ArticlesIf your family member died due to the negligence of someone else, you are probably wondering how to file a wrongful death lawsuit in Alabama.
Unfortunately, it is not as easy as simply filing a lawsuit in State or Federal Court against the wrongdoer(s).
The process of filing a wrongful death lawsuit is complex. You can avoid landmines by working with an experienced wrong death attorney in Alabama.
The “Personal Representative” Can File A Wrongful Death Claim
Under Alabama law, only the personal representative, or executor of the decedent’s estate may file a wrongful death lawsuit:
A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.
Alabama Code § 6-5-410
In layman’s terms, you must first become the personal representative of your loved one’s Estate before you can pursue a wrongful death action.
How to Become the Personal Representative of an Estate in Alabama?
In order to become the personal representative, you have to file a Petition in the Probate Court of the county your loved one died to open an Estate.
The exception is if a minor dies. In this scenario, a parent can file the wrongful death claim.
Sometimes the personal representative of the decedent’s estate is a close family member. Other times, the personal representative is not related to the decedent.
Two scenarios typically exist when appointing the personal representative:
- the decendent died with a Will; and
- he decedent died without a Will, which is called intestate.
The Decedent Died with a Will
If the decedent died with a Last Will and Testament, the Will typically lists the executor of the estate.
The petition in probate court is for “letters testamentary” that appoints the executor listed in the Will as the personal representative of the estate and the “letters” list the executor’s authority and duties to act on behalf of the estate.
The Decedent Died Without a Will
If the decedent died without a Will, the decedent died “intestate”.
In this situation a petition is filed in probate court to open an estate and for the court to issue “Letters of Administration”, which appoints the administrator of the estate. Only the administrator of the estate can pursue a wrongful death claim on behalf of the estate.
The administrator of the estate is often an heir like the surviving spouse or child. If heirs disagree on who should be the administrator, the process of appointing an administrator (personal representative) can be highly contested.
Any recovery from the wrongful death lawsuit will be disbursed to the decedent’s legal heirs.
Due to the complicated process required to pursue a wrongful death lawsuit, we recommend that you retain legal counsel as soon as possible.
The Birmingham, AL wrongful death lawyers at Fob James Law Firm can help you open an estate and become the personal representative. Call us today for a free consultation.
Schedule a No-Cost Consultation with a Wrongful Death Attorney in Birmingham, AL
Fob James Law Firm has over four decades of experience representing clients wronged by others. We understand the trying times a wrongful death can bring and don’t want clients to go through it alone.
Our Birmingham wrongful death attorneys provide aggressive representation while we fight to protect your rights and work toward fair compensation.
We offer free case reviews. Contact us or call today, and let’s see how we can help you.
Fob James
Fob James obtained a B.S., in software engineering from Auburn University and then continued his education by getting his J.D. from Vanderbilt University School of Law. After working for a large regional firm for several years where he obtained awards for both individual and corporate clients, Fob found that his passion was fighting for individuals who have been seriously injured or wronged by others. Fob believes that the jury is the great equalizer to the power and influence that large corporations have in society.