Can a Personal Representative File Wrongful Death?

TL;DR

Yes, in nearly all jurisdictions, the personal representative of the deceased person’s estate is the designated party legally authorized to file a wrongful death claim. This individual, also known as an executor or administrator, initiates the lawsuit on behalf of the estate and the surviving beneficiaries. While family members are the ones who ultimately receive compensation for their losses, the personal representative is the official plaintiff who manages the legal action from start to finish.

Key Highlights

A personal representative is appointed by a probate court to manage a deceased person’s estate.
If the deceased had a will, the person named as the executor typically serves as the personal representative.
If there is no will, the court appoints an administrator based on a legal order of priority (usually a spouse, child, or parent).
The personal representative is the only party with the legal standing to file the wrongful death lawsuit.
This representative acts as a fiduciary, meaning they must act in the best interests of the estate and its beneficiaries.
The financial compensation recovered in the lawsuit is distributed to the surviving family members, not the representative (unless they are also a beneficiary).

Introduction

Each year, tens of thousands of families across the United States are confronted with the sudden loss of a loved one due to preventable incidents. According to the Centers for Disease Control and Prevention (CDC), unintentional injuries are a leading cause of death, encompassing everything from motor vehicle collisions to medical errors. When a person’s death is caused by the wrongful act, negligence, or default of another party, the law provides a path for accountability. This legal remedy is known as a wrongful death claim, a civil action designed to compensate surviving family members for the profound losses they have endured.

The legal framework for these claims is established by state-specific wrongful death statutes. These laws are critical because, under old common law, a legal claim died with the person. Modern statutes reversed this, creating a new cause of action that allows survivors to seek justice. Central to this process is the decedent’s estate, the legal entity comprising all the property, assets, and liabilities left behind. The management of this estate, including the filing of any related lawsuits, is handled through a court-supervised process often referred to as probate.

Understanding this legal structure is essential to answering who can take action. The law requires a single, authorized voice to speak for the deceased and their heirs in court. This prevents a chaotic situation where multiple family members might file competing lawsuits for the same incident. The legal system achieves this by granting the authority to file a wrongful death claim exclusively to one individual: the personal representative of the deceased’s estate. The following sections will explain precisely who this person is, how they are chosen, and the specific duties they must perform to pursue a claim for the benefit of the surviving family.

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Understanding the Role of a Personal Representative in a Wrongful Death Case

When a person passes away, they can no longer manage their own affairs or pursue legal rights. The legal system creates a position to fill this void. This person is the personal representative, and they step into the shoes of the deceased to handle all legal and financial matters, including a wrongful death lawsuit.

What is a Personal Representative?

A personal representative is an individual or institution appointed by a court to administer the estate of a deceased person. This is a formal legal title with significant responsibilities. The specific name for this role can vary based on the circumstances of their appointment:

Executor: If the deceased person (the decedent) left a valid will, they likely named a person to manage their estate. This named person is called the executor. When the will is submitted to the probate court, the judge will formally approve the named executor to serve, provided they are eligible and willing.
Administrator: If the decedent died without a will (a situation known as dying “intestate”), the court must appoint someone to manage the estate. This person is called an administrator. State law provides a priority list of individuals eligible to be appointed as the administrator.

The priority list for an administrator typically follows this order:

Surviving spouse
Adult children
Parents of the deceased
Adult siblings
Other next of kin

A judge in the probate court makes the final decision, but they will almost always follow this statutory order of preference unless the person with priority is unwilling or unfit to serve.

How is a Personal Representative Appointed?

The appointment is not automatic. Even if someone is named as the executor in a will, they have no legal authority until a probate court judge formally appoints them. The process generally involves these steps:

Filing a Petition: An interested party, usually the person seeking the appointment, files a petition with the probate court in the county where the deceased lived.
Submitting Documents: The petition is filed along with the original will (if one exists) and an official death certificate.
Notifying Heirs: All potential heirs and beneficiaries must be legally notified of the probate proceedings. This gives them an opportunity to object to the appointment if they have valid reasons.
Court Hearing: The judge holds a hearing to review the petition. If everything is in order and there are no valid objections, the judge will sign an order appointing the personal representative.
Issuing Letters: The court then issues official documents, often called “Letters Testamentary” (for an executor) or “Letters of Administration” (for an administrator). These letters are the legal proof of the personal representative’s authority to act on behalf of the estate.

