My ex-husband died intestate in Alabama. We have a 5 year-old and a 3 year-old together. My ex's mom and sister are trying to file a wrongful death suit against the doctor that treated my ex-husband. I would also like to sue the doc on behalf of the kids. Do we have to set up an executor/probate in order to sue, or can the kids do it without an executor?
My ex's sister and mom have not given me my ex's things, which my children should inherit, so there is some bad blood and I want to make sure that if there is a wrongful death lawsuit, that my children are the beneficiaries. If there is going to be an executor of the estate, can I be appointed? How can I make sure that my ex's mom and sister don't take all of the things that my children should inherit?
If your ex-'s mother and sister are taking things that should rightfully go to your children, I strongly suggest that you begin a probate proceeding. Technically, your children should be the personal representatives of the estate. Obviously, they are too young to do so, so you would need to make sure that you are petitioning to be the personal representative in your role as their guardian. You might need to be named as their "guardian ad litem" for this (loosely translated, their guardian for the purpose of representing their interests in litigation).
I recommend that you see a competent local probate lawyer (or estate planning lawyer - most estate planning lawyers also handle probate matters)immediately. lists probate lawyers in Birmingham. Most likely some of them offer free initial consultations.
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I agree that you should consult a probate attorney in Alabama right away, particularly one who also deals in medical malpractice cases. There may be a statute of limitations on bringing a suit which started with the time of the death of the decedent. You wouldn't want that time period to expire.
Every state is different, so you should consult with a local attorney in Alabama, but in general, to have standing in bringing Wrongful Death Action you must be the spouse, or child or parent of the decedent. Here in California, you can also sue for wrongful death if you can properly allege and show that the decedent provided support to you. So generally Wrongful Death actions are statutory actions (based on a certain law adopted in your state), Those laws will generally spell out who can bring a Wrongful Death action, and there is no need to open an estate. If the Wrongful death is connected to nursing home abuse or neglect however, that's another story. In those situations, at least here in California, its a good idea to open an estate to carry the survivorship claims.
