Florida law is very clear that the personal representative (PR) of the estate of the person who died is given legal authority to hire a lawyer and pursue the wrongful death claim on behalf of all survivors. However, it may take weeks before the order appointing the personal representative is signed by the judge of the Probate Court. The family often needs to make the decision to hire a lawyer before the PR has been appointed in order to investigate the traffic crash or other fatal incident. Who is the right person to engage the lawyer before the personal representative has been appointed?
The answer may turn on whether the person who died had a will or died without a will. Florida Statute 733.301 offers guidance on who has preference to be named as personal representative. If the deceased had a will it may nominate a specific person to serve as the personal representative of the estate. That person would have first preference to be appointed by the judge as the PR and would be the appropriate person to meet with a lawyer. If the will does not nominate a specific person, the majority of the estate beneficiaries could agree on the person to serve as the personal representative. Otherwise it would fall to the best qualified beneficiary of the will. This person would hire the lawyer for the wrongful death case.
In situations where the deceased died without a will, the person with first preference to act as the personal representative would be their surviving spouse. If there is no surviving spouse, or if the surviving spouse is not able or qualified to act, the majority of the heirs could agree on the person to be nominated. Otherwise, it could fall to the best qualified heir closest in line to select the lawyer.
In situations where an agreement is needed on who is best qualified to serve as PR, a meeting of the heirs or beneficiaries ideally would be held with the lawyer. If such a meeting is not feasible, once an agreement is reached on who will serve as the PR, the lawyer may give each beneficiary or heir forms to sign confirming their agreement on the person to be nominated as personal representative.
The purpose of this system for nominating the personal representative is to have the court name one person with legal authority to act on behalf of the estate. That person has the authority to hire the attorney to pursue the wrongful death claim, approve the filing of any lawsuit and, ultimately, sign any settlement checks and releases. Retaining the wrongful death attorney is a very important decision and it should be done as soon as possible. By identifying who will serve as the PR in a smooth and orderly manner, that person can engage the wrongful death lawyer with confidence. This allows the wrongful death lawyer to be retained before the PR is officially appointed by the court so that he or she can pursue all needed steps to investigate the case at the earliest opportunity.