When filing for wrongful death, the first thing that needs to happen is that an estate must be opened. This is a legal requirement that gives the representative the authority to start the wrongful death claim.
Let’s talk about how to open an estate for a wrongful death claim, as well as the 5 W’s when it comes to opening an estate for a wrongful death claim.
Why Do You Need to Open an Estate to File a Wrongful Death Claim?
South Carolina probate law confers rights to the personal representative. One of the rights the representative has is to compromise and settle claims for wrongful death and survival actions. S.C. Code § 62-3-715(24). You must open an estate to name the representative and give them the power to pursue the case.
When appointed, the person must act reasonably for the benefit of interested persons.
How to Open an Estate for Wrongful Death
To open an estate for wrongful death, complete Form 300 and submit it to the probate court where the victim lived. Form 300 is an application for an informal proceeding or a petition for a formal proceeding.
In addition, you’ll need to present a copy of the death certificate. If the decedent had a will, submit it along with the death certificate within 30 days. Even if there is no will, you still start the process for opening the estate by petitioning the court.
Who gets appointed for a wrongful death claim?
Usually, the person who gets appointed as the representative is the person nominated in the victim’s will. S.C. Code § 62-3-203 creates a list of priorities for appointment. After the person named in the will, the next priority is the surviving spouse of the decedent, who is also a devisee. Then, other devisees of the decedent, the surviving spouse, and other heirs may be appointed.
- A person with priority to be appointed representative may nominate someone else.
- It’s possible to object to someone’s appointment.
- The court may exercise discretion to appoint someone with an equal or lower priority. There may be several reasons to do so, including if others renounce their right to serve.
- Someone under 18 may not be appointed.
- A person may be disqualified if they are unsuitable to serve.
What does it mean to open an estate?
Opening an estate means starting the process of settling a deceased person’s assets and debts. This includes legal claims they may have against others and anyone who may have a legal claim against them. Starting an estate means assigning the powers, duties, and liabilities of a personal representative. The person then has the authority to settle the victim’s estate, including filing a wrongful death claim.
Aren’t wrongful death proceeds not subject to claims of creditors?
That’s true – but probate still must be opened to start the wrongful death claim.
To open an estate account, you need:
- Death certificate
- Petition, signed and filed
- Filing fee (depends on the assets owned by the defendant)
- Bond (if required)
- Form 305ES – Information to Heirs and Devisees, within 30 days of appointment
- Form 120PC – Proof of delivery
Form 300 is six pages long. It identifies the decedent and the petitioner, giving basic contact information. The form lists beneficiaries named in the will, if there is a will. It asks for heirs who are not devisees, which is anyone who would inherit if there was no valid will. There are questions about the decedent’s history that may impact the administration of their estate.
The form asks if the applicant is seeking an informal or formal appointment, the priority for the appointment, and whether anyone else has a higher appointment. You sign the form and submit it to the court.
The court may approve of the informal appointment or refer the matter for formal proceedings. If the estate is appropriate for formal probate, proceedings will commence, including a hearing as to why the person requesting appointment is the proper person.
When do you open the estate to start a wrongful death claim?
Open an estate and get the personal representative appointment before you start the wrongful death claim. By itself, opening the estate doesn’t start the wrongful death claim. You must keep time limits in mind and file your wrongful death claim before time expires.
What if the proceeds of the wrongful death claim will be distributed inconsistently with the person’s will? Do I need to open an estate then?
Yes. You must open an estate even if the intestate heirs are inconsistent with the will. Wrongful death proceeds are distributed as though the victim had died intestate.
The victim’s will controls how their personal estate is divided. But it doesn’t apply to the wrongful death proceeds. Even when the two have inconsistent beneficiaries, opening the estate is the way to start the wrongful death process.
Where do you file to open someone’s estate?
To open an estate, petition the Probate Court in the county where the decedent lived or where they have real property. For example, in Greenville, you would petition the Greenville County Probate Court.
Your wrongful death lawyer can help you determine where to file the wrongful death claim.
Regardless, the estate should be opened according to the decedent’s place of residence and property ownership, as stated by South Carolina law.
Get Help to Open an Estate Before Filing for Wrongful Death
Opening the estate is the first step in filing for wrongful death. You must receive the necessary appointment and address any issues that may arise in the process.
Attorney Robert “Bobby” Jones of Bobby Jones Law handles complex wrongful death claims.
He understands the importance of having the correct appointment to begin the case. He can assist you with all aspects of your claim, identifying issues that may arise and ways to move your case forward.
To talk to attorney Bobby Jones about opening an estate and your wrongful death claim, contact us online now or call 864-362-2640.
