Detailed Answer
Under Virginia law, only the decedent’s personal representative can file a wrongful death claim. A wrongful death action arises under Va. Code § 8.01-50 and must be brought by the personal representative appointed under Va. Code § 8.01-51. If you have not yet opened an estate, you cannot serve in that role.
To open an estate in Virginia, an interested party—usually a spouse or next of kin—files a petition for appointment of a personal representative in the circuit court where the decedent lived. See Va. Code § 64.2-500. Once the court issues letters testamentary (if there’s a will) or letters of administration (if there’s no will), the personal representative has standing to initiate the wrongful death suit.
In practice, many attorneys file the estate petition and the wrongful death complaint at the same time. If no one steps forward quickly, the court may appoint an administrator ad litem to preserve your claim while the full probate process runs its course.
Remember, the statute of limitations for wrongful death in Virginia is two years from the date of death. See Va. Code § 8.01-244. Missing that deadline will bar your claim.
Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Helpful Hints
- Identify the proper personal representative before filing.
- Gather the death certificate, will (if any), and proof of kinship.
- File the estate petition in the circuit court where the decedent resided.
- Track the two-year wrongful death deadline carefully.
- Consider hiring an attorney experienced in probate and wrongful death suits.
- Ask the court clerk for specific local rules and forms.