In every legal case, one of the threshold issues that must be determined is, “Who has the right to bring a case?” In Florida, when someone dies as the result of the negligent act or omission of another person or entity, the Florida Legislature has decided that only the Personal Representative of the Estate of the deceased person can bring a claim under the Florida Wrongful Death Act.
WHAT IS AN ESTATE, AND WHY IS ONE NECESSARY?
When someone dies in Florida, an Estate is essentially a temporary legal structure that is created in order to administer the deceased person’s affairs through the Probate Court. An Estate might “contain" the deceased person’s bank accounts, personal property, real estate, etc. The Estate might also pay some of the deceased person’s bills, pay the deceased person’s taxes, etc. Many people try to avoid Probate Court at the time of their deaths — and thus the opening of an Estate — by creating Trusts while they are living, where the Trusts will contain directions for how all of this business will be taken care of.
When someone dies as the result of an accident in Florida, Florida law REQUIRES that an Estate by opened on behalf of the deceased person, and that a Personal Representative be appointed to represent the Estate. Under Florida law, only the Personal Representative of the Estate of the deceased can bring a claim for damages under the Florida Wrongful Death Act.
WHO CAN BE PERSONAL REPRESENTATIVE?
Under normal Probate Rules, a Personal Representative can be a person, but can also be a bank, Trust company, or other similar institution. In Florida Wrongful Death cases, the Personal Representative is usually a member of the deceased person’s family (spouse, parent, or adult child.) In some situations, the Personal Representative will already be identified in the deceased person’s Will or person papers. When a Personal Representative has not been previously identified by the deceased, it will often be necessary for a family member to step forward.
The appointment of a Personal Representative is a serious matter. The Personal Representative must take an oath and swear to perform his or her duties responsibly and for the benefit of the deceased’s Estate and Survivors. The appointment of a Personal Representative must be approved by a Circuit Court Judge assigned to Probate cases. Judges will typically not approve Personal Representatives who have criminal histories, who have a history of mental illness or mental incompetence, or who otherwise seem unfit to handle such an important job.
WHAT DOES THE PERSONAL REPRESENTATIVE DO?
In a Florida Wrongful Death case, the Personal Representative is charged with bringing any and all claims available under the Wrongful Death Act that will benefit the Estate of the deceased, and the Survivors of the deceased. The process for the Personal Representative usually starts with the hiring of a lawyer to assist with bringing the claim.
The Personal Representative will then work with the lawyer to help the lawyer collect as much money as possible for both the Estate and the Survivors. Claims for the Estate of the deceased are usually limited to collecting money for medical and funeral expenses, and well as the deceased’s projected Net Accumulations. Think of Net Accumulations as the amount of money the deceased would have saved (not made), based upon his earnings and savings history, had he not prematurely died.
Personal Representatives are also charged with collecting money for Survivors of the deceased. The Florida Wrongful death can be confusing in terms of identifying who exactly is a “Survivor” under the facts and circumstances of each case. However, Survivors’ claims usually involve money for loss of financial support that the deceased was providing to the Survivor before her death, and loss of (or replacement of) personal services that the deceased was providing to the Survivor before her death. In addition, some Survivors are also entitled to emotional pain and suffering for the loss of their spouse, parent, or child.
At the end of a Wrongful Death claim, the Personal Representative has the responsibility of accepting or rejecting a settlement offer, or being the “face” of the Estate if the case goes to trial. If the case can be resolved, it is the Personal Representative who will be called upon to sign all of the important legal papers to bring the case to a close.
As you can see, Personal Representatives carry a lot of responsibility. However, if the Personal Representative hires the right lawyers to help him or her, the process is very manageable. If you have any questions regarding a potential Florida Wrongful Death case, or how the Wrongful Death statute works, call us.