In order to bring a wrongful death case against a person or entity for the negligent death of another person, a person called a Personal Representative (PR) must first be appointed by the court on behalf of the deceased person’s estate.
The PR is the only person who can file and prosecute a wrongful death action. A separate document (called a petition) must be filed in court which asks the judge to specifically appoint the PR. Oftentimes, the PR may also be a wrongful death beneficiary, like a surviving spouse or adult child.
How is a Personal Representative Appointed?
If the court accepts the person designated as the PR, then an order is entered giving that person all of the rights and obligations that come with this position. If a potential wrongful death claim exists, then family members should promptly arrange to meet and/or hire an experienced wrongful death attorney so that the process to appoint a PR can begin immediately.
Since it can take weeks or months for a court to appoint the PR, the process may delay when a separate wrongful death lawsuit may be filed and prosecuted against the responsible wrongdoers.
You should know that the PR has certain duties to the estate and surviving beneficiaries, much like an executor or executrix in other states. The courts have stated that the PR is merely a statutory agent or trustee who acts in favor of the designated beneficiaries.
Personal Representative's Role in Wrongful Death Claims
Also, the PR does not recover compensation or damages in the wrongful death action, unless the PR is also a wrongful death beneficiary. In some cases, the PR may be permitted to recover a fee for the amount of time spent devoted to litigating the case, responding to discovery requests, etc.
Since the PR is the only person authorized to file and prosecute a wrongful death claim, one of the first things to do may be to get the PR appointed by the court so a lawsuit can be filed promptly. If someone other than the PR files the wrongful death lawsuit the court will dismiss the action if requested by the defendant.
Therefore, it is very important that the parents or other family representatives consult with an experienced attorney to properly file the petition and obtain the order appointing a PR before the wrongful death action is filed.