Filing a Legal Claim for a Deceased Loved One: Why You Need to Open an Estate

When a loved one passes away due to the actions or negligence of others, you may wish to bring a lawsuit on their behalf. In other cases, your loved one may already have initiated a lawsuit before their death. In both instances, there are a few extra steps that must be taken in order to maintain a lawsuit on behalf of a deceased loved one. 

When a person dies, the property and assets (including legal claims) in which they had an interest at the time of their death are collectively referred to as their “estate.” The management of the estate is handled through a formal legal process called “probate.” This process is sometimes referred to as “opening an estate.” If your loved one has died, it is necessary to open an estate in order to pursue a claim on their behalf. This is because a deceased person no longer has capacity to execute contracts or initiate a lawsuit. Instead, a lawsuit must be initiated on behalf of their estate, as their legal claim against the defendant is now an asset of the estate. 

Overview of the Probate Process

In order to open an estate on behalf of a loved one, you must first petition (ask) the court in the county where the deceased person (called the “decedent”) died to appoint a personal representative (also called an “executor” or “administrator,” depending on the state). If the decedent had a will, that person has priority and they will be appointed if eligible and willing to serve as personal representative. If the person did not have a will, the court will determine eligibility to serve as personal representative as a matter of state law; in general, however, spouses have priority, followed by children, parents and siblings of the decedent. Once the court determines the appropriate personal representative, they will issue a legal document granting that person authority to act on behalf of the decedent’s estate. If the decedent had a will, the court will issue a document called “Letters Testamentary” and if the decedent died without a will, the court will issue a document called “Letters of Administration.”

 Among other things, this person is granted the legal authority to:

• Hire a law firm to represent the interests of the deceased.
• Sign legal authorizations for medical records.
• Evaluate and accept (or reject) settlement offers.
• Bind the estate to a legal contract.

Without Letters of Administration or Letters Testamentary from a probate court, a law firm cannot legally file a lawsuit or collect settlement funds on behalf of the deceased.

Breakdown of Estate Process

Opening an estate creates a legal “entity” that stands in the shoes of your loved one.

Finding a Probate Attorney

Since opening an estate is state-specific, you should contact an attorney who handles wills and estates in the state or county where the decedent died. Our firm will work closely with your probate counsel to ensure all documents are aligned for your litigation.

• Small Estate Options: If the only asset left is the legal claim, ask your probate attorney about “Summary Administration” or “Small Estate” procedures, which can be faster and less expensive.
• Contingent Arrangements: Some probate lawyers may be willing to defer their fees until the legal claim is resolved.

Frequently Asked Questions

“My loved one had a Will naming me as the Executor. Isn’t that enough?” 

No. While a will states your loved one’s wishes, it does not grant you legal power automatically. The will must be admitted to probate, and a judge must formally sign an order appointing you before you have the legal authority to act on behalf of the estate. You should send a copy of the will to the attorney handling your lawsuit, and to the attorney handling your loved one’s estate. 

“What if my loved one didn’t leave a Will?” 

If there is no will, the person is said to have died “intestate.” In these cases, state law determines who has the priority to serve as the Personal Representative (usually a surviving spouse, then children). A probate attorney can help you file a petition to be appointed based on your state’s laws of intestacy.  However, filing a petition for appointment does not guarantee appointment, particularly if there are other living heirs with greater priority under state law. A local estate attorney will be able to guide you through this process. 

“Will the legal claim be delayed while I wait for the estate to open?” 

Opening an estate is often the first step, and we encourage starting as soon as possible. However, many states allow for “Preliminary Letters” or “Temporary Administration,” which can grant you limited powers quickly so we can meet urgent legal deadlines or preserve evidence while the full probate process moves forward.

“The bank accounts were all joint, and the house transferred automatically. Do I still need an estate for a lawsuit?” 

Yes. Even if every other asset (like a home or bank account) transferred outside of probate, the legal claim itself is an asset that belongs solely to the deceased’s estate. To “own” and manage that claim, a formal estate must be opened.

“How long does it take to get the ‘Letters’ from the court?” Depending on the county and how busy the court is, it typically takes anywhere from a few weeks to a few months. Because legal cases have strict deadlines (statutes of limitations), it is important to contact a probate attorney as soon as you decide to move forward with a legal claim. 

Need Help Getting Started?

If you are unsure where to look for a probate attorney, please reach out to our team. While we do not handle the probate filing ourselves, we can often provide a list of resources or bar association contacts in your area to help you take this necessary step.