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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney about your situation.

Detailed Answer

Under West Virginia law, a wrongful death claim arising from a car accident can only proceed through the deceased person’s estate. West Virginia Code §55-7-6 (https://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chap=55&art=7&section=6) states that the personal representative of the decedent’s estate must bring the action. If no estate exists, you must open probate to appoint a personal representative. Without that appointment, a court will dismiss a wrongful death suit for lack of standing.

What West Virginia Law Requires

• Eligibility: Only the personal representative may file under W. Va. Code §55-7-6.
• Damages Distribution: Courts split proceeds between survivors and the estate.
• Statute of Limitations: You have two years from the date of death to file a suit (W. Va. Code §55-2-12).

Opening an Estate in West Virginia

To open probate, file a petition in the circuit court of the county where the decedent lived. West Virginia’s general probate code is found at W. Va. Code §44-1-1 (https://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chap=44&art=1). The court will issue letters of administration or appointment of executor. After appointment, the personal representative gains authority to sue.

Small Estate Procedures

If the decedent’s assets total $50,000 or less, you might qualify for summary administration under W. Va. Code §44-1A-1 (https://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chap=44&art=1A). This process is faster and less costly. However, even with summary administration, you still obtain formal authority to act as personal representative.

Key Deadlines

• Wrongful Death Claim: 2-year limit from death (W. Va. Code §55-2-12).
• Probate Filing: ASAP after death. Delays can complicate evidence gathering.

Helpful Hints

• Gather Documents Early: Obtain the death certificate, insurance policies, and accident reports.
• Consult Probate Court Clerk: They can guide you through filing forms and fees.
• Consider Small Estate Options: If assets are low, summary administration saves time and money.
• Preserve Evidence: Photographs, witness statements, and medical records support your claim.
• Track Deadlines: Missing the two-year statute of limitations bars your claim.
• Seek Legal Counsel: An attorney experienced in wrongful death can help you navigate probate and litigation.