Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Under Arkansas law, a wrongful death action must be filed by a personal representative of the decedent’s estate. Arkansas Code §16-62-102 requires that the person bringing the suit be appointed by the probate court. This appointment gives that individual legal authority to act on behalf of the decedent’s survivors.
Here’s how the process typically works after a fatal car accident:
- Open a Probate Estate: Begin by filing a petition with the circuit court in the county where the decedent lived. If the decedent left a will, the named executor applies. If there is no will, an interested party—often a spouse or adult child—petitions to be administrator.
- Appointment of Personal Representative: The court issues letters testamentary (if there’s a will) or letters of administration (if no will). These letters establish the authority to file a wrongful death lawsuit.
- File the Wrongful Death Claim: Once appointed, the personal representative files the wrongful death complaint under Arkansas Code §16-62-102 (link). The action must be brought within two years of the date of death, per Arkansas Code §16-62-103.
- Distribute Recovery Proceeds: Any settlement or judgment first covers estate debts and administrative expenses. Remaining funds then pass to surviving spouse, children, or other heirs according to Arkansas’s intestacy rules if there’s no valid will.
While you can discuss potential claims with an attorney before opening an estate, you cannot file a wrongful death lawsuit in Arkansas until someone holds the official role of personal representative. Many law firms will prepare and file the probate paperwork alongside the wrongful death complaint to streamline the process.
Helpful Hints
- Gather key documents—death certificate, insurance info, police report—before petitioning the court.
- If you expect a simple estate, ask the court about expedited or small-estate procedures to reduce costs and time.
- Keep track of deadlines: wrongful death claims in Arkansas generally must be filed within two years of the date of death (Ark. Code §16-62-103).
- Consider hiring an attorney who handles both probate and wrongful death suits to avoid duplicate filings and fees.
- Maintain clear communication with potential heirs to prevent disputes over appointment and distribution.