Disclaimer: This article is for educational purposes and does not constitute legal advice.
Detailed Answer
Under Massachusetts law, a wrongful death action must be filed by the decedent’s personal representative (executor or administrator). The relevant statute, M.G.L. c. 229, § 2, states that such claims “shall be brought by and in the names of the executor or administrator of the deceased person.”
If an estate has not already been opened in the Probate and Family Court, you generally need to petition the court to appoint an administrator. You do this by filing a Petition for Administration under the Massachusetts Uniform Probate Code (M.G.L. c. 190B, § 2-801). Even if the decedent owned minimal or no assets, the court can appoint an administrator solely to pursue the wrongful death claim. Once appointed, the administrator has authority to gather assets, investigate the car accident, and file the lawsuit on behalf of the estate and beneficiaries.
Failing to appoint an administrator may result in dismissal or delay of your wrongful death claim. In some cases, an estate administration can be opened on a limited basis—called a “nunc pro tunc” or limited administration—if the sole purpose is litigation. Check with the Probate and Family Court clerk for the specific local procedure.
In addition to the wrongful death statute, you may pursue a “survival action” for injuries the decedent sustained before death under M.G.L. c. 214, § 3. A personal representative also brings this claim, which can cover pain and suffering endured by the deceased prior to passing.
Key Statutes
- Wrongful Death: M.G.L. c. 229, § 2
- Administration Appointment: M.G.L. c. 190B, § 2-801
- Survival Actions: M.G.L. c. 214, § 3
- Statute of Limitations: M.G.L. c. 260, § 2A (3 years from date of death)
Helpful Hints
- File early: The wrongful death statute of limitations is three years from the date of death. A delay in opening an estate can eat into this timeframe.
- Priority for administrator: Massachusetts prioritizes spouses, then children, then parents or next of kin (M.G.L. c. 190B, § 2-801).
- Limited administration: If you only need to pursue litigation, ask the court about limited or provisional administration to minimize estate formalities.
- Gather documents: Prepare the death certificate, accident report, and proof of family relationships to support your petition.
- Consider costs: Probate fees and a surety bond may be required to secure an administrator’s duties. Check current fee schedules on the Probate Court website.
- Survival vs. wrongful death: Track damages separately—survival claims cover pre-death suffering; wrongful death claims cover loss to beneficiaries.