How Does the Probate Process Impact a Wrongful Death Lawsuit?

August 29, 2023

When a person loses their life due to the negligent or wrongful actions of another individual or entity, family members of the deceased may be able to recover compensation through a wrongful death lawsuit. This process entails opening up the estate to the probate process. To be clear, the probate process is not exclusive to wrongful death claims.

Nearly every death in West Virginia goes through the probate process. Here, our Martinsburg wrongful death lawyers want to discuss the nuances of the probate process on a wrongful death claim.

What is Probate?

In West Virginia, probate is the legal process that transfers an individual’s property after they die. This process also works to repay that individual’s debts and pay their taxes, as well as any expenses involved in the funeral. As the probate process goes forward, all of the deceased individual’s property goes into their estate. The estate is all of the deceased’s property after their death. Any debts are paid from the estate, and any gifts to others are made from the estate. Probate ends when the estate is closed.

West Virginia, there is a simplified probate process for small estates, and this is meant to be less expensive and quicker than the traditional probate process.

Handling Probate and Wrongful Death

It is crucial for families and estate representatives to understand that a wrongful death claim and the civil probate process are not the same thing. Probate will occur after almost every death, but not every death results in a wrongful death claim. Under state law, wrongful death claims may arise if a person loses their life due to the “wrongful act, neglect, or default” of another individual or entity.

The personal representative of the deceased’s estate is responsible for filing the wrongful death claim in civil court, which does bear some similarities to the probate process, in which the entire estate gets handled by the personal representative as well. However, even though the personal representative files a wrongful death claim, we will typically see a personal injury lawyer or wrongful death attorney handle the case moving forward.

Families should have a separate estate attorney handling the probate process on their behalf. Probate lawyers are excellent at handling probate matters, while a wrongful death lawyer will be better at handling the wrongful death action. In particular, we recommend working with an estate or probate lawyer who has experience handling estates in which there is an active wrongful death claim ongoing.

There are situations where individuals have no assets, and probate would otherwise not be needed, which would mean having an estate representative would not matter. However, in order to bring a wrongful death claim on behalf of the deceased and their estate, there will have to be a personal representative.

Typically, the estate will not close (probate will not end) until after the wrongful death claim is resolved one way or another. The wrongful death claim will take place in the civil court system and not probate court, but if the lawsuit is successful, proceeds will go to the estate. The personal representative of the estate will be responsible for ensuring that the wrongful death settlement or jury verdict funds go to the individuals they are supposed to go to. This includes the deceased’s debts, taxes, and heirs.


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