If the negligent or intentional act of someone else killed your loved one, you may be able to recover damages with a wrongful death lawsuit. Under Florida state law, only specific people can file type of legal action.

Only the decedent’s personal representative can file a wrongful death lawsuit. Neither the survivors nor your loved one’s estate can file the lawsuit unless they are the personal representative.

It is up to the personal representative to identify all potential beneficiaries of the lawsuit, including the estate of the deceased, in the complaint. The personal representative must also allege each beneficiary’s relationship to the decedent.

Who can serve as the personal representative?

Anyone who is of legal age and who was a Florida resident when your loved one died can serve as a personal representative, unless they have faced a felony conviction or lack the physical or mental capacity to do the job.

The law also provides for certain exceptions for non-Florida residents. For an out-of-state resident to qualify, he or she must be a relative, by birth or adoption, of the deceased. The following people could serve in the role:

  • A direct relative, such as a parent, child, grandparent, or grandchild of the deceased;
  • A spouse, sibling, aunt, uncle, niece, or nephew of the deceased, as well as their direct relatives; or
  • The spouse of any of the above relatives.

What happens if more than one person wants to be the personal representative?

The court will choose the personal representative based on state law. If your loved one left a will and named a personal representative, the court will give that person first preference. If the deceased did not name anyone, the court will ask everyone with a claim to the estate to choose someone. If they cannot come to a majority decision, the court will turn to a devisee—that is, someone the deceased granted real property to in their will.

If there is no will, the court gives preference, in this order, to:

  • The surviving spouse;
  • The majority choice of those with a claim to the estate; or
  • The decedent’s closest heir.

What if none of the survivors want to be the personal representative?

The court can appoint someone to serve as personal representative if none of the survivors choose to serve, whether the decedent left a will or not. The caveat is that, in this situation, the appointed personal representative cannot:

  • Work for the court;
  • Hold office under the court; or
  • Work for or hold office under a judge with jurisdiction over estates and wills.

Can a company serve as the personal representative?

Yes. Florida law allows trust companies incorporated in the state to serve as personal representatives. State or national banking corporations and savings associations may also act as personal representatives.

We can help you with your wrongful death suit.

The state statutes that govern wrongful death can be complex and confusing. Let the lawyers at the Montero Law Center help. We have the legal experience necessary to navigate the judicial system and win you and your loved ones compensation for your loss. We will sit down with you and discuss your case for free. Call us today at 954-767-6500 to schedule your consultation.