Practice Areas
The death of a family member is tragic. However, when a family member’s death could have been avoided, the grieving can worsen. That is what happens when a loved one passes away due to negligence. When this occurs, the family is often too busy to do much else but grieve and plan the funeral. However, the tragedy and the family’s loss shouldn’t go unanswered, even though it may not seem like the proper time to think about a wrongful death lawsuit. If this has happened to your family, you might be wondering how to file a wrongful death lawsuit and whether the estate of your loved one who passed away must file the lawsuit.
Have you lost a loved one due to the negligence of another party? Contact Ali Awad, ‘the CEO Lawyer,’ and his team of experienced personal injury attorneys at the CEO Lawyer Personal Injury Law Firm by calling (833) 254-2923 or contacting us online to receive your free and confidential case evaluation. Attorney Ali Awad, ‘the CEO Lawyer,’ established the CEO Lawyer Personal Injury Law Firm and quickly turned it into one of the fastest-growing law firms in the country. If we take your case, you won’t pay anything until we win.
Who Can Sue for Wrongful Death?
The statute on wrongful death has very specific regulations about who can file a claim for compensation. If the deceased person had a surviving spouse at the time of their passing, then the surviving spouse has the legal right to file the claim; in fact, no one else has the legal standing to do so. In the event that the deceased person also left behind children who are still alive, the surviving spouse is obligated to act as a representative for the children and to divide any damages award that is obtained with the children. (It is important to keep in mind that although the surviving spouse is entitled to a portion of the award for damages, this portion can never be less than one-third of the total recovery, regardless of the number of children in the family.) If the deceased person had been divorced, then the claim would be held jointly by any of the deceased person’s surviving children. O.C.G.A Article 51-4-2(d) (d).
If the deceased had children, but one of those children passed away before the decedent, the law used to state that the deceased child’s heirs (often meaning the grandchildren of the deceased) did not have a right to join in the wrongful death claim. However, this legislation has since been changed. This decision was handed down by the Supreme Court of Georgia in the case of Tolbert et al. v. Maner (271 Ga. 207, 209) (1999). Therefore, the law has been updated recently. The sum recovered “shall be evenly split, share and share alike, among the children per capita, and the descendants of children shall take per stirpes.” This provision was added to the statute in 2022 by the legislative body. See O.C.G.A § 51-4-2(d) (2). If this is the case, then the decedent’s children and the heirs of any predeceased children have the right to share in the financial recovery that can be obtained from a wrongful death lawsuit in the event that the decedent passes away without a spouse.
To file a claim for wrongful death in Georgia, as opposed to some other states, a person does not need to be the Administrator, Executor, or Personal Representative of the estate of the deceased individual in order to do so. This is due to the fact that in Georgia, the two sorts of claims that can be brought following the death of a person—wrongful death claims and estate claims—are treated as two independent entities. Claims for wrongful death are usually often brought forward by surviving members of the family (spouse, children, or parents), while the administrator of the estate typically brings forward claims on behalf of the estate. In actuality, it does not typically make a difference because the same individual generally is in charge of both. For example, the surviving husband is typically the wrongful death claimant as well as the administrator of the estate. On the other hand, this particular provision of Georgia law regarding wrongful deaths has the potential to be significant in some circumstances.
In the state of Georgia, the only circumstance in which an unrelated administrator of the estate may file a claim for wrongful death is if the deceased person did not leave behind any surviving spouse, children, or parents. In such a scenario, the administrator of the Estate would be the one to file the wrongful death claim, and any damages that were awarded would be kept for the benefit of the deceased person’s next of kin. See O.C.G.A Article 51-4-5.
Wrongful Death Lawsuit
Although you might not be considering financial compensation now because you are mourning a lost loved one, it might be crucial for you and your family later on. You might be entitled to reimbursement for the costs you incur due to caring for and losing a loved one. You might also be entitled to compensation for the emotional pain you have experienced.
Typical financial awards in a wrongful death lawsuit consist of the following:
- All medical costs associated with the illness and death
- Costs of burial and cremation
- Paid government benefits and lost wages
- Loss of the care, home assistance, and emotional support that the deceased would have offered
- Financial support lost
- The pain endured by surviving family members
- Punitive damages (where the defendant acted willfully, carelessly, or flagrantly)
You may file a wrongful death claim to seek compensation after a loved one passes away. If a wrongful death attorney can demonstrate that another’s negligence contributed to the death, close relatives like a spouse, child, or parent may be eligible to pursue a wrongful death claim.
Sometimes the individual who caused a loved one’s death is also gone. Your sole alternative in this situation for obtaining compensation is to file a lawsuit against their estate. Although this is feasible, there are some restrictions. If you want your claim to be successful, you’ll need a wrongful death probate lawyer.
