Disclaimer: This information is for educational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Detailed Answer
Under South Dakota law, only a decedent’s personal representative may file a wrongful death suit. See SDCL §21-5-1. If you want to pursue damages for the wrongful death of a loved one in a car accident, you generally must first open a probate estate or otherwise appoint a personal representative.
Here’s how it works:
- Estate or Appointment: If the deceased left a valid will naming an executor, you file that will in county circuit court. The court issues Letters Testamentary to the executor. If there’s no will, close relatives petition to become an administrator. The court issues Letters of Administration. See SDCL §29A-3-301.
- Wrongful Death Claim: Once appointed, the personal representative files the wrongful death complaint in circuit court against the party at fault—for example, the negligent driver or vehicle owner. Under SDCL §21-5-4, you must commence the action within two years of the death.
- Damages Distribution: Any recovery flows into the probate estate. The personal representative pays debts, expenses, and then distributes net proceeds to the heirs at law under state intestacy rules or per the will.
In limited cases, South Dakota courts may allow a “statutory representative” appointment solely to pursue the wrongful death claim without full estate administration. This streamlined appointment often applies when the estate’s only major asset is the wrongful death cause of action. The local clerk of courts can provide forms and instructions.
Because probate procedures and timelines vary by county, consult a probate or wrongful death attorney to navigate the process. They can ensure you meet notice requirements, file in the correct jurisdiction, and protect your family’s rights.
Helpful Hints
- Start Early: File probate petitions promptly to avoid missing the two-year statute of limitations (SDCL §21-5-4).
- Gather Documents: Locate the death certificate, will (if any), and lists of assets before filing.
- Consult Court Clerks: County circuit court clerks can guide you to local probate forms.
- Consider Mediation: Some wrongful death cases settle via mediation, which can reduce time and costs.
- Track Expenses: Keep detailed records of funeral costs, medical bills, and lost income—they factor into damages.
- Maintain Communication: Update heirs on probate status and potential recovery distributions.