Wrongful Death: Naming the Proper Personal Representative of the Estate: A Trap for the Unwary
Justin Sheldon—July 13, 2022
By filing a wrongful death lawsuit, family members can seek compensation on behalf of a loved one who died as a result of someone else’s recklessness or negligence.
Under Virginia law, it’s essential to name the proper personal representative of a wrongful death estate. Naming the wrong representative can be a costly mistake—not only can it nullify the lawsuit, but it can also waste valuable time.
Below, we discuss:
- Who can bring a wrongful death lawsuit in Virginia
- What can go wrong when naming an unqualified personal representative
- Why legal counsel is so important throughout this process
Who Can Bring a Wrongful Death Lawsuit in Virginia?
According to Virginia law, a wrongful death lawsuit must be brought by and in the name of the deceased person’s personal representative.
This means that whoever is selected as personal representative of an estate must be:
- Duly qualified
- Appointed by a Virginia circuit court for the purpose of bringing a wrongful death action
A personal representative can be a qualified family member, a named executor, or a neutral third party, like an attorney or guardian ad litem.
If the deceased person was a minor, the custodial parent may be named as a personal representative. However, the parent can waive their right to administer their child’s estate in favor of any other designated person.
Important: The personal representative isn’t necessarily the same person who will receive wrongful death damages.
For example, an attorney may be appointed as a personal representative while the deceased person’s surviving spouse will receive any wrongful death damages recovered by the estate.
Who Can Recover Wrongful Death Damages?
Wrongful death damages go to the decedent’s
- Surviving spouse
- Children of any deceased child of the decedent
If the decedent regularly provided financial support to their parents during the 12 months before their death, these parents may also qualify to recover wrongful death damages.
If the decedent has no surviving spouse or children, wrongful death damages will go to the decedent’s
- Any other relatives who depend on the decedent for support and share their household
In many respects, the distribution of wrongful death damages is similar to how assets are distributed when someone dies without a will.
What Can Go Wrong if a Non-Qualified Personal Representative Sues for Wrongful Death in Virginia?
If a deceased person’s will names a non-qualified person as a personal representative, things can become complicated. And making even a single misstep at this stage can cause a wrongful death lawsuit to be dismissed later.
Appointing someone as an executor or personal representative doesn’t necessarily qualify that person to bring a wrongful death lawsuit.
Instead, the personal representative will either need to
- Become qualified to bring a wrongful death lawsuit and seek appointment or
- Step aside and allow the circuit court to appoint a qualified representative
If the personal representative lives outside Virginia, or otherwise can’t become qualified, any legal documents they file on behalf of the estate, including a wrongful death complaint, become null and void.
Worst of all, if this mistake isn’t discovered until after the statute of limitations has passed, the case will be dismissed.
In Virginia, personal representatives have two years from the date of death to bring a wrongful death lawsuit. Missing this deadline, even by just a day, will prevent the estate from ever recovering any wrongful death damages.
What Happens if the Decedent Didn’t Live in Virginia?
While a personal representative suing in Virginia must be qualified in Virginia, the same isn’t true of the decedent themselves.
In other words, it’s common for Virginia courts to decide wrongful death lawsuits filed on behalf of out-of-state decedents.
But again, the personal representative must be qualified to serve in Virginia. Even if the personal representative is qualified to serve in the decedent’s home state, they can’t file a wrongful death lawsuit in Virginia until they’re qualified by a Virginia court.
This means that relying on a personal representative’s out-of-state qualification can often become a trap for the unwary.
In Closing: Talk to a Virginia Wrongful Death Attorney
If a loved one has been killed by another person’s negligence, you have the right to recover damages from the person or people responsible.
But to recover these damages, it’s crucial that your attorney knows exactly how to bring a wrongful death lawsuit under Virginia law. The last thing you want is to have your claim dismissed on what seems like a technicality.
Get in touch with us today to get started on identifying and appointing a qualified personal representative. We’ve handled many wrongful death cases and are here to give you the legal support you need.
Justin Sheldon's law career of over ten years began with a sympathy for those who had been injured and a passion for representing those injury victims. With years of experience, ongoing legal education, and various awards winnings, Justin provides the expert and fierce legal representation that Virginia personal injury victims both require and deserve.