Determining the wrongful death case?
The civil court system views a wrongful death case as a type of personal injury with one big difference: The deceased can not file a lawsuit.
If you break your arm because someone hits you with their car, you can call an attorney and talk about your rights and options. If that car strikes and kills you, you can’t.
So who has the legal standing to contact an attorney and bring forth a wrongful death case lawsuit?
That’s something the probate court decides, and it only does so when someone attempts to claim to stand. Say the deceased person’s brother wanted to bring forth a wrongful death lawsuit. The brother’s lawyer would file in court that they wish to be the deceased’s “personal representative” and notify all heirs to the deceased, such as a spouse, other siblings, parents, etc. Those people would have a limited time to contact the probate court and say they would prefer to be the personal representative.
The probate court would hear the claims of the different people and appoint one person as the personal representative, and that personal representative would then “stand in the shoes of the deceased.” They are expected to act on the deceased’s behalf and act in good faith towards the deceased’s interests.
Suppose a person became the personal representative, filed a wrongful death claim and that claim won the judgment. The personal representative would not get to determine what happens to the money. Instead, the judgment would go into the deceased’s estate and if there was no will the government would use an existing flow chart to distribute the money, such as giving any children or spouse the money first.
