Wrongful Death Personal Representative
In any wrongful death action, a personal representative or administrator or executor must be appointed. The executor is a person designated by the Will. An administrator is a person who is appointed by the Court in the absence of a Will. Both the executor and administrator are referred to as the personal representative. In other words, without the proper appointment of such a person a wrongful death or survival action is a nullity.
The appointment of a personal representative is a requirement. Harmon v. Sadjadi, 273 Va. 184, 193 (2007) The mere appointment of a personal representative from another state is not sufficient.
The case is brought in the name of that personal representative. That person acts as the representative of the people to benefit from the suit. Also the personal representative may be a beneficiary. Any proceeds of the case will be paid to the beneficiaries. In contrast if there is a recovery for medical bills then that money could come into the estate to be disbursed per the will or if no will then per state law.
The fact that the personal representative is an estranged spouse of the decedent is not a bar to bringing such a claim. The estranged spouse may well be living separate and apart from the decedent at the time of death but legally is the spouse. However without proof of desertion or abandonment that surviving spouse has a basis for seeking recovery under the wrongful death act.
If a survival claim is also to be pursued the letter or order of appointment must allow such.
Wrongful Death Personal Representative-Potential Statutes
The potential statutes under which to qualify for wrongful death and/or survival are Virginia Code § 64.2-454, 500, 502, 519 or 8.01-50. However if contemplating a claim under both wrongful death and survival only, then the first of these Code sections should be the basis for qualification of the personal representative.
Once the probate clerk makes the appointment of an administrator, then arguably that order after 21 days becomes final and therefore cannot be attacked. Andrews v. Avory, 55 Va. 229 (1858) In spite of that, pursuant to Virginia Code § 64.2-454, the qualification can be made wherever you wish. If you then file suit in the wrong venue, then the objection to that will be based upon venue, not on jurisdiction.
Virginia Code § 34-28.1 does exempt personal injury and wrongful death awards from creditor process. This however does not exempt the estate from claims by a lost heir. There are also exceptions for certain types of liens.
Small Estates
Frequently heirs who wish to pursue a wrongful death claim will qualify as the personal representative (PR) of a small estate. That is a problem. A small estate is limited. Although the proceeds of a wrongful death claim do not come into the estate there could be some damages (medical expenses) that do. Also, survival damages do come into the estate. If your client has opened a small estate the best course of action is to petition the court for an amendment to the letter of appointment. The court order must authorize the filing of wrongful death and/or survival actions, recognize that a wrongful death action may be filed along with a survival action and expressly authorize such with no dollar limit on the size of the estate.Wrongful Death Statute of Limitations
The statute of limitations in a wrongful death action is two years from the date of death in Virginia. It is possible that could be extended by one year. However if the death occurred in another state, then it may be that the statute for that wrongful death act controls. The statute of limitations in some states is literally a part of the claim. Therefore the state law where the death occurred is going to be controlling.
There are several other blogs on this site dealing with different aspects of wrongful death:- damages
- wrongful death claims should include survival damages
- valuing wrongful death
- distribution
- wrongful death values
- wrongful death limitations
Call or contact us for a free consult. So for more information on wrongful death see the other pages on this site dealing with all aspects of wrongful death. Also see the pages on Wikipedia.
