New York City Wrongful Death Attorney

Personal injury claims are made when one person’s negligence leads another to injury and damages. When those injuries are severe enough to end the victim’s life, the case is then considered as one of wrongful death rather than personal injury. In most states, the family of the deceased has the right to file a claim of wrongful death against the negligent culprit in order to recover compensation for their loss. This process in the New York takes a much different shape because of the principles behind the civil action but will eventually lead to the same effect on the grieving family.

Family members do not necessarily have the right to file a claim of wrongful death in New York. The state considers wrongful death a direct injury to the victim, which it is, and this makes it a matter requiring personal action. Since the victim is not able to file the claim themselves, a personal representative of the deceased must file the claim on their behalf. In theory, this is considered a substitution for the victim themselves filing a wrongful death claim against the person that caused their injury or, in this case, death.

Who is a Personal Representative?

Simply stated, a personal representative is someone who is put in charge of another person’s financial affairs. This person can either be a legal representative or a trusted friend or family member of the estate owner. The question of personal representatives introduces the subject of estate management. Wrongful death claims in New York merge the legal fields of personal injury law and probate law by requiring the claimant in the case to be a personal representative of the decedent’s estate. The claims are governed by The New York Estates, Powers and Trust Laws (EPTL) as opposed to the civil code that governs other personal injury actions. Personal representatives are usually chosen by the individual themselves when drawing up trusts or wills for their estate. However, in the event that there is no will or trust at the time of death, the court may appoint a personal representative to settle the financial affairs of the deceased.

If there is no personal representative at the time of the wrongful death, a family member or individual with a personal interest in the estate may request to be named the personal representative. Once the court names them the trustee of the estate, they will then be able to file a wrongful death claim for their loved one.

Who Recovers the Compensation?

Given this unique requirement for New York wrongful death claims, one would wonder who receives the money recovered in the claim. Although a personal representative of the decedent is the only legitimate party to be named in a wrongful death case, they are not necessarily the recipients of the damages. When an award is granted for wrongful death, the damages recovered are automatically added to the estate of the decedent. This, again, is because the claim is thought to be an indirect civil action by the deceased through their personal representative. Therefore, the damages recovered technically belong to the deceased, which is why they are added to his or her original assets.

Since one of the duties of the personal representative is to manage the financial affairs of the deceased, they will be expected to execute the wishes of the deceased concerning their estate, which now includes the money recovered from the claim. According to the will or trust in place, the compensation will be disbursed among the family members and beneficiaries named in the estate. If there was no established will or trust at the time of death, the family members and persons with an interest in the estate will have to go to probate court to have a judge disburse the estate, along with the recovered damages.

Do I need a personal injury attorney for wrongful death?

Absolutely. Just because the claim is filed under the name of a personal representative, it does not necessarily mean that family members are not involved in the process at all. It is in the best interest of anyone involved for a New York City wrongful death attorney to be consulted in the claim. While the representative is named in the suit, the personal injury attorney on the case will be actively involved in representing the interests of the deceased and their family members in order to ensure a fair settlement. While wrongful death is governed by EPTL, it still involves the elements of a personal injury case including duty of car and negligence. These are subjects that require the knowledge of a personal injury attorney. Therefore, wrongful death claims should involve the legal representation of a New York City personal injury lawyer.