Wrongful Death Versus Probate: Differences
As an Orlando death attorney, one common question from my clients is whether they also need a probate attorney. Many do not understand the difference between a wrongful death lawsuit, on the one hand, and a probate action, on the other.
Let me briefly explain.
What Is A Wrongful Death Case?
A wrongful death lawsuit is typically filed by survivors of the person who died. These cases can be based on a number of negligent actions of others, such as a shooting death (which leads to a possible negligent security claim against the property owner where the shooting took place), auto accident death (obviously caused by negligent drivers, and typically limited to the amount of all available insurance policies), medical malpractice (when a medical provider’s negligence caused death), swimming pool drowning death (often a premises liability case), products liability cases (where a defective product caused death), and similar cases. There are many different scenarios that might lead to a valid claim for survivors under Florida’s wrongful death statute.
If there are grounds for a wrongful death lawsuit, then, on behalf of survivors, a wrongful death lawyer would be pursuing a lawsuit to prove that someone else was negligent, and that caused the death of their loved one.
What Is A Probate Case?
In contrast, a probate lawyer only deals with Florida’s probate laws. Those are the laws that apply whenever anyone dies, and they determine how the person’s estate is distributed. For example, there are many laws governing the requirements for wills and trusts (such as the requirement that there be two witnesses to every will, for example). There are also laws called “intestacy statutes,” which govern the distribution of an estate whenever there is no will, or trust. The intestacy statutes determine which survivors get what portion of a decedent’s estate.
But, the important point to understand is that probate applies ANYTIME ANYONE dies, with or without a will. Basically probate laws determine the distribution of an estate, even when death was caused naturally. By contrast, a wrongful death lawyer is needed when someone’s negligence caused death, for example, if a negligent driver caused the death of another in an auto accident.
If Someone Dies, Do You Need A Wrongful Death Lawyer, Or A Probate Lawyer?
IF you believe that negligence might have caused the death of your loved one, then you need a wrongful death lawyer. When negligence caused death, a wrongful death lawyer always needs a probate lawyer, and vice versa. Anytime we accept a new wrongful death case, we hire a probate lawyer for our client (unless our client already has their own probate lawyer). We then work hand-in-hand with the probate lawyer, to ensure that the probate part of the case is handled properly (which involves approval of any distributions by the probate judge).
But understand: the probate lawyer is not involved in pursuing the monetary damages available as a result of the negligence of a wrongdoer who caused death. Wrongful death lawyers have that job.
Wrongful Death From Auto Accident: An Example
Let me give you a simple example.
One of my clients called me after tragically losing a loved one after an auto accident. My job was to fully investigate the cause of the auto accident, prove that the defendant driver caused the accident, and recover any available insurance proceeds or defendant assets. Once I fully recover the damages for the auto accident (which usually is capped at the amount of insurance proceeds), then I send the check to the probate lawyer, who distributes the proceeds to the estate, in accordance with Florida’s probate laws.
Should All Wrongful Death Survivors Have The Same Lawyer?
Incidentally, if there are multiple survivors, the best scenario includes all survivors having the same wrongful death lawyer (as long as they have no conflict, which usually means they can agree how to divide the recovery before hiring the wrongful death lawyer). This is important because usually the probate lawyer will want to know how the parties want to divide the estate proceeds. This is also important because, unless all survivors agree, there can be a long and expensive battle between the survivors regarding who deserves what amount of money.
Who Hires The Wrongful Death Lawyer?
Ideally, everyone who is a “survivor” under Florida’s wrongful death statute should hire the wrongful death lawyer. For example, if a husband lost his wife, but she had children from a previous marriage, ideally the father, on behalf of the children, would hire the same lawyer, assuming there is no conflict of interest between the three people, which generally means assuming the three people can agree how to divide the proceeds of any lawsuit verdict or settlement.
If everyone cannot agree on the same wrongful death lawyer, the case can get messy to the point where no one gets good or any representation (that varies a LOT depending on the facts of the case, and the relationships involved).
Anyway, the person who actually files the lawsuit is the “personal representative” of the estate (usually the spouse, if there is one, or closest relative, or person appointed by will). The personal representative can be appointed by will, or, if there is no will, a judge can appoint a personal representative. That person actually pursues the wrongful death damages on behalf of ALL survivors.
In the example above, let’s say the former spouse becomes the personal representative. He would pursue the lawsuit for ALL of the people entitled to recover, and the proceeds would be divided between all of the survivors, based on their agreement. (If children are among the survivors, and the recovery exceeds a certain monetary threshold (currently greater than $15,000), then a guardian ad litem is appointed to review the fairness of the award to the child, and judges carefully review the guardian ad litem report.)
If YOU believe that you might have a wrongful death case, but aren’t sure whether you are the proper survivor to pursue the case, please give me a call. I will ask you about the facts of your situation, and tell you who can pursue what damages.
Who Is A Survivor Under Florida’s Wrongful Death Statute?
This varies depending on the cause of death.
In general, medical malpractice cases have a very limited group of survivors; other types of death cases include slightly more relatives who are entitled to recover. You can read more about which survivors can recover what damages here. Generally, for medical malpractice, only spouses and children under 25 can recover (or, if a child died, parents can recover for children under 25).
