What is a Wrongful Death Estate

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who wanted to sue over the death of his wife who died in a car crash when another driver ran a red light.

When I mentioned to the caller that a wrongful death estate would need to be opened, he was shocked. The caller responded that he and his wife had living trusts so he didn’t think an estate needed to be opened.

The caller’s confusion is not surprising.

There are essentially two types of estates, one is the type of estate where a person dies, and a court needs to determine what happens with their property. Most people have heard the term probate. Probate usually involves a court examining a will, or deciding who gets property if there is no will and issuing orders regarding property disposition.

The type of estate that needs to be filed to pursue a legal claim for death caused by negligence is referred to as a wrongful death estate. This is a much different type of estate.

When a person dies, they no longer can hire an attorney and file papers in court to pursue the party whose negligence led to their death.

An entity must be created under the law to file lawsuits, hire attorneys, etc. This entity is called a “wrongful death estate.”

In the typical case where the decedent is survived by a spouse, the attorney that the surviving spouse hires will help them open this wrongful death estate and ask the court to name the surviving spouse as the executor of the wrongful death estate.

Once named as executor the surviving spouse and his or her attorney may then file a complaint naming the negligent party as a defendant.

If a settlement is reached, then the court must approve any settlement which the estate may recommend before a settlement can be completed.

The estate doesn’t have free reign to act without the permission of the court in terms of settling. But for other purposes, the estate can act without any court intervention.

Like a wrongful death estate is a guardianship. Let’s suppose the caller’s wife, instead of having been killed in the crash, was placed in a coma and needed round-the-clock care. The surviving spouse could be appointed as a guardian with the legal authority to file a lawsuit, hire an attorney, and take other steps to protect the rights of the injured spouse.

So, while the caller was right to be confused in thinking that he and his deceased wife had done estate planning and could bypass the probate estate laws. In order to pursue a wrongful death claim on behalf of his deceased wife, an estate dealing with just the wrongful death issues would have to be opened in court to enable a complaint to be filed.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”