The death of a loved one is the most difficult experience a person can face in life. When the death is the result of an accident or the negligence of another, it makes your tragedy even more difficult to endure. Unfortunately, the law allows a limited time to seek compensation for your loss. Understandably, most families are still in the process of grieving during this time. However, handling these matters yourself can have serious repercussions that no lawyer can undo. That is why it is important to have expert legal representation to ensure your family's rights are protected while you tend to what is most important.
At Ryan LLP, our attorneys have handled numerous wrongful death cases. Wrongful death cases have special procedures that need to be followed that are more complicated that the usual personal injury case. Due to the complexity of wrongful death actions, it is absolutely necessary you consult with an attorney that has handled wrongful death cases to ensure the claim is filed within the applicable statute of limitations, and the appropriate procedures are followed. This complexity is demonstrated in this wrongful death and survival infographic.
A wrongful death claim is a suit which may be brought against an individual or a corporation which may be responsible for the person's death. Wrongful death claims are filed in the Court of Common Pleas, but are supervised and administerd by the Probate Court. While the actual suit for wrongful death must be brought in the General Division of the Court of Common Pleas, the process for controlling the litigation and resolving it by settlement or a jury verdict is conditioned upon the approval of the Probate Court. (Ohio Revised Code Section 2125; Sup. R. 70). In addition to wrongful death claims, the decedent may also have other claims known as survival claims. These claims are filed under Ohio Revised Code Section 2305.21.
A suit for wrongful death must be initiated by the executor or administrator appointed by the Probate Court. A wrongful death claim exists for the exclusive benefit of the decedent's next of kin. The surviving spouse, children and parents of the decedent are presumed to have suffered a loss by virtue of the decedent's death. This is different than Survival claims, where are considered assets of the estate. If an individual has a will that grants their entire estate to a single entity (for example, a college), the money received through the wrongful death claim is not affected; money received through the survival claims are distributed pursuant to the terms of the will. (i.e. all money from survival claim would be granted to the college listed in the decedent's will).
Usually, a wrongful death claim may is based upon negligence, such as medical negligence leading to the decedent's death. However, it may result from something as simple as a traffic accident. Whether the suit for wrongful death is resolved by a jury verdict or a settlement, both must be presented to the Probate Court for its review, consideration and approval. The jury may decide how to allocate the verdict to the decedent's heirs, but it remains subject to review by the Probate Court. The Probate Court makes these adjustments without regard to the decedent's last will and testament.
The Probate Court is responsible for approving the wrongful death settlement in its gross sum. Once that is done, the Court is responsible for considering deductions to be made from that sum for the award of attorney's fees, its approval of reasonable and necessary litigation expenses and other costs, such as whether or not a fee should be awarded to the fiduciary for pursuing that claim. Once all of these deductions are allowed, the Court must then consider how the net distribution should be apportioned between the next of kin and claimants.
Anytime a minor is one of the next of kin claimants, the Court may appoint a guardian ad litem to represent the minor's interest. This may be important in larger settlements or verdicts where the minor stands on an equal footing with one of his parents who may be the surviving spouse. Additionally and in dealing with minor settlements, the Court is free to impose a wrongful death trust for the benefit of any minor under the age of 25. That is a trust created by the Court as Superior Guardian for all minors and under which the minor's share may be restricted in a trust for his future benefit.
As you can see, the process is tedious and specific. It is imperitive to hire an attorney that has experience dealing with wrongful death litigation. If you are looking for a firm that can represent your wrongful death claim, call Ryan LLP to discuss this case with a knowledgeable attorney.