There is a very narrow exception to this rule — specifically, if a blood relative was totally (100%) dependent on someone who died, then they might be able to pursue a case. (This is further limited in medical malpractice cases — where only the parents can recover for the death of a child over 25, and, as a practical matter, medical malpractice lawyers will ONLY pursue these claims in the extremely limited situations where the parents were totally (100%) dependent on their child for financial support, and all life services (like 100% care-giving). So this “support and services” exception only applies to an exceptionally small percentage of cases.
For most medical malpractice wrongful death lawyers, as a practical matter, this “total dependence” means total — as in the person was incapable of working and supporting themselves, like an elderly parent with downs syndrome. (Note the wrongful death statute technically allows recovery when there is partial dependence, but other aspects of the medical malpractice cases make those cases cost-prohibitive to pursue.)
For wrongful death cases OTHER THAN medical malpractice (like auto accidents, or shooting death / negligent security cases), there is a broader class of survivors, but still limited. In those situations, a parent can pursue recovery for the loss of a child, and vice versa.
Do All Survivors Need Probate Lawyers?
Again, if negligence was possibly a factor in the death, then all survivors need a wrongful death lawyer, who then hires the probate lawyer. In most cases, the probate lawyer plays a very small role in the case. While the wrongful death lawyer must pursue the lawsuit to prove the negligence (like prove the negligent security), the probate lawyer only has to have the division of the proceeds approved by the probate judge, in accordance with the will, or Florida’s intestacy statute. Those are very different jobs, but the probate and wrongful death lawyers do work hand-in-hand.
If you lost a loved one in a way that you feel was caused by the negligence of another person, please call me today for your free consultation. There are never any costs or fees, until we recover money for you.
You can reach Orlando wrongful death lawyer Tina Willis, usually pretty quickly, by calling or texting (407) 803-2139.
I appreciate you providing an example when a wrongful death lawyer would be good to have. Surely there are loved ones that have been lost in accidents similar to this. It is good to know that there is help waiting and available for you.
Thank you. Wrongful death cases are always tragic and hard to cope for any close family members. But they are often essential to their financial well-being, and sense of closure and justice, in some cases.
my mom dided last month due to the nurses not checking her blood sugers and she died with her blood sugar at 30 a lawyer took the case now what do i do
Once a wrongful death lawyer has accepted any case, then your lawyer should be telling you what to do. This is an older comment but if any lawyer hasn’t told someone what to do after being hired to handle a wrongful death case on their behalf — then a second opinion would be in order.
my mom died broke i am the one left in charge of the estate but there is no estate so if i get money from her death and i just tell my sisters that she died then wouldnt they have to come to me and try to get money they had nothing to do with my mom through life and death. after i tell them shes dead if i can find them, wouldnt they have to come to me for the money i made from the nurseing home killing her.
I’m so sorry for your loss. I can’t tell you whether your siblings would get any money. It looks like from another comment, you have hired a wrongful death lawyer, which is good. They will evaluate all family relationships and tell you who can or should be involved, depending on the state you live in (laws vary by state), and often the closeness of the individual relationships. But it is a positive thing for you that you were left “in charge of the estate.” This often carries practical power but the details are complex and fact / evidence intensive / dependent.
my sisters had nothing to do with her life and was never there for her,they had no contact with her since they went on there own, now that this happen to her i have done everything to get this done si if i get money wont they have to sew me for there part in it money wise, my mom left me in charge of the estate, but there was none, i went through all this because they did this to my mom. my sisters did not help in any way if i get money wouldnt they have to take me to court and sue me for what they are supose to get if anything.they never told me my dad died.
Hello. Your question doesn’t provide nearly enough information for me to answer who would get what. And we can’t answer “who gets what” and “who has to sue” for wrongful death, in an online forum. We need many more facts to answer these type of questions. In general, if you are appointed as the personal representative in Florida, you can pursue a wrongful death case. In general, the closeness of any relationship is a factor in wrongful death cases — but the distribution is complicated — and requires assistance from a wrongful death lawyer, if negligence was involved, or a probate lawyer, if not.
Thanks for helping me understand that there are also wrongful death cases that have survivors as well, but they are very limited as you said. I just got curious about this since my best friend told me that they might have to hire a lawyer for this kind of case for their grandmother. It appears that their grandma died due to a medical malpractice in a hospital that they trusted to cure her for months. It made me curious about how this kind of case is being handled.
Hi my name is Connie Bitetzakis. My father passed two years ago. I fought the will as the trial judge deemed it valid. The appellate court reversed the decision. In the interum.we deposed the wife who we now know had her handwriting on bvb this purported will. She tried to defraud the court by filing a forged instrument.
In depositions she stated my father was on 24/7 oxygen which I knew wasnt true. She changed her story and said he didnt always need the oxygen and she kept it in . the car. She changed her story because she knew we would have witnesses to attest that they never saw him on oxygen. She said she ordered oxygen every week and that wasnt true. Do I have a wrongful death case?
