Detailed Answer
Under Oregon law, a wrongful death action after a car accident must be filed by a personal representative on behalf of the decedent’s estate. You cannot pursue the claim in your individual capacity unless you are the appointed representative. The representative holds “letters testamentary” or “letters of administration” issued by the probate court.
1. Personal Representative Requirement
ORS 30.020(1) states that a wrongful death action “shall be commenced by and in the name of the personal representative of the decedent.” A personal representative (PR) acts as the estate’s official agent. If the decedent left a will, the named executor usually becomes PR. If there is no will, an heir must petition the court for letters of administration.
2. Opening a Probate Proceeding
To appoint a PR, you file a probate petition in the county where the decedent lived. The court issues letters testamantary or letters of administration. While this initiates an estate, you generally do not need to fully administer the estate before filing a wrongful death claim. However, the court must have granted you authority.
3. Small Estate and Special Administrator
Oregon offers simplified procedures for small estates valued under $75,000 (ORS 114.505). However, that process typically transfers property, not claims. If no PR is in place, the trial court can appoint a special or temporary administrator under ORS 30.050, allowing you to bring the wrongful death suit without opening a full estate.
4. Statute of Limitations
You generally must file a wrongful death claim within three years of the decedent’s death (ORS 30.020(7)). If the decedent left minor children, Oregon extends this deadline until two years after all children reach 18 or within five years of death, whichever comes first.
Key Takeaway: You must open probate (or secure a special administrator) to obtain the authority to sue. Once appointed, you can file the wrongful death action even if the estate remains pending.
Disclaimer: This article provides general information under Oregon law and does not constitute legal advice. Consult a qualified attorney for advice tailored to your situation.
Helpful Hints
- Gather the death certificate and police report before filing probate papers.
- Check if the decedent left a will to simplify appointment of the executor.
- File your probate petition promptly, so you don’t miss the wrongful death deadline.
- Consider a special administrator if you need faster court approval to sue.
- Keep detailed records of funeral expenses, medical bills and lost income for the claim.
- Consult a personal injury attorney who regularly handles wrongful death cases.