Detailed Answer
Under Montana law, anyone pursuing a wrongful death claim must file the action through a court-appointed personal representative of the decedent’s estate. The wrongful death statutes at MCA § 27-1-501 through § 27-1-505 require that a personal representative bring the suit on behalf of the deceased’s heirs.
To obtain that status, you must open a probate (estate) proceeding in the district court of the county where the decedent resided or where the accident occurred. In probate, the court appoints an executor or administrator—often a surviving spouse, adult child, or other close relative—who gains legal authority to file the wrongful death lawsuit.
Montana offers a simplified procedure for small estates under MCA § 72-3-303 if the estate’s total value falls below certain thresholds. For larger estates, you follow the standard probate process in MCA § 72-3-101 et seq.
Once appointed, the personal representative has a statutory duty to pursue the wrongful death action within the two-year statute of limitations under MCA § 27-1-202. Any recovery passes through the estate and distributes to heirs according to Montana’s intestacy rules (MCA § 72-3-104).
Key Takeaway: Yes, you must open an estate (probate) to secure a personal representative before filing a wrongful death claim in Montana.
Helpful Hints
- Initiate probate quickly to preserve your right to file within the two-year deadline.
- Collect key documents: certified death certificate, any valid will, a list of assets, and creditor information.
- Determine if your situation qualifies for simplified probate under MCA § 72-3-303 to save time and fees.
- Identify potential personal representatives—spouse, adult child, or close relative—to serve in that role.
- Keep detailed records of estate assets and legal filings to support the wrongful death action.
- Consider consulting a probate attorney to navigate estate rules and court procedures.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. You should consult a licensed attorney in Montana for guidance specific to your situation.