Do You Need to Open an Estate for a Wrongful Death Claim?

"Mom didn't have anything. There's nothing to probate." It is a natural thought. Probate sounds like something for houses, bank accounts and wills, and when you are grieving, a trip to the courthouse for an "estate" can feel pointless.

But in Ohio, a wrongful death claim runs through the probate court almost every time. This chapter explains why, what kind of estate case is usually needed, and why opening it early protects your family.

The short answer

If your family wants to pursue a wrongful death claim, you will almost always need a probate court to appoint a personal representative, even if your loved one owned no property at all. The estate is not mainly about property in these cases. It gives one person the legal authority to bring the claim, settle it with the court's permission, and see that the money reaches the right family members.

Why Ohio law requires a personal representative

Ohio's wrongful death statute says the action "shall be brought in the name of the personal representative of the decedent" (R.C. 2125.02(A)). "Decedent" is the legal word for the person who died. A "personal representative" is the person a probate court appoints to act for the estate: an executor if your loved one left a will naming that person, or an administrator if there was no will or the named executor cannot serve.

The claim is for the exclusive benefit of the surviving spouse, children and parents, who are presumed to have been harmed by the death, and of the other next of kin. Our guide chapter on who can bring a claim explains the beneficiaries. The key point here is that family members do not each file their own lawsuit. One appointed person brings one claim for all of them.

No one becomes the personal representative by being the spouse, the oldest child, or the one who paid for the funeral. The probate court has to appoint them. Ohio law says no act by a fiduciary is valid before the court issues "letters of appointment" (R.C. 2109.02). In everyday probate practice these are called letters of authority. On Ohio's standard form, the judge's entry appointing the fiduciary is itself the letters of authority (Standard Probate Form 4.5).

The estate also controls any settlement

Even if the case never becomes a lawsuit, the probate court is involved. Ohio law lets a personal representative settle a wrongful death claim only "with the consent of the court making the appointment" (R.C. 2125.02(E)). The court that appointed the representative must also approve how the money is divided among the family (R.C. 2125.03).

Ohio's statewide settlement form covers an offer of settlement made before any suit is filed, as well as settlements after a suit and judgments after trial (Standard Probate Form 14.0). So an insurance company that offers to settle quickly will still need a court-appointed representative to sign the release, and the probate court will still need to approve it. We explain that hearing in Approving a Wrongful Death Settlement.

Two kinds of money: wrongful death and survival

A death caused by someone's negligence can create two related claims, which our guide covers in Wrongful Death and Survival Claims:

• The wrongful death claim compensates the family for their own losses. Under R.C. 2125.02(A) it is for the exclusive benefit of the spouse, children, parents and other next of kin, and the court divides it among them under R.C. 2125.03.
• The survival claim belongs to the person who died, for harm they suffered before death, such as conscious pain and suffering. Ohio's standard entry approving a settlement says the amount allocated to the survival claim "shall be considered an asset of the estate" (Standard Probate Form 14.2).

The probate court approves how a settlement is split between the two (Civ.R. 73.20(A)). Because the survival claim belongs to the estate itself, that is one more reason the estate must be open.

Why a "release from administration" usually is not enough

Ohio has shortcut procedures for small estates. A release from administration is available when the estate's assets are $35,000 or less, or $100,000 or less when a surviving spouse is entitled to everything (R.C. 2113.03(A)). A summary release is available in very small estates, for example where the assets do not exceed the lesser of $5,000 or the funeral and burial expenses that the applicant paid or agreed to pay (R.C. 2113.031(B)).

These shortcuts are useful for small estates, but they are designed to move existing property, not to pursue a lawsuit. The statute says an order relieving an estate from administration directs delivery of personal property and transfer of real property to the people entitled to it (R.C. 2113.03(B)). It allows the court to appoint a commissioner to sign transfer papers and report back (R.C. 2113.03(E)). Nothing in that section appoints an executor or administrator, and the release does not produce the letters of authority that a personal representative uses.

Local practice reflects this. In Montgomery County, the court appoints a commissioner in release cases (Mont. Co. P.C.R. 78.2.5(A)), and the court's checklist for approving wrongful death and survival settlements is written for "Full Administration" and states that the settlement application is filed in the estate case, using the estate case number.

So a release from administration generally will not give anyone the authority a wrongful death claim requires. Families usually need a full administration: an ordinary estate with an appointed executor or administrator. If a release or summary release has already been granted in your loved one's estate, do not assume it covers the claim. Talk with a lawyer promptly about what the probate court will need.

Open the estate early

Ohio's general deadline to file a wrongful death lawsuit is two years after the death (R.C. 2125.02(F)(1)), with some special rules explained in our chapter on deadlines. Because the suit is filed in the personal representative's name, the representative should be appointed well before then. Opening an estate takes time: gathering documents, collecting waivers or giving notice, sometimes a bond, sometimes a hearing.

Ohio courts have held that a non-lawyer personal representative may not file a wrongful death lawsuit without a lawyer when there are other family members who benefit from the claim. In Bath Manor Special Care Ctr. v. Obasogie, 2021-Ohio-2227 (9th Dist.), a son who served as administrator filed his mother's wrongful death case on his own. Because his sister was also a beneficiary, the appeals court held he had engaged in the unauthorized practice of law, and that the complaint was treated as a legal nullity that could not be fixed by later bringing in a lawyer. A family can often open the estate on its own, but the lawsuit itself is a job for a lawyer.

What you can do yourself

Many families open the estate and get appointed on their own, using the court's forms and checklists. The rest of this guide walks you through it:

• Who can serve as executor or administrator
• Opening an estate, step by step, with the standard forms

The wrongful death claim, the settlement approval hearing, any family disagreement about who should serve or how money should be divided, and anything involving a child's share are where a lawyer matters most.

Common questions