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Why Probate is Needed to Pursue a Florida Wrongful Death Claim

| Jul 30, 2019 | Probate |

In Florida, when the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, certain of the deceased’s survivors and the deceased’s estate may be entitled to recover damages. Those damages, and who are entitled to them, are set forth in detail in Section 768.21, Fla. Stat.

However, only the Personal Representative (what some people also call an “Executor”) of the Estate has the authority to bring the wrongful death claim. To have authority to act as Personal Representative, a formal probate must first be filed. The Probate Court then enters an Order Appointing Personal Representative and issues Letters of Administration. Once this occurs, the Personal Representative has the power to carry out all acts authorized under the Probate Code and under the decedent’s Will. This includes pursuing a wrongful death claim.

In essence, the Personal Representative brings the claim on behalf of those entitled to recovery. Those entitled do not have authority themselves to file suit or to settle on their own–only the Personal Representative can take that step. In the case of filing a wrongful death lawsuit, the Personal Representative files a court paper known as a “Complaint” setting forth the basis for the case and the damages requested. In the Complaint, the Personal Representative identifies those survivors for whom the claim seeks damages.

If there’s a settlement, the Personal Representative is the person authorized to sign a release of claims as required by all insurance companies. In addition, if there’s a settlement and if there are multiple persons entitled to recover money, the Personal Representative is the one who allocates the recovery among the beneficiaries (usually coupled with seeking probate court approval).

If there’s no settlement and the case proceeds to trial, the jury allocates the damages among the various survivors and the estate. 

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