Disclaimer: This article is for informational purposes only and does not constitute legal advice. For guidance on your specific situation, consult a licensed attorney.
Detailed Answer
Under Wisconsin law, a wrongful death action must be brought by the personal representative of the deceased’s estate. Wis. Stat. § 895.04 grants the cause of action to the decedent’s representative. That means someone must serve in that role before starting or continuing a lawsuit.
To become a personal representative, you typically open a probate estate in the county where the decedent lived. You file a petition for administration under Wis. Stat. § 859.01. If the decedent left a valid will, the named executor can apply. If there is no will, heirs can ask the court to appoint an administrator.
In limited cases, you may obtain letters of independent administration under Wis. Stat. § 859.13 without full probate. If the estate’s personal property (excluding real estate) is under $50,000, you could use a small estate affidavit under Wis. Stat. § 857.02. However, a wrongful death claim is intangible property. Courts often require formal appointment of a personal representative before the case proceeds.
You can file a wrongful death lawsuit before completing probate, but you must amend your pleadings to add the representative once appointed. The statute of limitations for wrongful death in Wisconsin is two years from the date of death. See Wis. Stat. § 893.54. Missing that deadline can bar your claim.
Helpful Hints
- Start probate promptly to secure letters of administration.
- Check if independent administration applies to your case.
- File within the two-year wrongful death deadline.
- Gather evidence—police reports, medical records, and witness statements—while it’s fresh.
- Consult a probate or wrongful death attorney to guide you through complex rules.