The Fiduciary Duty of a Personal Representative

Once appointed, the personal representative becomes a “fiduciary.” This is a legal term that signifies a relationship of utmost trust and responsibility. The representative has a legal obligation, known as a fiduciary duty, to act solely in the best interests of the estate and its beneficiaries. They cannot use their position for personal gain or make decisions that favor one beneficiary over another.

This duty includes several key components:

Duty of Loyalty: The representative must be loyal to the beneficiaries and avoid any conflicts of interest.
Duty of Care: They must manage the estate’s assets and legal matters with the same prudence and skill that a reasonable person would use to manage their own affairs.
Duty of Impartiality: They cannot play favorites among the beneficiaries. All decisions, including how to pursue a wrongful death claim and distribute any settlement, must be fair to everyone involved.

Breaching this fiduciary duty can have serious consequences. If a personal representative mismanages funds, acts negligently, or engages in self-dealing, the beneficiaries can petition the court to have them removed and may even sue them for any financial damages caused to the estate.

The Legal Authority to File: Why the Personal Representative?

The rule that only the personal representative can file a wrongful death lawsuit may seem confusing, especially to grieving family members who are the ones directly suffering the loss. However, this legal principle is rooted in the need for an orderly and efficient justice system.

The Legal Standing (Locus Standi) Requirement

In any lawsuit, the person or entity filing the claim (the plaintiff) must have “legal standing.” This means they must have a direct connection to the legal issue and have been personally harmed or have a legal right to represent someone who was. Since the deceased person can no longer file a lawsuit, the law must designate a legal substitute.

The personal representative is granted this legal standing. They are not filing the lawsuit based on their own personal grief or loss (unless they are also a beneficiary). Instead, they are filing it in their official capacity as the legal agent of the estate. This structure ensures that there is one official plaintiff representing the collective interests of all beneficiaries. It prevents a scenario where a defendant could face multiple, separate lawsuits from a spouse, three children, and two parents, all arising from the same death.

Distinguishing Between the Plaintiff and the Beneficiaries

This is one of the most important concepts to understand in a wrongful death case.

The Plaintiff: The personal representative is the named plaintiff in the lawsuit. Their name appears on all court documents as the party bringing the action. For example, a case caption might read: “Jane Doe, as Personal Representative of the Estate of John Doe, Plaintiff vs. Negligent Corporation, Defendant.”
The Beneficiaries: The beneficiaries are the surviving family members who are legally entitled to receive the monetary damages recovered from the lawsuit. These individuals are the “real parties in interest” because the compensation is intended to cover their losses. State law defines who qualifies as a beneficiary, which typically includes:
- The surviving spouse
- Minor children
- Adult children
- Surviving parents
- In some cases, other dependent relatives

So, while the personal representative drives the legal process, the ultimate goal is to secure a financial recovery for the beneficiaries. The representative acts as a trustee, holding the legal claim for the benefit of the family members.

State-Specific Variations

While the personal representative model is the standard in the vast majority of states, there can be minor procedural differences. For instance, some states may have slightly different terminology or rules about who can petition to be appointed. A few states might allow certain close relatives, like a surviving spouse, to file a claim directly without first being appointed as a personal representative. However, these are exceptions to the general rule.

For example, in a state like Florida, the personal representative files the action and must list all potential beneficiaries in the complaint. In Georgia, the primary right to sue for the wrongful death of a spouse belongs to the surviving spouse. If there is no spouse, the right passes to the children. This is a notable departure from the strict estate-centered model but still aims to create a clear line of authority. Regardless of these variations, the principle remains the same: the law designates a specific party to act to avoid legal confusion and ensure all eligible survivors are represented.

The Step-by-Step Process for a Personal Representative to File a Claim

Once appointed by the probate court, the personal representative can begin the process of pursuing the wrongful death claim. This is a complex undertaking that almost always requires the assistance of an experienced wrongful death attorney.

Step 1: Obtain Legal Appointment

As discussed, the first and most critical step is to be formally appointed by the probate court. A wrongful death attorney can guide the family through this process, preparing and filing the necessary petition and documents to secure the Letters Testamentary or Letters of Administration. Without these official court letters, any attempt to file a lawsuit will be dismissed for lack of standing.

Step 2: Investigate the Wrongful Death

The personal representative, working closely with their legal team, is responsible for conducting a thorough investigation into the circumstances of the death. This is essential for proving the key elements of a wrongful death claim:

Duty of Care: The defendant owed the deceased a duty to act with reasonable care.
Breach of Duty: The defendant breached this duty through a negligent or intentional act.
Causation: This breach was the direct and proximate cause of the death.
Damages: The death resulted in measurable damages to the surviving family members.

