Wrongful Death and Probate

Henry Gornbein: Howard, you recently published an article for lawyers in the State Bar of Michigan Journal on wrongful distributions of probate in wrongful death situations. Why don’t you tell us a little about that area and why it’s so important especially for people who may have suffered a loss.

Howard Linden: Sure, wrongful death is the area of law that is practiced as a specialty by many law firms in this area of the state. It deals with someone dying of unnatural causes. A wrongful death is a death due to malpractice, allegedly or an automobile accident that causes death. When someone dies, someone else has to stand in the shoes of the person who passed away. That person is called a personal representative.

Henry Gornbein: So, just to jump in, when there’s a death if someone’s going to try to sue or claim damages there has to be a personal representative involved to go forward with the lawsuit. Would that be a correct statement?

Howard Linden: That’s an absolute correct statement. In fact, the Michigan law demands a personal representative to step up and take that position.

Henry Gornbein: Let’s explain to our viewers what’s exactly the role of the personal representative is.

Howard Linden: Personal representative would be the person in charge of an estate. If the estate had other assets other than the wrongful death of the person who died, that personal representative would have to accumulate those assets, liquidate those assets and disperse those assets, either pursuant to the last will and testament of the person who died or if the person who died did not leave a will, it would be dispersed pursuant to intestate distribution under the Michigan probate code and statutes. So they have an active role in participating, usually with an attorney, in getting the assets to whom they are intended and/or liquidated. Now, if there’s a death and it requires litigation or a pursuit against someone who caused the death, that personal representative would hire an attorney to pursue a lawsuit. At the end of the day when that lawsuit is successfully prosecuted the personal representative has a great deal to say who gets what portion of the proceeds. In other words, a personal representative would have some input into the distribution. It is handled by statute in terms of interested parties who would be able to participate, but the PR or the personal representative would have an active role with his or her attorney in determining percentages of those assets.