Disclaimer: This article provides general legal information and does not constitute legal advice. Always consult a qualified attorney for advice about your specific situation.
Detailed Answer
In Delaware, only a decedent’s personal representative may file a wrongful death lawsuit following a fatal car accident. Under 10 Del. C. § 3721, the executor named in a will or an administrator appointed by the Register of Wills holds the right to sue. You cannot pursue a wrongful death claim in your individual capacity unless you serve as that court-appointed representative. (10 Del. C. § 3721).
To obtain that authority, you typically must open the decedent’s estate in the county where the person lived at death:
- File a petition for probate of the will or, if there is no will, for letters of administration with the local Register of Wills.
- The court issues letters testamentary (if a will exists) or letters of administration (if intestate), officially naming you as personal representative.
Once appointed, you can file the wrongful death claim on behalf of the estate. The lawsuit seeks damages for the family’s loss and any financial losses the decedent would have suffered. Under Delaware’s statute of limitations, you must bring the action within two years of the date of death. (10 Del. C. § 3731).
Small Estate Exception: If the decedent’s assets total less than $50,000, Delaware’s small estate procedures can simplify the process. You may use an affidavit process under 12 Del. C. § 3911 instead of full probate to gain authority as personal representative. (12 Del. C. § 3911).
Helpful Hints
- Begin estate proceedings promptly to secure your right to sue before the two-year deadline.
- Gather key documents—death certificate, will (if any), and asset records—before filing.
- Contact the Register of Wills in the county where the deceased lived for forms and filing fees.
- Consider the small estate affidavit if assets are minimal to reduce paperwork and court costs.
- After appointment, you must manage estate administration duties, including notifying creditors and distributing any damages recovered per Delaware law.
- Consult a Delaware attorney experienced in wrongful death to guide you through estate and litigation steps.