The investigation typically involves gathering evidence such as:

Police reports and accident reconstruction analysis
Medical records and autopsy reports
Witness statements and interviews
Expert opinions from engineers, doctors, or financial professionals
Employment records to establish lost income

Step 3: Identify All Potential Beneficiaries

A crucial duty of the personal representative is to identify every person who qualifies as a beneficiary under state law. This is important because any settlement or court award must be allocated among all eligible survivors. Failing to identify a beneficiary could lead to legal challenges later and could be considered a breach of the representative’s fiduciary duty. The attorney will help research family history and ensure all legal heirs are properly notified and included.

Step 4: Calculate the Damages

The personal representative and their attorney will work to calculate the full value of the claim. Wrongful death damages are intended to compensate the beneficiaries for their specific losses, which are categorized into two main types:

Economic Damages: These are tangible financial losses that can be calculated with relative certainty. They include:
- Loss of financial support and future earnings the deceased would have provided.
- Loss of benefits, such as health insurance or a pension.
- The value of services the deceased provided, like childcare or home maintenance.
- Medical expenses incurred between the injury and death.
- Funeral and burial expenses.
Non-Economic Damages: These are intangible losses related to the emotional and personal impact of the death. They are harder to quantify but are a significant part of the claim. They include:
- Loss of companionship, comfort, and society.
- Loss of consortium (the loss of marital benefits for a surviving spouse).
- Loss of guidance, instruction, and nurturing for surviving children.
- The mental anguish and sorrow of the beneficiaries.

Step 5: File the Lawsuit

After the investigation is complete and damages have been assessed, the personal representative, through their attorney, will file a formal complaint in the appropriate civil court. This document officially starts the lawsuit. It names the personal representative as the plaintiff, identifies the at-fault parties as defendants, outlines the facts of the case, and states the legal basis for the claim. The lawsuit must be filed before the state’s statute of limitations, a strict deadline for initiating legal action, expires.

Key Responsibilities of the Personal Representative Beyond Filing the Lawsuit

The role of the personal representative extends far beyond simply signing the initial court papers. They are actively involved throughout the entire legal process and are responsible for making critical decisions on behalf of the estate and its beneficiaries.

Managing the Estate’s Affairs

While the wrongful death claim is pending, the personal representative must also manage the other affairs of the decedent’s estate. This can include identifying and securing all assets, paying the deceased’s final debts and taxes, and managing property until it can be distributed to the heirs. These duties are separate from the lawsuit but are part of the overall responsibility of administering the estate.

Communicating with Beneficiaries

Effective communication is a cornerstone of the personal representative’s fiduciary duty. They must keep all beneficiaries reasonably informed about the status of the wrongful death case. This includes:

Providing updates on the investigation and litigation milestones.
Sharing and explaining any settlement offers received from the defendant’s insurance company.
Consulting with them on major strategic decisions, although the final say rests with the representative.

Transparent communication helps build trust and can prevent disputes among family members during an already difficult time.

Negotiating Settlements

The vast majority of wrongful death cases are resolved through a negotiated settlement rather than a full trial. The personal representative, with the advice and counsel of their attorney, is the person with the authority to engage in these negotiations. They will evaluate any settlement offers based on the strength of the case, the calculated damages, and the risks of going to trial. The representative must make the decision to accept or reject an offer based on what is in the best interest of all beneficiaries collectively.

Distributing the Proceeds

If the case is successful, whether through a settlement or a jury verdict, the personal representative is responsible for the final step: distributing the money. This is a formal process that often requires court approval. The steps include:

Receiving the Funds: The settlement or award money is paid to the estate or its attorney.
Paying Expenses: All legal fees, court costs, and case-related expenses are paid first.
Satisfying Liens: Any valid liens against the recovery, such as from a hospital or health insurer for medical bills, must be paid.
Allocating the Net Proceeds: The remaining funds are allocated among the beneficiaries according to state law or a distribution plan approved by the court. The representative then issues the payments to each beneficiary.

Potential Conflicts and Challenges for a Personal Representative

Serving as a personal representative in a wrongful death case is a demanding role, both legally and emotionally. It is not uncommon for challenges and conflicts to arise during the process.

Disagreements Among Beneficiaries

Family dynamics can become strained after a loss. Beneficiaries may have different opinions on how the case should be handled. For example, one adult child might want to accept a quick settlement to cover immediate financial needs, while another might want to hold out for a larger amount or push for a trial to achieve a public sense of justice. The personal representative must listen to all perspectives but ultimately make a decision that is fair and reasonable for the group as a whole, which can be a very difficult position to be in.

