on a “contingency fee” basis, meaning they will not receive money unless the claim is granted.

Family members and personal representatives can file the claim

In the event of an untimely death, there is no preparation for the decedent to choose someone to file a lawsuit. As a solution, state law has determined that an immediate family member or personal representative (legally referred to as an executor) is allowed to do so on the decedent’s behalf. Although some states vary on what the definition of “immediate” family member is, most agree that it can be a parent, child or spouse. The executor is someone who was identified by the deceased in the will. In the case of no will, the probate court will choose the executor.

Thanks to The Law Offices of Arcadier, Biggie & Wood for their insight into estate planning and wrongful death.