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.
Breakdown of Estate Process
Opening an estate creates a legal “entity” that stands in the shoes of your loved one.| Step | Action | Why it Matters |
| 1. Filing | A petition is filed in the probate court of the county where the deceased person (called the “decedent”) lived. | Initiates the formal legal recognition of the claim. |
| 2. Appointment | The court issues “Letters Testamentary” or “Letters of Administration.” | This document proves who has the power to sign for the case. |
| 3. Resolution | When the case is won or settled, funds are paid into the Estate. | Ensures the money is handled transparently and according to the law. |
| 4. Distribution | Funds are distributed to heirs according to a Will or state intestacy laws. | Protects all heirs and ensures the right people receive their share. |
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.
