Who Can File a Wrongful Death Lawsuit?

When a death is caused by the negligence of another, a wrongful death claim or lawsuit may be pursued on behalf of the survivors/beneficiaries of the deceased individual.  Examples of incidents that could justify a wrongful death claim include:

  • Defective or dangerous product
  • Fatal assault, battery, or because of other crime
  • Fatal vehicle accident caused by a driver who exhibited careless, drunk, or reckless behavior.
  • Medical malpractice
  • Nursing home abuse or negligence
  • Slip and fall or other premises liability accident on private property
  • Work-related death

States are generally in agreement that under such circumstances, a representative for the deceased person’s estate must be appointed to pursue such a claim/lawsuit on behalf of the beneficiaries of the deceased individual.

The representative of the estate of the deceased person should be thought of as a trustee for the beneficiaries of the action.  It is the responsibility of such a personal representative to pursue such a claim on behalf of the beneficiaries.  The representative will probably work with counsel to collect information regarding the losses associated with the death in the form of the deceased person’s future wage loss, medical and hospital expenses associated with the injury that led to the death, funeral expenses, and other emotional and societal losses.

Practically speaking, the personal representative serves as the spokesperson for the beneficiaries of the deceased individual in a trial and negotiations of a wrongful death action.  A wrongful death claim cannot move forward without the appointment of a personal representative.  The procedure for appointing the representative of an estate varies from state to state.  If the deceased individual had a will that named an executor or executrix for the estate, that individual is usually the first choice to represent the estate in a wrongful death action.

In Virginia, anyone can qualify as the representative of the estate of a deceased individual 60 days after death.  An appearance before a clerk in the circuit court is necessary for the appointment, which is documented with paperwork prepared with the clerk and filed in the clerk’s office.  In North Carolina, a court will appoint a public administrator to serve as the representative of an estate in a wrongful death claim.

Any lawsuit filed as a result of death must be filed in the name of the representative of the estate.  If that is not done prior to the expiration of the statute of limitations for the death claim, the statute of limitations may expire, and the case will not be able to be preserved.

The role of a personal representative is important in the context of any wrongful death claim.  Following a death that may be the subject of a negligence case, steps should be taken promptly to designate a personal representative for the estate in order to properly investigate and pursue the claim.  Counsel should be consulted regarding the steps to be taken to properly designate the representative of the estate to ensure the case is properly set up and protected.

Let Our Firm Help

If you have lost a loved one in an accident caused by the negligence or recklessness of another party or parties, contact a Virginia wrongful death attorney to discuss what legal options you may have. At Shapiro, Washburn & Sharp, we realize that no amount of money will ever make up for the death of a loved one, but we also understand that these tragic deaths often leave families with overwhelming financial burdens. Call our office today to schedule a free and confidential consultation and find out what legal options your family may have to obtain financial justice for the death of your loved one.

Our law firm also offers a free wrongful death guide for families who have lost a loved one in an accident. The guide covers topics such as the statute of limitations for filing a wrongful death claim, what types of damages can be pursued, and who can be appointed as personal representative.