HOW TO OPEN A PROBATE ESTATE TO FILE A WRONGFUL DEATH CLAIM
Last updated on: April 25, 2022
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If your family member has died from the negligence or intentional action of another person, you may be able to bring a wrongful death claim to get compensation for their death. To bring a wrongful action, however, a probate estate must be opened.
Our wrongful death attorneys may help you understand the process of filing a wrongful death claim. Call (800) 863-5312
to speak with a Zinda Law Group attorney for a free consultation
. Our knowledgeable lawyers may help you and your family through this difficult time and take on the burden of the legal process so you can focus on your wellbeing.
WHAT IS A PROBATE ESTATE?
Those who are handling the legal affairs of a deceased loved one for the first time may be wondering, “What is a probate estate?” Probate is the act of administering the assets owned by the decedent at the time of their death. The decedent’s assets are referred to as the “estate.” This may include the decedent’s own property, such as cash, insurance policies, and retirement plans.
The probate process differs depending on the size of the estate and the complexities of the laws of each state. This process could take anywhere between a few weeks, months, or even up to several years. The cost of the probate process also varies depending on the complexity and size of the estate. For example, you may have to pay for appraisals, court filing fees, accounting fees, executor fees, or other administrative fees.
If the decedent passes away with a will, the court must first validate the will, and then the court will assign a personal representative to handle the decedent’s assets according to the will. If there is no will, the court will appoint a personal representative to collect and distribute the assets according to the default rules of their state.
Although the probate process may seem daunting, opening the probate estate of your lost loved one is the first step in seeking compensation for their wrongful death. Zinda Law Group attorneys are here to help you and your family.
WHY DO YOU NEED TO OPEN A PROBATE ESTATE FOR A WRONGFUL DEATH CLAIM?
If you believe your loved one died due to the negligence or intentional act of another, you must open a probate estate to file a wrongful death claim.
Because the deceased cannot file a lawsuit for themselves, the estate must do it on their behalf. Opening a probate estate will allow the decedent’s assets to be distributed to his or her heirs, or beneficiaries. On the other hand, a probate estate also allows a duly appointed executor to pay the decedent’s creditors. In certain situations, a probate estate may also be necessary to deal with certain tax matters.
Probate and wrongful death laws vary from state to state. The process may also be different depending on whether or not the decedent had a will before his or her death. Hiring an experienced probate lawyer can help explain the laws and legal process in your state.
HOW TO OPEN A PROBATE ESTATE
If your loved one has died and you want to bring a wrongful death lawsuit on their behalf, an experienced probate attorney may help guide you through the legal steps. Below are a few general steps you will need to follow to open a probate estate:
1. File a Petition
The first step you need to take to open a probate estate is to file a petition. To do this, you must obtain a form from your local court clerk’s office. Once you have obtained this form, you will need to fill it out. There are typically guidelines included with the form to assist you in completing the petition. After you have completed the form, you may need to verify it with a notary public. Lastly, you will file the petition with the court clerk’s office.
2. Give Notice to Creditors
After you have opened a probate estate, the personal representative must give notice to the decedent’s creditors. The creditors are any persons or entities to which the decedent owes a debt. This notice must be given to all known creditors, as well as those who are unknown.
Generally, when a probate estate is opened, you are required to publish a notice in the local newspaper. This will typically satisfy your duty to any unknown creditors. It is important to speak to a probate lawyer for the specific probate laws in your state.
You must send notice to all known creditors directly. Personal representatives typically have a duty to reasonably ascertain any creditors a decedent may have.
3. Take Inventory
You must locate and document a complete list of the decedent’s assets
. This may include bank statements, car titles, and property deeds. You will need to make a complete list of everything the decedent owned. You will also need to know the value of each asset.
Along with the assets, it is important to make a list of all of the decedent’s liabilities. This may include mortgages, lines of credit, and credit card bills. As with the assets, keep a note of how much the liabilities are, and whether they are ongoing.
4. Pay Debts and Taxes
After you have taken an inventory of the decedent’s assets and debts, the personal representative must deal with the debts
. Any taxes, loans, credit card bills, or utility bills should be taken out of the estate and paid in full. Some debts, such as a mortgage, could be ongoing. Therefore, the beneficiaries of the estate would need to decide whether or not they would prefer to keep the asset or sell it.
5. Distribute the Estate
After all of the decedent’s creditors and debts have been paid, the personal representative, or executor of the estate, may begin to distribute the remaining estate to the decedent’s beneficiaries. Typically, the personal representative will make these distributions according to the decedent’s will, or if there is no will, then according to the intestacy laws of the state.
FILING A WRONGFUL DEATH CLAIM
When a person dies due to the negligence or intentional act of another, the deceased’s loved ones may be able to bring a wrongful death claim. This claim is typically brought to compensate the surviving family for their pain and suffering, as well as any financial loss suffered as a result of the death of their family member.
Wrongful death laws vary from state to state, so it is important to hire a wrongful death attorney to help explain the legal process. Zinda Law Group attorneys have the experience necessary to guide your family through this difficult time and help you seek the compensation you deserve.
There are certain circumstances that are needed before you can file your wrongful death lawsuit. These necessities are outlined below:
1. Death of a Human
In order for there to be a wrongful death claim, a human being must have died.
2. Cause of Death Due is to Another’s Negligence or Intent to Harm
The person who has died must have died due to another’s negligence or intent to harm. There are many ways this can occur. For example, a doctor may have committed medical malpractice resulting in the patient’s death, or an individual attempting to rob the deceased may have killed them in the process.
3. Monetary Suffering of the Deceased’s Surviving Family
To file a wrongful death lawsuit
, there must have been monetary suffering and injustice of the surviving family members. The family’s suffering and injustice must have been a direct result of the individual’s death. An example of monetary suffering may include loss of income. The earning capacity and life expectancy
of the decedent may factor into the amount of economic damages you may seek.
Read More: How to Calculate the Value of a Wrongful Death Claim
4. An Established Personal Representative of the Deceased’s Estate
Each state has different laws governing who can bring a wrongful death claim. Hiring a wrongful death attorney may help you determine if you are the right person to bring the claim. It is common, however, for the case to be brought by an established personal representative of the deceased’s estate.
OUR WRONGFUL DEATH ATTORNEYS MAY BE ABLE TO HELP
If you believe you may have a wrongful death case, you should contact an experienced wrongful death lawyer. Zinda Law Group attorneys may explain the legal process to initiate a wrongful death claim.
The loss of a loved one is extremely difficult for family members, especially when it was caused by the negligent or intentional actions of another. Allow our experienced wrongful death lawyers to take on the burden of the complicated legal process so you and your family can spend time grieving. You should not have to worry about affording a lawyer during such an emotionally challenging time. Our clients don’t pay anything unless we win their case
Call our experienced wrongful death attorneys
at Zinda Law Group at (800) 863-5312
as soon as possible to schedule your free consultation
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