The Role a Personal Representative Plays in a Wrongful Death Lawsuit

wrongful death lawsuitA wrongful death is one that is caused by the negligence or unlawful act of another person, or persons, or by a business or organization. The wrongful conduct may be either intentional or unintentional.

However, this type of personal injury claim may not be filed by just any person who happens to be in the family of the deceased or was a close friend. A wrongful death lawsuit must be filed by the “personal representative” of the estate of the deceased “for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of the decedent.”(Ohio Revised Code R.C. 2125.02(A)(1)).

In Ohio, the personal representative is either the executor or administrator of the deceased’s estate. An “executor” is generally named in a will left by the deceased. An “administrator” is appointed by the court if an executor is not named. The executor or the administrator is the only person with the authority to bring a wrongful death claim and this person brings the action on behalf of the spouse, children, parents, or other next of kin.

Next of kin are not defined by statute in Ohio but may include siblings, grandparents, grandchildren of the decedent and others. Next of kin could include legally adopted children in Ohio, but not step-children. A parent who has abandoned a minor child who is the decedent shall not receive a benefit in a civil action for wrongful death according to R.C. 2125.02(A)(1).

Who Appoints the Executor or the Administrator?

Although the wrongful death case is filed in Common Pleas Court, it is the Probate Court that decides who will be the personal representative of the estate. In Ohio, a wrongful death lawsuit is usually filed in the court of the county where the death occurred or where one of the defendants resides.

It is not necessarily a “race to the Courthouse,” as all next of kin receive notice before a representative is named by the Court, but it doesn’t hurt to be there first. After receiving notice, next of kin may attend a hearing concerning appointment of the personal representative. Next of kin can either agree to the person asking for appointment by the Court, or they can object at the hearing and say why someone else should be the representative. If someone is named “executor” in a will, the wishes of the deceased are generally honored. The Court will weigh the issue heavily in deciding who it should appoint, especially if there are objections to a named representative.

If all next of kin are in agreement, they can “sign waivers” which means there is no need for a Court hearing to appoint the personal representative.

Requirements of a Personal Representative

To serve as a personal representative in a wrongful death lawsuit in Ohio, an individual should be:

• Able to be bonded (no felonies on their record, no recent bankruptcies, not currently imprisoned, of sound mind etc.)

• A resident of Ohio in most cases

• A single representative rather than a multiple or a company representative. The latter are not favorable situations for the Court and are often not practical.

Timing of Appointment

The Probate Court must appoint someone as personal representative before the wrongful death lawsuit can be filed in Common Pleas Court. If all interested parties sign waivers (they agree on the personal representative), the appointment process consists of merely filing papers and may take only a few weeks. If parties can’t agree, notice to all parties must be given and a hearing date must be assigned. A court decision on the personal representative could take many months.

Statute of Limitations

A wrongful death lawsuit must be filed in court within a certain period of time. This period is called the Statute of Limitations. In Ohio, the Statue of Limitations for wrongful death is usually two years from the date of death. The statute may begin to run on the date of death, but it could also begin to take effect upon discovery of the person’s cause of death, or upon discovery of the defendant’s negligent conduct.

It is not advisable to wait until close to the end of the Statute of Limitations period before filing a claim. The plaintiff (the person bringing the lawsuit) will need to take necessary actions to support and prove the wrongful death claim. This may include gathering witness statements while memories are fresh, performing an accident reconstruction, obtaining a private autopsy and hiring experts. The person filing a wrongful death claim may be battling an insurance company or companies that will be trying to prove the claim is invalid or that the plaintiff does not have enough evidence about how the death happened.

If you wait to file suit, it is also possible the defendant(s) cannot be found or witnesses are no longer available and the case could be dismissed.

Can the Personal Representative Benefit from the Estate?

The personal representative is often a trusted family member who the testator designated to execute his or her wishes after death. If the decedent did not have a will, it is sometimes quite obvious whom he or she would have chosen to be the personal representative.

In these cases, it is very likely the personal representative may also be a devisee of the will or a beneficiary—this means that the representative will profit monetarily from the distribution of the estate. This is not an unusual development.

The personal representative who brings the wrongful death case has a fiduciary obligation to the other interested parties in the action (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. The failure to fulfill this obligation may subject the personal representative to legal liability.

For this reason it may be a good idea for the personal representative to retain the services of an estate lawyer in cases where there are any challenges to his or her conduct as personal representative.

For What Types of Damages can the Personal Representative File a Claim?

A wrongful death action can be brought to recover damages on behalf of the estate. This category permits recovery of damages experienced by the deceased from the moment of the negligent act causing the death until the time the decedent actually dies. This could occur hours or even weeks after the negligent act. These damages could include healthcare expenses, claims for the deceased person’s mental anguish and physical pain and suffering as well as funeral and burial expenses. This would entail the cost of medical treatment the deceased received prior to death, for example, emergency surgery he may have had in an effort to save his life.

A wrongful death action can also be brought to recover damages for each surviving beneficiary after the deceased’s death. This category of damages covers those losses experienced by the next of kin. These damages are meant to compensate the family survivors for their financial losses. They are generally intended to replace the value of the money the deceased would have earned if he had not suffered an untimely death.

It includes the lost wages the deceased would have earned until his or her anticipated retirement. When an adult dies, a surviving spouse may recover damages for being deprived of the love and companionship of the decedent. Each surviving child may recover separate damages for loss of the parent-child relationship and being deprived of the guidance of that parent. It is usually easier for a minor child to make this claim rather than an adult child.

Hiring Professionals with Vast Experience

It may not be clear why you would need both an attorney and experts in a wrongful death lawsuit. It is likely your case may involve some complex areas. For example, it may require an accountant or an economist to project the future net lost accumulations to the estate of a person who died in the prime of their career. It may be necessary to calculate the present value of future lost earnings, future promotions and the deceased’s savings and consumption rate. Medical experts may be needed to fully describe what the deceased endured before his death. A psychiatrist, a psychologist, or a mental health expert may need to testify about emotional issues a surviving minor child is experiencing due to the wrongful death.

In any event, the person filing a wrongful death action will be in need of legal help. We have considerable experience with these kinds of cases. While no amount of money will ever replace the loved one you have lost, it has been our experience that clients gain a sense of closure after taking action in a wrongful death case. They are better able to move on and live life as their loved one would have wanted them to.

We invite you to contact our law firm for a free, no obligation consultation and case evaluation. Let us have a relaxed conversation with you about the details of your potential claim. With more than 40 years of experience behind us, our Ohio wrongful death attorneys can answer your questions and provide feedback and guidance.

We can speak with you over the telephone or in a face-to-face meeting. You may also want to order our FREE book, “A Wrongful Death in Ohio” as a beginning step toward learning about this area of the law. There are many claims for wrongful death which have not been discussed in this article and which may apply to your case.

Please contact us at any time of day and any day of the week by calling 1-888-459-0765, chatting with one of our 24-hour live chat representatives or sending us a website message.

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