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How to Qualify for Court Appointment to Bring an Accidental Death Case

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When a loved one dies unexpectedly in an accident, there’s a lot to undertake emotionally, financially—and legally.

In a case for a settlement due to the death of a loved one, called “wrongful death,” the vital first step is figuring out who represents the victim’s estate. That person hires the attorney and makes all decisions related to the case. But you don’t have to be the estate representative to be eligible for a settlement.

Here’s how it works in South Carolina:

The Name

The estate’s representative is called a “personal representative,” or PR. Other states call it an executor.

How to Become a Personal Representative

There are two ways:

  1. You’re named in the will. If the victim left a will, it often names a PR.
  2. If there’s no will, or the PR in the will died or doesn’t want to perform the duties, the law gives priority to the following, in this order:
  • The surviving spouse who inherits under the will
  • Other people who inherit under the will
  • The surviving spouse who does not inherit under the will
  • Other heirs, meaning people who could inherit from the victim by law
  • If 45 days pass with no PR, any creditor who qualifies under the law to apply may be appointed
  • After 4 months with no PR, any person the court appoints based on an application by the state Department of Revenue

These people can also nominate someone to be PR in their place unless the will forbids it.

The PR appointment can be contested in probate court. We’ve handled cases like these. There can even be agreements reached between parties in these disputes where a Special Administrator is named to make decisions on the wrongful death case while the PR handles the rest of the estate business.

Make It Official

You can’t do anything until you’re officially approved by the probate court. That means filing the estate in probate. You’ll meet with a caseworker who helps you do all the paperwork and meet court deadlines. Once approved, the probate court gives you “Letters of Appointment.” These official documents with the court’s seal signify you’re the only estate representative that financial institutions, courts, and insurance companies can deal with—that includes settling a wrongful death case.

Do It First and Do It Now

You need to get officially appointed as the PR now because legal deadlines are ticking away. It’s especially important to do this if there’s no will. As unsavory as it sounds, another relative may try to beat you to it, especially if you’re divorced and the case is about your child who passed away. Generally, the parent with primary custody has priority.

If you’re not the PR, you can’t even get medical records to prove the cause of death or victim’s suffering for the survival part of the case. You certainly can’t file a lawsuit or even assure an insurance company it can negotiate with you—or hire a lawyer to do it.

You’re not alone. We can help. In wrongful death cases, we help our clients take this vital first step by filling out probate paperwork and getting you to the probate court immediately so you can hit the ground running.

If you’ve got questions, which almost everyone who’s been thrown into this horrible situation does, reach out how you want to. Fill out our Get Help Now form at the top of this page or you can always just call us toll free at 888-230-1841.

 

Rob Usry
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Rob is a South Carolina personal injury and criminal defense lawyer.
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