Frequently Asked Questions
Below are some initial questions many clients have when they first contact Michael A. Schafer, Attorney at Law. The questions below may address many initial concerns you may have. If you don't find the answers here, you should contact us for answers to questions specific to your case. The consultation is free.
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How Do You Begin A Wrongful Death Case?
A wrongful death case can only be brought by the personal representative of the deceased person’s estate. Therefore, the first step is for Probate Court to appoint a personal representative. A petition must be filed to probate the Will. This is done in the probate office in the county of the residence. If the deceased had a Will at the time of death, an administrator would be appointed. If there was no Will, you file in intestate and an executor is appointed. Usually a surviving family member or close relative of the deceased acts as the personal representative of the estate.
What Is A Survival Action?
A survival action is a type of wrongful death case where the injured person dies days, weeks, months or years after the negligent action. The death does not occur at the same time as the event that caused the injury. The claim against the at-fault party continues on or “survives.” The estate is allowed to bring the action on behalf of the descendant to recover the damages. An example would be if a person is injured in a car wreck and then passes away some time later. The estate of the decedent is allowed to make a claim for the decedent’s pain and suffering, medical expenses, funeral expenses, lost wages and other damages caused by the at-fault party.
What Type Of Claims Are Recoverable In A Wrongful Death Case?
In a wrongful death case, the estate of the deceased may have a claim for loss of power to work and earn money or loss of income that the decedent was expected to earn over the course of their life time. The estate may also make a claim for and recover for any pain and suffering that the decedent experienced between the time of the injury and death. The estate may also recover any medical bills in the treatment of the decedent as a result of the accident.
In the case of the wrongful death of a child, the surviving parent may be able to recover for loss of a consortium in some instances.
In the case of a surviving spouse, there may also be a claim for loss of consortium.
How Long Do I Have To File A Wrongful Death Claim?
Generally speaking, the statute of limitations on a wrongful death claim is one year from the date that a personal representative is appointed in Probate Court. The personal representative must be appointed and the estate must file a civil lawsuit in Circuit Court within one year. If this does not happen, your action is waived or lost forever.