When a person has died because of the negligence of another person, a wrongful death lawsuit can be filed against the negligent person. However, the settlement will be with the person’s estate, so the only people who can file a wrongful death suit are those who would be able to claim a settlement, such as the victim’s spouse and children. If the victim had no living spouse, the settlement will go to any surviving children.

Picture of funeral arrangement

If the victim didn’t have any surviving children and didn’t have a spouse at the time of their death, their surviving parent or parents or descendants of their children will receive the settlement. If the victim did not have any of the above-mentioned close family members, the executor of the deceased’s estate can file the lawsuit and the estate will receive all compensation in a settlement. Because many people don’t know much executor’s and their role in seeking justice for the wrongful death of the victim, we’ll focus this blog on that person.

The executor of the estate is a person or pair of people appointed to administer a person’s last will and testament. In short, this person carries out the deceased person’s wishes and distributes their possessions and assets in the ways they are instructed to do so by the will. The executor pays the deceased person’s bills and debts using their funds, collects any debts owed to the estate, mediates any disputes amongst the heirs, and settles all remaining business interests. They will close the deceased person’s bank and investment accounts, hire appraisers or attorneys as needed, and may oversee the selling of the person’s house or other assets so that taxes and debts can be paid and any remaining money can be distributed to the heirs.

I always encourage people to keep their wills up to date, in part because the executor is such an important role. You would rather choose someone you trust and are on goods terms with than someone appointed by a probate judge. Choose someone in good health who is mature, trustworthy, conscientious, detail-oriented, and who knows your values and will honor your wishes. Before you have your chosen person appointed as the executor, you should ask them if they are willing to undertake this role for you. Not everyone is able or willing to do so, and no one should be surprised by this immense responsibility when they are already grief-stricken. You might ask your best friend, a long-time partner, a trusted cousin, or an adult grandchild. Some people choose their executor in part because the person has a career in a helpful field, such as real estate, law, or accounting. If you don’t have a will or no one can find your will to learn who you chose to be the executor of your estate, the probate court in your county will appoint an executor. That person will distribute your assets and settle your estate in accordance with state inheritance law, though these laws may not reflect your wishes. Without a will, however, these laws are the only guidelines the executor has.

The executor isn’t allowed to take any action that is not in the best interest of the estate. They can’t pay themselves an exorbitant fee from the estate or add themselves to the will in any way. They also can’t keep a wrongful death settlement for themselves. Rather, the settlement goes into the estate, which the executor then distributes amongst the heirs. The executor will use their discretion to do this, so they might choose to distribute the money equally amongst all the heirs or they might distribute the settlement by the same proportions as other assets in the will.

In Georgia, the statute of limitations to file a wrongful death lawsuit is 2 years after the date of the person’s death, with 2 main exceptions. First, if a criminal case is brought against the person responsible for your loved one’s death, the statute of limitations is suspended until the criminal case is completed. For example, the negligent person might have been driving drunk when their actions resulted in your loved one’s death. Loved ones have 2 years after the criminal case concludes, no matter the outcome, to file a wrongful death suit. Second, if the person died without a will, the statute of limitations is 5 years. This is because the lack of will means the courts have to get involved to appoint an executor and it takes time for the appointed executor to become aware of how the person died.

If you are a close family member or executor of a loved one’s will and are concerned that your loved one passed away due to someone’s negligence, call my office as soon as possible to set up a free consultation. As a registered nurse as well as a wrongful death attorney, I’ll be able to help you determine what happened to your loved one, and if there is the basis for a lawsuit.

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Tracey L. Dellacona

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