Probate After a Wrongful Death

August 19, 2014Brooke MixonBlog0
Executor Must File Wrongful Death Claim on Behalf of Estate

Executors have many responsibilities after the death of a loved one. Filing a wrongful death lawsuit may be one of those duties if the deceased was killed due to actionable negligence.

When you think about the duties of an executor, what comes to mind? Most people know that executors/administrators of estates are responsible for taking an inventory of a deceased person’s property and distributing the property according to the decedent’s will or, if the decedent did not have a will, then by splitting the property amongst the decedent’s heirs in accordance with the Estates Code. Many people are also aware that the executor/representative may have to deal with creditors and possibly file estate tax returns. But did you know that an executor may also have to file (or sometimes defend) lawsuits on behalf of the estate?

If you consider lawsuits involving estates, you might think of the estate of an author or musician suing over copyright disputes such as in the recent lawsuit involving the estate of Sir Arthur Conan Doyle or the lawsuit between Robin Thicke and the estate of Marvin Gaye. Or you may think of the recent defamation lawsuit in which the estate of Chris Kyle was a defendant. In other words, it may seem like estates are only involved in lawsuits when the estate is that of a celebrity. But executors/representatives of non-celebrity estates sometimes must also file a lawsuit on behalf on the estate. Situations involving wrongful death often require an estate administrator to file suit.

Wrongful death lawsuits can be brought by close, surviving family members such as a spouse or children, but some also involve claims for damages incurred by the person who was killed. In cases like this, any money awarded at trial or in a settlement for those claims technically belongs to the estate. This means that probating the deceased person’s estate is necessary to file this type of lawsuit.

In Texas, probate can be filed up to four years after the death of the decedent, but wrongful death cases usually must be filed within just two years after the person’s death. This effectively shortens the time for filing probate to two years from the date of death, and to be safe, probate should be filed well in advance of the two year anniversary so that the personal injury lawsuit is not threatened by statute of limitations problems. Some law firms take on many types of cases and may be able to handle both the probate aspect and the wrongful death aspect of your case. Or, you can choose to work with one law firm for the personal injury case and another for the probate case.

If someone you care about died because of the negligence of another party, and you are an heir of the estate or even the executor of his or her will, you need to consult with both a probate attorney and a personal injury attorney as soon as possible.

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