When someone dies by the negligence, recklessness, or intentional act of another person or corporation, that person’s family has a right to file a lawsuit to recover monetarily for the person’s loss of life and other economic losses associated with the person’s death.
In all cases of death, a Personal Representative (PR) of the person’s estate is named through the Probate Court. The PR is responsible for settling all of the deceased person’s debts and settling all outstanding business matters etc…; but also, the PR has the exclusive right to file any legal action(s) necessary to recover monetary damages on behalf of the family and Estate of the deceased person.
The PR (sometimes called the “executor”) is often named in the decedent’s will; and if no will exists, the Court will appoint a PR who meets the criteria for being named. Even if the PR is named in a will, this person has to be formally approved by the Probate Court, and may serve with our without bond, depending on the nature and size of the Estate. Closest family members are considered first, and have “statutory priority” to serve, in the event there becomes a dispute over who has authority to serve as PR.
The beneficiaries of the Estate are people who have a right to a portion of the Estate, through specific provision in a will; or through statute, where the deceased person dies without a will. Sometimes the PR of the Estate is a beneficiary, other times, not. It depends on the situation. Estate PRs can agree to jointly serve as well.
The three kinds of potential claims brought for the death of a loved one are (1) claims brought on behalf of the Estate; (2) survivorship claims, which are for the benefit of the Estate, rather than the family of the deceased. If it is shown that a deceased person experienced conscious pain and suffering, a portion of the proceeds of any settlement should be apportioned to the survivorship claim for court approval. The percentage apportionment of these claim amounts can affect creditors’ rights and claims on the Estate. “Appropriate damages in survival actions include those for medical, surgical, hospital bills, conscious pain, suffering, and mental distress of the deceased.” Scott v. Porter, 530 S.E.2d 389, 340 S.C. 158 (Ct.App. 2000) (citation omitted); and finally, (3) Punitive Damages, to punish the wrongdoer in appropriate cases for intentional or grossly negligent actions or omissions.
Posted in: Wrongful Death