Conflicts of Interest

A personal representative is often a close family member and, therefore, also a beneficiary. This can create a potential conflict of interest. For instance, if the representative is the surviving spouse and the other beneficiaries are adult children from a previous marriage, there could be tension over how the settlement funds are divided. The representative must strictly adhere to their fiduciary duty of impartiality and follow the legal guidelines for distribution to avoid any claims of self-dealing.

The Emotional Toll

The personal representative is usually grieving the same loss as the other beneficiaries. Having to manage a complex, and often adversarial, legal process while coping with personal grief is a significant burden. They must make objective financial and legal decisions at a time when they are emotionally vulnerable. This is a primary reason why having a compassionate and experienced attorney is so important, as the lawyer can handle the legal burdens and provide objective advice.

Liability and Removal

A personal representative can be held legally responsible for their actions. If they breach their fiduciary duty through negligence, mismanagement of funds, or a failure to act, the beneficiaries can take legal action. They can petition the probate court to have the representative removed and replaced. In cases of financial misconduct, the representative could be ordered to repay any losses to the estate from their own personal funds.

Wrongful Death Claims vs. Survival Actions: A Critical Distinction

In the context of a fatal injury, another type of legal claim often arises alongside a wrongful death claim. This is called a “survival action,” and it is important to understand the difference. The personal representative is responsible for filing both types of claims when applicable.

What is a Wrongful Death Claim?

As has been detailed, a wrongful death claim is brought on behalf of the surviving family members to compensate them for their losses. The focus is on the harm the beneficiaries have suffered because of their loved one’s death. The damages are intended to cover things like lost financial support, the loss of companionship, and the survivors’ emotional pain. The money recovered from a wrongful death claim typically passes directly to the beneficiaries and is generally not considered an asset of the estate that is subject to the decedent’s creditors.

What is a Survival Action?

A survival action, by contrast, is a claim that belongs to the deceased person’s estate itself. It is based on the idea that the legal claim the deceased would have had if they had lived “survives” their death. The personal representative pursues this claim to recover damages that the deceased person personally suffered between the moment of their injury and their death.

Types of Damages in a Survival Action

The damages sought in a survival action are different from those in a wrongful death claim. They are meant to compensate the estate for the decedent’s own losses, which may include:

Conscious Pain and Suffering: Compensation for any physical pain, emotional distress, and fear the deceased experienced before they passed away. This can only be recovered if there is evidence the person was aware of their suffering.
Medical Expenses: The cost of all medical care the deceased received for their injuries before their death.
Lost Wages: Any income the deceased lost between the time of their injury and their death.

Who Files a Survival Action?

Like a wrongful death claim, a survival action is filed by the personal representative on behalf of the estate. However, the proceeds from a successful survival action are treated differently. The money recovered becomes an asset of the estate. This means it is first used to pay any of the decedent’s outstanding debts and creditors. Any remaining funds are then distributed to the heirs according to the decedent’s will or, if there is no will, the state’s intestacy laws.

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Conclusion

To directly answer the central question: a personal representative is not only able to file a wrongful death claim, but in most states, they are the only party legally empowered to do so. This legal structure ensures that the pursuit of justice for a lost loved one is handled in an organized and authoritative manner. The representative, appointed as either an executor through a will or an administrator by a court, acts as a fiduciary for the estate and all its beneficiaries. They are the official plaintiff who initiates the lawsuit, manages the litigation, and makes critical decisions with the guidance of legal counsel.

This system carefully separates the role of the plaintiff from the beneficiaries. While the representative manages the legal fight, the surviving family members are the ones for whom the fight is waged. The compensation secured is meant to address their profound losses, from the loss of financial support to the irreplaceable loss of companionship and guidance. Understanding this distinction, along with the equally important concept of a survival action, is fundamental to the process. The personal representative holds the key to unlocking the legal remedies available to a family that has suffered an unimaginable loss due to another’s negligence.

The path to holding a responsible party accountable is governed by complex state laws and strict deadlines, including the statute of limitations. The responsibilities placed on a personal representative are significant and can be difficult to manage, especially during a period of grief. If your family is in this situation, securing proficient legal advice is not just a recommendation; it is a necessity. An experienced wrongful death attorney can guide you through the probate court process, ensure the claim is filed correctly and on time, and bear the legal burden so your family can focus on healing. Please contact our firm for a no-cost consultation to discuss the specifics of your case and learn how we can help. Contact us for free evaluation today, and let us fight for the justice your family deserves.

Can a Personal Representative File a Wrongful Death Claim?