Detailed Answer
Under Kansas law, only the decedent’s personal representative may file a wrongful death suit. The Kansas Wrongful Death Act (K.S.A. 60-1901) states that “when the death of a person is caused by the wrongful act, neglect or default of another,” a cause of action arises in favor of the decedent’s personal representative. That means you generally must open an estate (probate) or otherwise secure an appointment as personal representative before pursuing a wrongful death claim after a car accident.
To open an estate, an interested party—often a surviving spouse or adult child—files a petition in the district court of the county where the decedent resided. The court issues letters testamentary (if there’s a will) or letters of administration (if not). This process formally appoints someone to act on behalf of the estate, including bringing claims for wrongful death.
Once appointed, the personal representative can file a wrongful death action under the Kansas Wrongful Death Act, K.S.A. 60-1901. The suit must be filed within two years of the decedent’s death per K.S.A. 60-513(a)(4). Without a personal representative, the court will dismiss the case for lack of standing.
In limited cases where the estate holds no assets, the court may allow a no-asset administration under the Kansas Probate Code. Even then, the court still appoints a personal representative to represent the estate’s interests. Always check local rules or consult a qualified probate attorney to determine the best route.
Key Statutes
- K.S.A. 60-1901 (Wrongful Death Act)
- K.S.A. 60-513(a)(4) (Two-Year Statute of Limitations)
- K.S.A. 59-301 (Opening an Estate; Appointment of Personal Representative)
Helpful Hints
- Start probate early. Delays in appointing a personal representative can jeopardize your wrongful death deadline.
- Gather key documents: death certificate, will (if any), and list of next of kin.
- Confirm who qualifies as a personal representative under K.S.A. 59-301: typically a surviving spouse or child.
- If the estate holds no assets, ask the court about a no-asset administration to streamline the process.
- Track the two-year statute of limitations carefully. Late filings are almost always barred.
- Consult a probate attorney if the estate is complex—multiple heirs or real property can complicate appointment.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.