Considering bringing a wrongful death case, but wondering why you have to open an estate? The law requires that an estate is opened for every wrongful death case, even if the decedent has no assets.
Our wrongful death attorneys explain the need for opening an estate when bringing a wrongful death claim.
Free wrongful death case evaluation: (888) 375-9998
Why Do I Need an Estate if I am Power of Attorney?
When a person dies, the power of attorney dies with the person. This means your power of attorney, or healthcare surrogate form, is legally irrelevant if the patient has passed away. The proper legal representative of a deceased person is known as the Personal Representative, or Executor, of the estate.
Do I Need to Open an Estate in a Wrongful Death Case if I have a Will?
Yes, even with a Will, you will still need an appointment as the personal representative of the estate. A Will can be instructive in who is to be appointed as the P.R., but it does not replace the need to have a P.R. appointed.
You always need an appointed decision making person (executor or personal representative) of the estate in order to pursue a wrongful death lawsuit.
Can’t We Just Settle the Wrongful Death Case Out of Court and Avoid Probate and an Estate?
Even if the wrongful death claim settles out of court before a lawsuit is filed, you will still need to open an estate. Without the opening of the estate, you have no legal authority to release the tortfeasor (at fault party) from liability.
Every tortfeasor will require you to sign a release of liability in exchange for the settlement money. The duly appointed personal representative of the estate is the only appropriate signatory to the release of liability.
In other words, you cannot avoid probate by settling the case before a lawsuit is filed.
Why is a Formal Estate Needed in Wrongful Death Cases?
A dead person has no standing to bring a lawsuit. Similarly, the power of attorney of the dead person has no standing, since the power of attorney dies with this patient. So legally, you are in limbo on your wrongful death case. There is no one who has the legal authority to bring the claim.
By opening an estate, you are solving that problem. Once you receive the letters of administration and order appointing personal representative, you are now the legally ordained person to handle the affairs of the estate. This includes the bringing of any wrongful death lawsuit associated with the deceased person’s death.
Do I Still Need an Estate if my Family Member Has No Assets?
Normally, no you would not need to probate an estate. However, if you want to bring a wrongful death claim, you will need to open an estate, even if the person died penniless. We refer to this as an empty estate. Meaning the only asset in the estate is the pending wrongful death claim.
Empty estates are quite common in wrongful death litigation. In fact, our wrongful death attorneys routinely require empty estates in order to prosecute wrongful death cases.
How Do I Open an Estate in a Wrongful Death Lawsuit?
You will need to work with a probate attorney. At Senior Justice Law Firm, we do not open estates. However, we put our clients in touch with probate attorneys that will work on contingency fee (meaning they don’t require any out of pocket payment).
This allows you to open the estate with no out of pocket expenses or fees, and little effort.
What is the Process of Opening an Estate for a Wrongful Death Lawsuit?
Typically, you will sign up with a wrongful death firm, like ours. We then put you in touch with a qualified probate attorney. He or she will file a pleading in the probate court, asking the court to appoint you as the personal representative or executor of the estate. Assuming you are not a felon and there is no contest from your sibling, the court usually rubber stamps your appointment as PR. This allows us to proceed with handling the wrongful death claim.
If there is a contest on your appointment as personal rep, a Judge may have a quick hearing and invite you and the other family member contesting your appointment. Oftentimes they will not show up, and you can be appointed as the personal representative of the estate, and thereby control the wrongful death case.
Free Wrongful Death Lawsuit Investigation
If you are investigating a wrongful death claim, contact Senior Justice Law Firm today by live chatting with us or calling us now. The consultation is free and we only get paid if there is a recovery on your case.
Call us today to begin the investigation into your potential wrongful death claim.
If your case is viable, we can connect you with probate attorneys that will open your loved one’s empty estate and satisfy all probate requirements.
Call our skilled wrongful death lawyers today for a completely free consultation: (888) 375-9998.
