When you have suffered through the death of a loved one at the hands of another person’s or facility’s carelessness, it is possible to receive just compensation for your loss through something called a wrongful death lawsuit. You will be suing the defendant under a personal injury tort theory called negligence for the loss of the love, companionship and financial support of your family member.
In order to have standing to bring a personal injury lawsuit, a proceeding in Surrogate’s Court must first be initiated to name a legal representative of the estate. This person will be a fiduciary and either be called an Executor (in cases where the decedent left a will) or an Estate Administrator.
The Surrogate’s Court will approve any settlement and oversee the distribution of any money that is successfully recovered by the wrongful death suit. Their role is to ensure that the correct beneficiaries receive the lawsuit proceeds. The legal representative of the estate will apply to the Surrogate’s Court for permission to distribute the lawsuit proceeds to the appropriate family members through a court procedure known as a wrongful death compromise order.
The compromise proceeding is begun in the Surrogate’s Court with a Wrongful Death Petition that must lay out the facts surrounding the matter, who distributees of the estate are, the requested allocation between the pain and suffering and personal injury damages (which would flow directly through the estate to the distributees or beneficiaries of the will) and the wrongful death damages (for which typically only a spouse and children are eligible for due to their probable financial dependence on the decedent). The Petition must be accompanied by an attorney affirmation discussing the legal services the attorney provided, an accounting from the estate’s legal representative, and a proposed decree outlining the requested financial allocations. Any liens for Medicare or Medicaid benefits must also be addressed prior to the distribution of the proceeds. Even in not a beneficiary of either type of benefit, a release will be required before the Surrogate will approve the settlement.
After the Petition has been accepted by the Surrogate’s Court, a Citation will be issued and must be served to obtain proper jurisdiction over all the parties interested in the proceeding. The interested parties in a wrongful death compromise proceeding include the Decedent’s distributees (those that would naturally inherit from the deceased party if there was no will in place) as well as the Decedent’s parents and any beneficiaries under a will previously admitted to probate and any known creditors. This allows the court to make an informed determination about lawsuit proceeds allocations.
The wrongful death compromise proceeding is complex and often lengthy court procedure. An experienced estate attorney can walk you through the procedure and make sure the matter is handled as smoothly as possible.
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