When a person dies, and leaves behind anything that is worth money, the law creates an “estate.” If John Doe dies, then it will be called “The Estate of John Doe.” For example, you may sometimes see “Estate Sales,” where the possessions of someone who has passed away are being sold. What has happened, legally, is that the person died, an “estate” was created, the “estate” now owns all of the stuff, and the person in charge of the estate decided to sell the stuff.
An estate is a purely legal creation. Don’t think of it as something real; think of it as just a word that the law uses to describe everything the deceased has left behind. Specifically, ORS Chapter 113 explains Oregon Estate Law in detail. “Estate” simply means everything of monetary value that belonged to the person. If a person was wronged in a way that could give rise to a lawsuit, then that lawsuit has value, and so it belongs to the “estate.”
Of course, it’s not quite that simple. For example, if a husband dies, leaving behind a widow and children, the widow typically (not always, but usually) will automatically become the owner of whatever the husband left behind. So even if he had a house and plenty of money in the bank, he still does not leave behind an “estate,” because everything just automatically goes to his wife. Except the proceeds from a wrongful death lawsuit, which would not automatically go to his wife.
Because the person who was wronged is no longer alive, that person cannot bring a lawsuit. Their Estate, however, is legally allowed to collect any money that is owed to the person who has passed away, including money that may be “owed” due to a wrongful death lawsuit. A person who represents the estate may bring the lawsuit. The person who represents the Estate is called the personal representative of the estate. “Personal representative” is often abbreviated as “P.R.”
There are a few exceptions to the rule about who can bring the lawsuit on behalf of the Estate. For example, under the Employer Liability Law, relatives can sometimes bring a lawsuit directly themselves, not as a P.R. And if none of the beneficiaries lives in Oregon, the executor of the will (the person who makes sure the wishes of the will are carried out, see the glossary for more information) can sometimes bring suit. But generally, it is the P.R. – who is usually a close relative and therefore one of the beneficiaries – who brings the suit.
The important point here is that if a person leaves behind an Estate (money, or stuff that is worth money) in addition to a wrongful death lawsuit, then the personal representative will usually be responsible for the whole estate, not just the lawsuit. So then additional considerations must go into who the personal representative is, because he or she will have additional tasks to do in dealing with the rest of the estate. Sometimes the husband or wife (or child or parent) of the person who died will decide to be the personal representative, but will then hire a lawyer to help administer the estate.
The legalities behind working with an Estate that only has a wrongful death lawsuit, and nothing else in it, are relatively straightforward. If any other asset is included in the estate, it gets quite a bit more complicated and also more expensive. So if it is possible to legally exclude all other assets from the estate, that should usually be done. This is a conversation that must be had with an estate lawyer, not a wrongful death lawyer.
Ideally, the estate lawyer and the wrongful death lawyer will communicate throughout the case. In fact, any wrongful death attorney you consider hiring should have a good working relationship with a few good estate lawyers, as the ability to work together is quite valuable. Be wary, though, of any attorney who is willing to handle both estate and personal injury cases – these are two very different, very complicated, areas of law and in fact both your estate law attorney and your wrongful death attorney should be specialists to ensure you receive the best representation in both areas.
To learn more about your rights in a wrongful death, order your free copy of Oregon Wrongful Death Laws here.