If you lost a loved one due to someone else’s negligence, you may be able to seek compensation. Filing a wrongful death lawsuit can require a variety of steps, including opening probate.
Getting the money you deserve in a wrongful death case can be complicated. An experienced wrongful death attorney can take you through the process, handle legal tasks, and arrange probate approval.
Opening an Estate Before Filing a Lawsuit
When it comes to wrongful death lawsuits, different states have different laws regarding who can file a wrongful death lawsuit. For example, in Louisiana and Mississippi, the decedent’s immediate family can file a claim.
In Alabama and Arkansas, the only person who can file a wrongful death lawsuit is the personal representative of the decedent’s estate. In Arkansas, the decedent can appoint a representative. If they don’t, the court will.
Alabama-Specific Probate Laws
In Alabama, only a court-appointed representative can file a wrongful death claim. This means that before proceeding with the claim, you would need to go to Alabama probate court to open an estate.
Family members have 40 days from the victim’s death to petition the court to be appointed the administrator of the estate.
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Wrongful Death Probate vs. Ordinary Probate
The wrongful death probate is different from the ordinary probate process in many ways, including:
- Money awarded in the wrongful death lawsuit can only be distributed to a limited number of people. Not all creditors have a claim on the assets.
- Money awarded in a wrongful death lawsuit isn’t subject to estate taxes.
- Beneficiaries in wrongful death lawsuits can be different from beneficiaries in ordinary probate. The number of people who can receive money in a wrongful death lawsuit is usually smaller than the number of those who benefit through ordinary probate.
- Fund allocation after a wrongful death lawsuit is only possible if all parties agree. If there is no agreement, the court sets up hearings for each plaintiff and makes a decision based on their proposals.
Whenever you face both wrongful death probate and ordinary probate, the distribution of funds can be highly complex. Some people can be beneficiaries in both while others only receive money through one.
Survival Action and Probate Approval
A survival action is different from wrongful death action. While you still sue the negligent party for both, the damages you can recover are different.
- Wrongful death damages – compensation for what family members have suffered due to their loved one’s death.
- Survival action damages – compensation that a decedent would have recovered in case they survived.
To sue for survival action damages, you would need probate approval because all proceeds will be distributed through the decedent’s estate representative. Wrongful death and survival actions can have the same beneficiaries.
Probate Approval Process in a Wrongful Death Case
Probate approval for a wrongful death case involves several steps:
- Identifying the heir – to understand who can benefit from the damages recovered in a wrongful death case, the court will identify the heirs. The list of heirs depends on the state laws and the availability of immediate family.
- Appointing an administrator – the court will name an estate administrator or a representative who will file claims and manage the paperwork on behalf of the decedent.
- Litigation – once the estate administrator is appointed, your wrongful death claim will proceed as usual. In most cases, it will end with a settlement.
- Damage distribution – after the case ends with either a judgment or a settlement, the probate court has to determine whether the damage amount is fair to the decedent. After approving the figure, the court also needs to approve the distribution of the funds to each heir.
Once each heir gets the compensation, the court requests proof that the funds were distributed according to the court order. After that, the court closes the probate estate.
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Does Your Case Require Probate Approval?
Whether your case requires probate approval depends on several factors:
- The state you live in
- The existence of immediate family members
- The appointment of a personal representative
- Whether you bring forward a survival action
If you live in Alabama, probate approval is a mandatory process. You would need to open an estate and ask the court to appoint a representative to file a wrongful death claim.
In other states, you would need the court to appoint a representative for filing a wrongful death claim if there aren’t any immediate family members and if the decedent didn’t appoint an estate representative before their death. You would also need probate approval for survival action.
Do You Need a Wrongful Death Lawyer or a Probate Lawyer?
When a loved one dies, it can be hard to make legal decisions. Many people choose to ask for professional legal representation.
If your family member died due to someone else’s negligence, you can file a wrongful death lawsuit to obtain compensation. For that, you may want to hire a wrongful death attorney. If probate approval is necessary, your wrongful death lawyer will work with a probate attorney to help you file a claim.
If you hire a probate lawyer on your own, they can collaborate with the wrongful death attorney. However, a probate lawyer can’t help you with recovering wrongful death damages.
Can You Go Through Probate Approval without an Attorney?
You aren’t obligated to hire an attorney to get probate approval before filing a wrongful death claim. However, dealing with these legal actions without legal representation could lead to mistakes. These mistakes, in turn, could keep you from recovering fair damages.
Contact an Experienced Wrongful Death Attorney Today
If your loved one died due to someone else’s negligence, you and your family could be entitled to compensation. In some cases, before proceeding with a wrongful death claim, you need probate approval.
To arrange probate approval in a wrongful death case, you need an experienced wrongful death attorney. Speak to one of us to find out whether your case needs probate approval and what your next steps are.
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