Wrongful Death Lawsuits: Who can bring a lawsuit on behalf of a deceased person?

By Peter Klenk, Esq.

Our firm frequently represents clients who wish to open the estate of a deceased person in order to commence a wrongful death lawsuit. When a person dies due to the alleged recklessness, negligence or deliberate act of another, the deceased person’s estate and the persons who depended upon the deceased person may be able to bring a lawsuit to seek monetary damages for the loss. The laws of the state where the death occurred and the laws of the state where the deceased person was a resident should be examined to determine who is allowed to commence a lawsuit and where to commence the lawsuit. Some states allow a surviving spouse, surviving civil union partner, or the deceased’s children to open a lawsuit on their own behalf. Some states even allow extended families to bring an action, such as grandparents and siblings. In most cases, the decedent’s estate must be opened in order to collect the funds received on behalf of the decedent from such a lawsuit.

If the deceased person had a will, the named executor will be required to probate the will and shall be appointed as the personal representative of the decedent’s estate. In Pennsylvania, such as in Philadelphia and Montgomery County, this is handled at the Register of Wills Office. In New Jersey, such as in Camden or Atlantic County, and also in Florida and New York, this is done at the Surrogate’s Office. This executor or administrator takes the place of the deceased in the wrongful death action and retains a personal injury attorney to commence the lawsuit against the person, or the entity that is believed to have recklessly, negligently, or deliberately caused the deceased’s death.

Typically, a personal injury attorney does not focus on the area of wills, trusts, and estates; therefore, a probate attorney is often retained to assist the executor or administrator with the following tasks: opening the estate, notifying the heirs of the estate administration and lawsuit, protecting the executor or administrator from personal liability, filing necessary tax returns, administering the estate, and making distribution. Our firm also assists the executor or administrator in obtaining the necessary releases from each beneficiary before the executor or administrator distributes any money. Such a release ensures that the executor or administrator is released by all of the beneficiaries from any potential lawsuit in the future over any action he or she took in the personal injury lawsuit or in administering the estate.

In most states, if the deceased person had no will, a statute determines who has the right to open the estate (usually the surviving spouse or children). He or she would typically retain the assistance of a trusts and estates lawyer to assist him or her in opening the estate. A person injury lawyer would also be retained to pursue the wrongful death lawsuit against the person or entity that allegedly recklessly, negligently, or deliberately caused the deceased’s death.

Throughout our website, klenklaw.com, you may find more information about opening an estate, administrating an estate, and estate litigation including will contests. Our firm focuses exclusively in the area of estate planning and probate, and the litigation surrounding estate planning and probate, so if you need assistance in a probate matter please call our probate attorneys for a free consultation.