In a case of Wrongful Death, the estate is taken over by an appointed personal representative. The filing of the complaint on behalf of the decedent’s estate is included in their duties. It seems straightforward, but the process can be more difficult than that. A few key points are considered in such a case.
Who is Usually Chosen as Personal Representative?
If the decedent’s will names an executor, then the executor is responsible for estate administration and filing a complaint for a Wrongful Death action. If no will exists, then a statute will decide who is best to appoint as personal representative. Any heir may be appointed if they have received renunciations from another heir who has the same or more of a right to accept the role. If a surviving spouse does not act, then offspring have the right to act as executor.
Who Receives the Survival Claim?
If a will does exist, then the Survival Claim will be considered part of the estate and will be distributed as the will outlines. If a will was not left, the estate’s assets will be divided according to the the state’s intestacy statute. These statutes vary by state but the amount of each intestate portion generally depends on the surviving family. This includes groupings of:
- Surviving spouse and parent of deceased, discluding children
- Spouse and all children of the spouse and the deceased
- Spouse and children, some that are only children of the deceased
- Spouse and children of only the spouse
- Stepchildren but no other descendants
Amounts awarded to each category is based on varied entitlements in each state.
Money and assets that are allocated to Wrongful Death claim are not affected by estate taxes–a common concern for families. However, any funds assigned to the Survival Claim are subject to estate taxes. There is a tax rate of forty percent on an excess of $5,250,000. State estate taxes gradually raises starting at 4.8 percent and landing around sixteen percent on amounts above $10,040,000. Inheritance taxes vary by state.
Estate planning is difficult from the beginning and only gets more complicated when suing for Wrongful Death. Your family and the deceased deserve justice and should seek legal advice to better their chances. Hiring an attorney to consult on issues of probate, personal injury, and wrongful death will provide you with a much better chance of your desired outcome than if the family files on its own. Be sure to consult a knowledgeable lawyer, like a probate lawyer Roseville CA can count on, about your particular case.
Thanks to our friends and contributors from Yee Law Group for their insight into probate and wrongful death.