What is Wrongful Death Probate?
Wrongful death refers to the death of a person that is caused by someone else. For example, the person dies:
- In an auto crash
- As the result of medical malpractice
- As the victim of a homicide
The wrongful death probate differs from the ordinary probate process in several ways:
- Money awarded in wrongful-death lawsuits are subject to a limited class of creditors (In the regular probate process creditors can have a claim on assets.)
- Wrongful death awards are not subject to estate taxes.
- The beneficiaries in a wrongful-death lawsuit may differ from the beneficiaries in an ordinary probate. The category of people who can inherit is much broader, even when there is a will.
- When it comes to allocating the money from a wrongful-death lawsuit, all the interested parties must agree. If they cannot, the court decides in a hearing where each person comes forward and states their allocation proposal.
- When there is both a wrongful-death lawsuit and other probate assets, the personal representative must be very careful with administration because some people may benefit only from the regular estate, others may benefit from the lawsuit, and others may benefit from both.
Who can file a wrongful death lawsuit?
When a wrongful death occurs, the personal representative of the victim’s estate can bring a lawsuit against the person or persons that caused the death and ask for monetary damages. Those monetary damages relate to the “economic value” of the person who died wrongfully. His or her potential lost income is the major factor in determining the amount of damages.
Only a court-appointed personal representative (executor) can carry out a wrongful death lawsuit:
- If the deceased left assets that must go through the probate process, the personal representative may also initiate a wrongful-death lawsuit.
- If the deceased had no assets that require a regular probate, a family member can ask the court to appoint him or her as the personal representative in order to file a wrongful death lawsuit.
Once the lawsuit is settled and a cash settlement is awarded, or after a victory at a trial, the personal representative must allocate the money to the beneficiaries. If the deceased left money and/or other assets, those assets can be distributed in accordance with the will or Oregon’s laws that govern those who die without a will, without waiting for the lawsuit to be settled. This is done through the ordinary probate process.
Nay & Friedenberg LLC attorneys assist personal representatives (executors) of estates who are responsible for the allocation of money awarded as the result of a wrongful-death lawsuit. We will work closely with the attorneys who prosecute the wrongful death action. Our attorneys will advise and assist the personal representative in the both distribution of the regular estate and the allocation of the proceeds of the lawsuit.