[WSBAPT] Wrongful death / probate

[Heather de Vrieze]

Not specifically my area of the law, so no cite for you, but I believe only the Personal Representative can bring the WD action. That said, if the surviving spouse so chose, they could be appointed as the Personal Representative of the CP and that might allow the surviving spouse to file without the cooperation of the child Personal Representative under the Will.

Heather

Heather S. de Vrieze
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Rachel Bender
Sent: Tuesday, March 2, 2021 3:19 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Wrongful death / probate

Hi all,

Spouse A prepared a Will, naming her adult child as beneficiary and specifically "cutting out" Spouse B. Child is named Personal Representative. However, there is no separate property - only community property owned by Spouse A and B together.

Spouse A dies. Spouse B wants to file a wrongful death claim on behalf of estate. Would PR still be the only person able to file a wrongful death claim even though there is no separate estate and everything now belongs to Spouse B?

I guess my question is, if there is no separate estate to manage, does the named PR still have the power to bring claims or can the surviving spouse represent estate in wrongful death claim?

I'm assuming it's still PR, but wanted to check.

Rachel R. Bender | Member, Attorney

Bender Law PLLC
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