In a wrongful death case, a personal representative must be found to fight for the interests of the deceased individual and his or her beneficiaries. In some cases, it can be difficult to determine who this personal representative will be. Usually the death that provokes a wrongful death claim is unexpected. It's therefore unlikely that the deceased individual will have created a will and named an executor. The personal representative of a deceased individual is named as one of the following if a wrongful death is to be filed against another party in pursuit of compensation:
- The executor of the deceased individual's will. A will simplifies things after a person dies. Wills usually name an executor who will manage the deceased individual's estate after his or her death. If a will exists and names an executor or personal representative, this individual will represent the deceased individual and the interests of the family in a wrongful death case. However, if there is no will or no executor name who is capable of taking on the responsibility, a representative must be found among the deceased's circle of family members and friends.
- The spouse of the deceased individual. The deceased's spouse will usually have the right to represent him or her in a wrongful death case if an executor was not clearly specified by the deceased individual before death. If the deceased individual was not married, or if his or her spouse is not willing or able to handle the responsibility, the responsibility will go to the next of kin.
- The deceased individual's next of kin. Most often, the next of kin will be one of the deceased individual's children if he or she had children. However, this can create conflict in families in which siblings do not get along. If the deceased had multiple children, a personal representative must be agreed upon by both or all of the children. Ideally, the deceased's family can come to a consensus on which child or beneficiary of the deceased is best able to function as the personal representative.
- A personal representative appointed by a judge. If no consensus can be reached in the family, a judge appointed to the case will generally be responsible for naming a personal representative.
In cases where a judge makes the decision, beneficiaries and other family members can present information before the judge regarding who they think should be the deceased's personal representative. Individuals can petition the court in this case to be considered as potential representatives for the deceased. If you wish to file a wrongful death case, find a reputable attorney that specializes in this type of case, such as Campbell, Dille, Barnett & Smith, P.L.L.C.