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Personal Representatives In A Wrongful Death Case In Florida

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Summary:

  • Callers called into the station to ask next steps as his mother was killed in a head-on car crash while on the job.
  • Caller is worried about the husband taking the money from a wrongful death suit as they have no will set in place
  • A personal representative is someone who is appointed by the court to bring the claim on behalf of the estate & behalf of all survivors
  • Wrongful death statute also names specifically who survivors are
    • In the state of Florida, spouses are a preferred personal representative regardless of having a will or not
    • In the state of Florida, in order to file a wrongful death suit, it has to be brought up by the personal representative of the state.

Transcription:

Christopher Young: I’m joined by my law partner, Les McFatter. We have an email question. “My mom was killed in a wreck while on the job. It was the other driver’s fault for crossing the centerline causing a head-on crash. Her husband says that to bring a wrongful death lawsuit, my sister and I have to name an administrator as there is no will. Is this true? We don’t really trust him and are afraid he’ll keep any settlement for himself. Can we file our own wrongful death lawsuit?

Les McFatter: It’s always devastating when somebody loses a loved one as a result of an accident especially because it was so unexpected. In order to file a lawsuit, there actually is a process. In Florida, we call it a personal representative. There’s actually a wrongful death statute, it’s a set of laws that are codified in statute. In order to bring a wrongful death claim, it has to be brought by the personal representative of the estate. The personal representative is somebody that is appointed by the court to bring the claim on behalf of the estate and also on behalf of all survivors. The wrongful death statute also names specifically who survivors are, and who can recover. If there is no spouse, it could be children. If there’s no children, it can be parents and it just depends on a variety of circumstances. In Florida, spouses are more of a preferred personal representative, but a personal representative can be anybody. It can be a family member and anybody over the age of 18 as long as they don’t have a felony.

If there’s a situation where there might be some trust issues, the best thing to do is to maybe try to come to some sort of an agreement. You can have a professional personal representative hired. Sometimes we have lawyers here locally if there’s some issues with a family and we need somebody that’s more independent and neutral. That is the process, you have to have a personal representative named regardless of whether there’s a will or not.

Christopher Young: A couple things that jump out, first off they didn’t have a will. That’s the importance of having a will because you explain to the court exactly what you want to happen in your case. You can also say who the administrator is of your estate. It’s very important if you don’t have a will, find an attorney or law office that can draft you a will. Don’t try to do it yourself because a lot of times people try to and they fill out the form inaccurately.

Les McFatter: If you die without a will, it’s considered you have died intestate. If you die intestate, that means you don’t have any say over how your assets get distributed, those assets are distributed based on what the statute says when you die without a will. If you’re married everything will typically go to the spouse. If you aren’t married and you die, then everything goes to the kids and is divided equally.

And so what, the personal representative would do in that situation is they’re required to take inventory of everything. The Person owns basically Kabul everything together (bank accounts, Investments real estate). They want to monetize everything and then they distribute that money. The proceeds from the sales of those things based on the intestate succession statute, or based on whatever the will says,

So, it is best to have a will, especially if you want to have some control over who gets what. Maybe you’ve got somebody that has a special need, maybe you have somebody that you want to help out in certain ways. Maybe you’ve got a situation where you’ve got younger children and you don’t want them to have, even though they may be 18 or 19, you may not want that 18 or 19 year old to have all that money at one time. So, a will is always going to be the best thing because it allows you to plan.