It Is Possible To Sue An Estate?
The act of suing an estate for wrongful death is uncommon. Most of the time, when a family has a valid wrongful death claim, the offender is still alive. A few circumstances, nonetheless, may call for suing an estate.
For instance, the individual who caused the death of a loved one can have passed away concurrently, say in a vehicle accident. Or perhaps they coincidentally passed away soon after causing a loved one to pass away. Furthermore, you might not realize that they caused the death until much later.
If you speak with a probate lawyer as soon as you learn who caused the death, even if it has been a while, you could still be able to pursue compensation.
Every kind of case has a deadline and is governed by the state’s statute of limitations. Timing becomes much more important when suing an estate. You’ll probably only have a brief window of opportunity to act.
This is due to the fact that after someone passes away, their estate usually goes through probate before being distributed to the heirs. When this happens, the assets of an estate are divided among the inheritors and can no longer be utilized to pay for your damages in court.
The window of opportunity for bringing a lawsuit against an estate varies from state to state. The statute of limitations for bringing a wrongful death claim is two years in several states, including Georgia.
The discovery legislation is the one exception to this rule. The statute of limitations may be tolled if the cause of the death was negligent but wasn’t found until years after the fact. In essence, this indicates that the time restriction (such as two years) may start at the time of discovery rather than the time of harm or death.
The window of time is much more limited when a wrongful death claim must be made against an estate rather than a living person. Only six months are given in many states to file a lawsuit against an estate.
You must speak with a lawyer right away if you intend to sue an estate for wrongful death compensation. When there is such a limited window of opportunity, any delay could cost you your chance of receiving compensation.
But there are other restrictions that must be taken into account when seeking compensation from an estate for wrongful death. Two key factors are how an estate is structured and the strength of your negligence claim.
A Case for Wrongful Death
A person’s estate typically goes through probate when they pass away. The legal procedure of setting up financial affairs following a donor’s passing is known as “probate.” Important considerations throughout the probate process include paying off any debts and disbursing the assets of the estate to the beneficiaries.
Your probate lawyer may bring a wrongful death lawsuit against an estate if it is still inside the first six months of the probate procedure. In a typical wrongful death claim, you must present all required evidence, which includes:
- Documentation of the passing of your loved one
- Evidence that the estate benefactor was careless
- Evidence that you qualify to bring a wrongful death claim
In a typical wrongful death lawsuit, your wrongful death attorney will have to provide proof of the losses you are claiming compensation for. If you cannot demonstrate that the other party was at fault for the loss of your loved one, you will not be eligible for compensation.
Additionally, you must carefully itemize all damages, both economic and non-economic. This covers the expenses, losses, and non-financial harm caused by the death.
All of these customary wrongful death claim procedures must be followed in order to sue an estate. The estate’s ability to provide you with wrongful death compensation is the main distinction between suing an individual and suing an estate.
Limitations to Challenging An Estate
The organization of an estate’s assets can take many different forms. Sometimes, a person hasn’t done much to plan what will happen to their possessions once they pass away. The insurance coverage, however, might be available to settle a wrongful death claim if the deceased had coverage.
The majority of a donor’s estate will be subject to probate when they pass away without making arrangements for its contents. This indicates that their assets, including their real estate and bank account holdings, can be used to resolve their legal disputes. This includes court-ordered restitution and overdue debt.
In some situations, it could be more difficult than it seems to gain access to an estate’s finances. For instance, a person may pass away with a sizable estate that has enough money to cover the costs of wrongful death litigation. However, those assets might not be available in the event of a lawsuit if they implemented estate planning strategies during their lifetime.
Creating a living trust is one popular method of shielding assets from the probate process. The majority of a donor’s assets can be placed in this living trust, and upon death, the contents are automatically transferred to the chosen heir.When this occurs, the beneficiary now owns the assets, and a lawsuit cannot affect them.
Wrongful Death Lawyer in Atlanta
The CEO Personal Injury Lawyer Law Firm can assist you with a wrongful death lawsuit if you have lost a family member and think you have a wrongful death case. Let one of our knowledgeable wrongful death lawyers examine your case and assist you in making a decision.
All of our wrongful death lawsuits are handled on a contingency basis, meaning no fees are incurred until your case is settled or won. We provide free case reviews. Call Ali Awad, ‘the CEO Lawyer,’ and his experienced team of wrongful death attorneys today to receive a free, no-obligation consultation. We can assist you with exploring your legal options and avenues to ensure that you receive the compensation you deserve. Contact the CEO Lawyer Personal Injury Law Firm by calling (833) 254-2923 or contacting us online. If we take your case, you won’t pay anything until we win.