How the Personal Representative is Chosen in Wrongful Death Lawsuit
The personal representative has to be approved by a judge. Usually, all of the beneficiaries will agree upon one of them to be the personal representative. There is a specific order that the law states (ORS 113.085) is the preferred way to choose a P.R.
Here is the order:
- Executor named in a will
- Spouse or nominee of the spouse
- Next of kin or nominee of next of kin
Usually, the surviving family members often agree on who would be the best P.R., ideally with the advice of their lawyers. And if they all agree, the judge will usually accept that person and appoint him or her as the personal representative. The best P.R. for the family will be the person who has the time, attention, and ability to work with the wrongful death attorney throughout the case. This person should also be trusted by all the beneficiaries to make decisions that will be good for everyone.
If the beneficiaries cannot agree, then they can all make their arguments to the judge about who each of them thinks should be the personal representative, and then the judge will make a decision. In that case, the order given in ORS 113.085 will matter a lot, but it is not the only consideration; it just states a preference. If there is no spouse, and the judge is deciding which “next of kin” would be best, preference is usually (but not always) given to the decedent’s child. If that child is a minor (and therefore cannot be P.R.), then preference will be given to that child’s parent or guardian. Alternatively, one person can simply petition the court to be appointed P.R., and then wait for anyone who objects to make their objections to the court. This is the most contentious way, and it would require that official notice be given to other possible P.R. candidates, and should be avoided if possible. But if there is one person who objects and won’t discuss it outside of court, it can sometimes be the only way to proceed.