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What Does it Mean to Open a Probate to Proceed with a Wrongful Death Lawsuit

The loss of a loved one in a preventable accident is heartbreaking. It is a tragedy that no family should be forced to endure. A wrongful death lawsuit is a type of legal claim that allows a family to seek justice, accountability, and financial support to help them get through a difficult time. 

In New York, you may be required to open up the probate process before you and your family can proceed with a wrongful death claim. Here, our New York wrongful death lawyers explain the most important things that you should know about probate and wrongful death suits. 

New York Law: A ‘Personal Representative’ Must File the Wrongful Death Claim

Wrongful death lawsuits are governed at the state level. Each state has its own wrongful death statute. Although there are some important similarities between the states, there are also plenty of key differences. Unlike many other jurisdictions, New York only allows a ‘personal representative’ of the estate to file a wrongful death action. 

Under New York State law (New York Estate Powers and Trusts Law § 5-4.1), “the personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act.”

In effect, this means that the immediate family members of the victim—the spouse, parents, adult children, etc.—can not file a civil wrongful death lawsuit directly. Instead, the personal representative initiates legal action on behalf of the surviving family members. 

Wrongful Deaths Claims and Probate in New York. 

New York’s unique wrongful death laws combine some aspects of probate law and personal injury law. New York’s Estates, Powers, and Trusts laws govern wrongful death actions. As such, it is important that surviving family members have a basic understanding of the relevant statutes and probate process. 

The New York State Bar Association (NYSBA) explains that probate is a court-supervised process through which a deceased person’s estate is resolved. When someone passes away with a will, the validity of the document is confirmed in probate and their assets are distributed accordingly. When someone passes away without a will, their remaining property/assets are distributed based on New York’s intestacy laws.  

Probate is the Process By Which a Personal Representative is Confirmed

In New York, only a personal representative of the estate of the victim can bring a wrongful death lawsuit. That personal representative will be appointed (and confirmed by the court) during probate. In practical terms, this means that you have to open up the probate process so that a personal representative can be appointed before pursuing a legal claim on behalf of the surviving family members. If you have any specific questions about opening probate and filing a wrongful death claim, the experienced New York wrongful death lawyers at Powers & Santola, LLP are available to help.  

The Executor of the Will is Typically the Personal Representative 

A personal representative is the trusted party who is responsible for managing/handling the financial affairs of the deceased person. Among other things, this includes filing any wrongful death action. If an executor was named in the will, they typically serve as the personal representative. However, if no executor was named or the decedent lacked a will, then a New York court must appoint a personal representative. 

Often, the personal representative is a surviving spouse or another close family member. When no representative is named in a will, courts tend to appoint a capable and qualified next-of-kin as the personal representative to handle such duties. However, you can name any individual in your will to serve as your personal representative if you believe that they are best suited to carry out the responsibilities of administering your estate. 

Contact Our New York Wrongful Death Attorneys for Help

At Powers & Santola, LLP, our New York wrongful death lawyers are compassionate, trustworthy advocates for families. If you have any questions about opening the probate process before proceeding with a wrongful death suit, we are more than ready to help. To set up your free, no-commitment case evaluation, please call us or send us a message directly online.

With law offices in Albany, Rochester, and Syracuse, we represent families in civil wrongful death lawsuits throughout all of Upstate New York, including Saratoga County, Schenectady County. Rensselaer County, Ulster County, Columbia County, and Greene County. 

Call Today! 518-465-5995

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