Detailed Answer
In California, only the decedent’s personal representative may file a wrongful death lawsuit. Under California Code of Civil Procedure §377.30, the personal representative brings the claim on behalf of the deceased’s heirs and certain dependents. If no personal representative exists, an heir can petition the probate court to appoint one solely to prosecute the wrongful death action (CCP §377.31).
You do not need to fully open or fully administer the entire estate to pursue a wrongful death claim. Instead, you file a limited probate proceeding to obtain “letters of administration.” If the decedent left a will but no executor qualifies or steps forward, you petition for “letters of administration with will annexed.” If there is no will, you petition for “letters of administration.” The court processes the petition, sets a bond amount, and issues letters authorizing you to bring the wrongful death lawsuit.
This limited probate bypasses most estate administration duties. You focus exclusively on prosecuting the wrongful death claim. After the case resolves, any recovery flows through the estate and distributes under California Code of Civil Procedure §377.60 (CCP §377.60).
Many counties offer simplified or independent administration when estate assets fall below certain thresholds. For example, estates under $166,250 may qualify for small estate procedures under Probate Code §13100 (Prob. Code §13100), allowing faster access to recovery funds.
Disclaimer: This article provides general information, not legal advice. Consult a qualified attorney to address the specifics of your case.
Helpful Hints
- File your probate petition early to secure letters of administration before the statute of limitations expires.
- Check with your local superior court for required forms and hearing dates.
- Keep detailed records of all filings, bond payments, and court notifications.
- Consider simplified probate if the deceased’s assets fall under the small estate threshold.
- Notify all heirs and interested parties as required by statute to avoid delays.