Washington State law requires that a Personal Representative be appointed on behalf of the deceased’s estate. In other states a personal representative is often referred to as the Executor.
Essentially, this person acts on behalf of the deceased person’s estate and is given authority by the court to file suit for the purpose of recovering damages in a wrongful death lawsuit. A wrongful death lawsuit cannot be prosecuted until a personal representative is appointed by the court. This means that a probate action must first be completed so that a personal representative is appointed.
A probate action is a special type of legal proceeding that addresses the management and finalization of the deceased person’s estate. Assets and liabilities are accounted for, and any remaining proceeds and assets are divided up among surviving relatives according to a will (if one exists) or based on the intestate statute if no will exists. Once this occurs, the wrongful death lawsuit may then begin.
A wrongful death claim can be filed on behalf of the survivors who are suffering damage from the death of their loved one. The representative is generally the executor of the victim’s estate.
These people are considered “real parties in interest” in legal terms, and often vary in different states. Again, keep in mind that all cases are unique are sometimes this may differ depending on the situation.
The people that would have the authority to file a wrongful death suit, would be:
- Immediate family members. Immediate family members like spouses and children and parents of unmarried children can recover damages under wrongful death.
- Life partners, financial dependents, and putative spouses. A domestic or life partner, anyone who was financially dependent on the decedent, and a "putative spouse" (a person who had a good faith belief that he or she was married to the victim) have a right of compensation. This is in some states.
- Distant family members. Some states allow more distant family members, such as brothers, sisters, and grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action (which is why all cases are unique and differ based on the situation).
- Someone who suffers financially. Some states allow all persons who suffer financially from the death to bring a wrongful death action for lost care or support, even if they are not related by blood or marriage to the victim.
- Parents of a deceased fetus. In Washington State, the death of a fetus can be the basis for a wrongful death suit. In several other states, parents cannot bring a wrongful death action to recover for financial and emotional losses resulting from the death of a fetus. This is all dependent on the state laws.
Who Can Be The Personal Representative?
Technically, anyone can be appointed the personal representative. However, the court will usually prefer someone who is reputable and trustworthy. Someone with a criminal background, especially one involving dishonesty or fraud, may be excluded by the court. Oftentimes, the personal representative is a surviving family member or a good friend of the deceased. Sometimes a professional, like another lawyer, can be appointed as the personal representative.
Although there can only be one wrongful death lawsuit, Washington law recognizes that more than one claim may be pursued in the same case. In one claim, an action is brought to recover damages on behalf of the estate (like funeral and healthcare expenses, the deceased’s lost future earnings, etc.). In the other claim, a lawsuit can be brought to recover damages for each surviving beneficiary designated by the wrongful death statute. A surviving spouse may recover separate damages for the destruction of the marital relationship. Each surviving child may recover separate damages for the loss of the parent-child relationship. The damages claimed by each beneficiary are usually distinct and separate from the damages claimed by the estate.
The Personal Representative who brings the wrongful death case will have a fiduciary (i.e., heightened or enhanced) obligation to the other interested parties in the action (like other beneficiaries). This means that the personal representative has a legal duty to protect the interests of the estate and all beneficiaries who may have a right to recover damages in the case. The failure to fulfill this duty may subject the personal representative to legal liability and/or damages.