Securing Authority to Sue in Wrongful Death Cases

When meeting with a potential client in any contingency case, it is important to verify that they have authority to sue for the alleged harm. Under Florida Statute section 768.20,wrongful death actions must be brought by the personal representative of the decedent’s estate. Typically, when a family has lost a loved one and is consulting with your firm regarding a wrongful death lawsuit, a personal representative has not yet been appointed. In that circumstance, it is prudent to ensure that you are contracting with the party that has preference under Florida Statute section 733.301, which provides the following guidance:

  • In cases where a decedent had a will:
    • First preference = Personal Representative nominated in will;
    • Second Preference = Person nominated by the majority of estate beneficiaries;
    • Third Preference = The best qualified beneficiary of the will.
  • In cases where the decedent did not have a will:
    • First preference is the decedent’s spouse;
    • Second Preference = Person nominated by the majority of heirs at law;
    • Third Preference = The best qualified heir of nearest degree.

Hence, “does the decedent have a will?” is an important inquiry when meeting with a family in the wake of a tragedy. Ultimately, the personal representative is the only person with authority to contract your services and file a wrongful death claim (although proceeds generally belong to the survivors, not the estate).  If the decedent has a will naming a personal representative, that nominee must sign your fee agreement. If the decedent has a will which does not name a personal representative, it is ideal to meet with the beneficiaries of the will and let them agree on who should serve. Our firm has experience facilitating that conversation, and can provide the necessary documents to set an agreement in stone on short notice. When such a meeting is not practicable, each beneficiary should be contacted and provided with the appropriate waivers to appoint the desired  personal representative.

For a married decedent who dies without a will (intestate), your fee agreement must be signed by the surviving spouse. For unmarried intestate decedents, a meeting should take place with the decedent’s heirs similar to the meeting described above for beneficiaries of testate estates. Our firm has experience facilitating that conversation, and can provide the necessary documents to set an agreement in stone on short notice. When such a meeting is not practicable, each heir should be contacted and provided with the appropriate waivers to appoint the desired personal representative.

If your prospective client is not the future personal representative, all is not lost. If they are a survivor under the Wrongful Death Act, you can still earn fees as described in our blog article here.

If you have questions about probate matters affecting your wrongful death claims (and potential claims), contact us by phone at 352-354-2654 or by email at cdavid@circuit8law.com. We work in every county in Florida.