Probate process after a wrongful death

June 23, 2019 in Uncategorized | MARTIN WREN, P.C. | LEAVE A COMMENT

Wrongful Death Lawyer

In the unfortunate case of wrongful death, many family members are left confused and overwhelmed. It is awful to lose a loved one. When that death was caused by another’s actions or inaction it can be downright agonizing. It is imperative that the surviving family members understand the legal process of pursuing a wrongful death case. It is equally important that family members know how to handle the loved one’s estate and what to expect of probate court. Both wrongful death cases and probate court can be complicated and will likely feel as though you are on an emotional roller coaster. The following may provide some insight on both issues.

Probate Court  

The probate process starts with validating the will. If there is no will, the court will appoint a personal representative, or executor, of the state. The court will give the executor the right to act on behalf of the estate. Will or no will, the probate judge will handle the distribution of the estate according to local laws in as fair a manner as possible.

What does it mean to be an executor of the estate?

The executor is responsible to inform any interested parties (i.e., family members and creditors) of the individual’s death. In addition, the executor of the estate may be able to file the wrongful death lawsuit in the event that no other family members are able to do so.

The executor will also have the responsibility of gathering and appraising any assets. He or she will then be responsible to pay off any debt as well as pay state and federal taxes.

How do beneficiaries differ in probate court versus wrongful death cases?

It is important to note here that state law and probate court identify beneficiaries in a very different manner with different methods then in a wrongful death lawsuit. If there is a will then the estate will be distributed according to the wishes of the deceased. If there is no will, the heirs who stand to inherit are typically spouses and blood relatives.    

Wrongful Death

Who should file the wrongful death charges?

The laws around many aspects of wrongful death litigation can vary by state. However, most states agree that immediate family members may file the charges. Immediate family members generally include parents, spouses and children. Some states include siblings and grandparents.

What types of damages can the family seek?

The fundamental purpose of wrongful death litigation is to recover monetary loss for the surviving family members who relied on the deceased for financial support. In addition, wrongful death cases may also include compensation for the emotional cost of the tragedy. In general, damages may include loss of income from the time of the incident up to a reasonable estimate of when the individual would have retired, medical expenses, funeral and burial expenses, and pain and suffering for the deceased and family members.   

How are the damages divided?

The answer to this question really depends on the way the lawsuit is written, amount of damages awarded, how the individual is going to pay the damages and what the state laws are. Generally speaking, the damages will be distributed to spouses, parents and children. The beneficiaries identified in the will are not necessarily the same to receive damages from the wrongful death claim.

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