As discussed in prior posts, if you have lost a loved one and believe that it was the result of someone’s negligent or wrongful conduct, you may be able to bring a claim for wrongful death. A wrongful death claim is brought for the benefit of the deceased person’s estate, and their next of kin.

Who Has the Right to Bring a Wrongful Death Claim?

Under Massachusetts law, a wrongful death claim can only be brought by the Estate of a deceased person. And in order for the Estate to bring a claim, an individual must be appointed by a Court as the Estate’s Personal Representative. The process of becoming a Personal Representative is a function of Massachusetts probate law and is colloquially known as “probating an estate.”

What Does it Mean to Probate an Estate?

Probate is the legal process of transferring property and ownership of an estate after someone has passed away. In Massachusetts, there are three types of probate: formal probate, informal probate, and late and limited formal probate. Massachusetts also has a simplified probate process called voluntary administration. Each form of probate has a unique process for filing, with varying forms and documents required for someone to be appointed personal representative. Your attorney can aid you in navigating which probate process is best for the Estate in question and for any wrongful death claim and can help you to follow all necessary steps of the filing.Who Can be Appointed as Personal Representative of an Estate?

In Massachusetts, there are two scenarios for the process of becoming the personal representative of a decedent’s estate, both of which depend on the execution of a will:

  • If the decedent died with a will: The person with legal authority is the person named in the will to serve as personal representative or executor.
  • If the decedent died without a will: A judge will appoint someone to the role of personal representative, who will typically but not always be a surviving spouse or child of the decedent. A personal representative can, in fact, be any person the next of kin wishes to be appointed, so long as the court finds them suitable to act as a personal representative.

How Does Being a Personal Representative Relate to Claims for Personal Injury or Wrongful Death?

In Massachusetts, personal representatives are the only people with the legal right to file claims for wrongful death in court. According to Mass. General Laws c.190B § 3-703, the personal representative of a decedent who was living in Massachusetts at the time of their death has the same standing to pursue a claim in a Massachusetts court as the decedent had immediately prior to their death.

Personal Representatives, usually with the assistance of their lawyers, are able to act on behalf of their decedent’s estate to obtain documents, records, and any other important information to help bring a successful claim. The personal representative acts, in a sense, as if they were the decedent, and can bring any legal action that the decedent could bring, including claims for personal injuries suffered while the decedent was living, and claims relating to their wrongful death. Even though the personal representative is the person with the legal power, or standing, to bring a wrongful death claim, it is important to keep in mind that it is generally the Estate itself and the next of kin who have the right to any moneys collected.

If you have lost a loved one due to another’s negligent or harmful conduct, filing a lawsuit can help you to hold the negligent party liable for their conduct. SUGARMAN’s attorneys have decades of experience handling wrongful death cases to achieve the best outcomes for our clients. To learn more, please contact one of our partners by calling (617) 542-1000 or emailing us at .