Hello. I’m sorry for your loss of your father. Wrongful death laws, including wrongful death statute of limitations, vary by state. At least in Florida, the statute of limitations for wrongful death is generally two years from the date of death, but that can vary if the death was caused by medical malpractice (when the statute starts running on the date of the medical negligence), or homicide, when the statute doesn’t necessarily start running at least until the perpetrator is identified). That being said, since you’ve already been involved with litigation, IF your lawsuit involved wrongful death, then you should ask your current lawyer. If your lawsuit was probate only, then you would need to consult a wrongful death lawyer about any potential wrongful death claims (we do not give answers online about whether there is a case — you would need to call our office). In general, if two years have passed, it can be very difficult to impossible to pursue most cases — very few fall within exceptions but a few do.
Tina,
My brother died in in November, his official cause of death was pneumonia, respiratory failure and obesity. In the afternoon of the 15th his wife brought him to an urgent care, there they took his pulse ox which was 73. They wanted to call 911 but according to my sister in law my brother refused. Instead she took him to another urgent care across town who gave him antibiotics. She took him home, according to her he had a few drinks and shortly after midnight he sat up in bed, went to stand up and collapsed striking his head on the nightstand before hitting the floor. He turned 45 exactly one week prior. Also, according to my sister in law he passed a mandatory physical by the FAA physician and was cleared for work just 2 days prior to being dead. My family wants to sue her for wrongful death because she failed to take action when because of my brother’s oxygen levels he was in hypoxemia and was not in any condition at that point to make medical decisions. As his wife doesn’t she have a duty to ensure he gets the medical care that was instructed? Also, she was brought here on a 90 day Visa, my brother married her 2 days before the Visa expired because she told him she was pregnant, then shortly after they married she claimed she lost the baby. After going through fertility treatments my brother was told he was sterile because of his drinking problem. Everything is very suspicious. Please let me know if you would be willing to do a phone consult as we are in NJ. My brother passed in Jacksonville Fl. Thank you
Hello. I’m very sorry for your loss. What a tragic situation, and he was so young. Unfortunately, due to legal restrictions, with some rare exceptions, like an extremely wealthy defendant, we generally do not sue individuals for causing death, unless they have insurance that would cover the loss (like car or truck accidents). Also, if ANYONE wants to consult with us for a wrongful death case, then they need to call our office for a free preliminary evaluation, then a free consult with a lawyer IF we think we might be able to help. Often the issue isn’t whether technically there is a case, but whether practically there is a way to pursue any financial recovery (such as through an available insurance policy). Again, I’m very sorry for your loss.
This is some really good information about wrongful death. It is good to now that there are a lot of variables that go into one of those cases. It seems like a good thing to get a lawyer who can help you with a tricky case.
It’s helpful to understand that a wrongful death case is a lawsuit going after a negligent action that lead to a death, whereas a probate case just handles how someone’s estate is handled. My brother passed away recently due to an equipment failure at work. We’ll probably want to find a lawyer that can help us figure out the situation and know what to do.
My sisters and I (there are 4 sisters) agreed to sue a nursing home after my mother’s death for wrongful death suit. We signed papers to have my sister be personal representative. She had all the papers mailed to the court and after a couple of months the copies came back and she was given Probate. She was overly excited, out of the norm and it seemed odd. We haven’t hired an attorney and are doing the probate which she has done and is giving what is needed to the lawyer we get. This is in Philadelphia. She mentioned to me that she was going to take extra monies out of our sisters and my checks, if suit was settled, for her work.All she did was mail all the records to the court for probate. Can she deduct anything from siblings check if settled? What does she mean “I got Probate? Who distributes the funds? The attorney or my sister that got probate? Will all 4 sisters have to agree to a settlement amount? Please can you a sawnswer this. And can each sister get their own attorney for this,”?
The answers to your questions vary by state, a lot. And we can’t give legal advice on this site. We would need to know much more information. But the key really is — if you think that you MIGHT have a wrongful death suit, you should call a lawyer who specializes in wrongful death. Usually we provide free consults after a brief preliminary interview to make sure that you potentially have the type of case we might handle. The evaluation is all free. If a wrongful death lawyer cannot help you, then many people would need a probate lawyer. But the key difference between probate & wrongful death is that probate lawyers do not sue for wrongful death caused by another the negligence of another person or entity. As far as fund distribution, that is normally handled by the probate lawyer — but the administrator makes some decisions that the probate lawyer needs him or her to make. At least in Florida, the administrator of the estate usually makes key decisions — and the probate lawyer (and the court) make those things happen, if they comply with legal requirements. So, at least in Florida, generally the personal representative (aka executor in other states) makes the decisions, like settlement amounts in a wrongful death case. This person can be appointed by will or by operation of the intestacy statute, if there was no will.
I’m glad you explained when you would want a probate lawyer instead of a wrongful death lawyer. My dad just lied and we need to get his property divided up between the 5 siblings. I’ll have to consider getting an estate lawyer to help me be the executive of the estate.
You’re welcome. I’m sorry you lost your father. Probate can be complicated, and really frustrating for the survivors. Just remember that if anyone dies as a result of negligence, then they need to call a wrongful death (not probate) lawyer first.
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