Frequently Asked Questions About Opening an Estate for a Wrongful Death Claim in Alabama
Wrongful Death Starts with Probate — Here's What Families Need to Know
When a loved one dies because of someone else’s negligence or wrongdoing, the idea of a wrongful death lawsuit may feel overwhelming — or even confusing. At our firm, we often hear from grieving families who want justice but don’t know where to begin. The truth is, in Alabama, you cannot file a wrongful death lawsuit until you open an estate.This FAQ page is designed to help you understand how wrongful death and probate are connected under Alabama law — and why the first call after a tragic loss should be to a probate attorney.
What is a wrongful death claim?
A wrongful death claim is a civil lawsuit filed when someone dies as a result of another person or entity’s negligence, carelessness, recklessness, or intentional act. These cases arise from a wide range of circumstances — car accidents, medical malpractice, nursing home abuse, workplace injuries, and more. In Alabama, the purpose of a wrongful death claim is not to compensate the surviving family members directly (as in other states). Instead, Alabama law treats wrongful death claims as a way to punish the wrongdoer and deter similar conduct in the future. Because of that, the money awarded is not considered compensation for loss — it is punitive in nature, and the damages go directly to the heirs, not into the estate itself.
Why do I have to open an estate first?
Under Alabama Code § 6-5-410, only the personal representative of the deceased’s estate has the legal authority to bring a wrongful death lawsuit. That means that even if you're the surviving spouse, child, or parent, you cannot file the lawsuit yourself unless you have been officially appointed by the probate court. Until an estate is opened and a personal representative is appointed, no one has standing to sue — even if the case is strong and the wrongful act is clear. Opening the estate is the first and legally required step to begin seeking justice.
What does it mean to “open an estate”?
Opening an estate is the legal process of going through probate court to obtain a court order appointing someone — usually a close family member — as the personal representative of the deceased person. This person then has the authority to act on behalf of the estate, including hiring attorneys and pursuing legal claims like wrongful death.
The process typically involves:
This is not the same as a full probate administration involving creditors and distribution of assets. We often open the estate for the sole purpose of bringing a wrongful death lawsuit.
The process typically involves:
- Filing a petition with the probate court
- Notifying next of kin and potential heirs
- Possibly posting a bond (though this is often waived)
- Receiving formal appointment by the court
This is not the same as a full probate administration involving creditors and distribution of assets. We often open the estate for the sole purpose of bringing a wrongful death lawsuit.
What if there’s no will?
No problem. In Alabama, if a person dies without a will (called “intestate”), the probate court can still appoint a personal representative — usually a surviving spouse, adult child, or parent. We regularly handle these types of estates and guide families through the process. A will can help, but it's not required.
How long do I have to file a wrongful death claim in Alabama?
In general, Alabama’s statute of limitations for wrongful death cases is two years from the date of death. However, there are important exceptions:
That’s why it’s critical to act quickly. We recommend contacting a probate attorney as soon as you suspect a wrongful death claim may exist.
- If a government entity is involved, such as a city, county, or state agency, the deadline to provide written notice may be as short as six months.
- If you wait too long to open the estate, you risk running out the clock before a lawsuit can even be filed.
That’s why it’s critical to act quickly. We recommend contacting a probate attorney as soon as you suspect a wrongful death claim may exist.
Who receives the money in a wrongful death lawsuit?
This is one of the most misunderstood areas of Alabama law. Here’s what makes Alabama different:
The law follows Alabama’s intestate succession rules, so the heirs are typically:
This makes opening the estate especially important for ensuring the proper heirs are identified and legally protected.
- Although the lawsuit is filed by the estate, the proceeds do not go into the estate.
- Instead, damages are distributed directly to the heirs at law, bypassing creditors entirely.
- The money is not subject to the deceased’s debts.
The law follows Alabama’s intestate succession rules, so the heirs are typically:
- Spouse and children (if both are surviving)
- If no children, the spouse and parents
- If no spouse, then to children
- If none of the above, to siblings, and so on
This makes opening the estate especially important for ensuring the proper heirs are identified and legally protected.
What if a lawsuit has already been filed — but the estate hasn’t been opened?
That’s a red flag.
Under Alabama law, a wrongful death case cannot proceed unless the plaintiff is a properly appointed personal representative. If someone files a lawsuit without first opening an estate, the case may be subject to dismissal — even if it’s otherwise valid. If this happens, we can help:
Our firm is often brought in mid-case to fix these probate-related issues so the personal injury attorneys can continue their work without risking the case.
Under Alabama law, a wrongful death case cannot proceed unless the plaintiff is a properly appointed personal representative. If someone files a lawsuit without first opening an estate, the case may be subject to dismissal — even if it’s otherwise valid. If this happens, we can help:
- Determine if the personal representative has been lawfully appointed
- Correct or amend the legal filings
- Re-open the estate if necessary
Our firm is often brought in mid-case to fix these probate-related issues so the personal injury attorneys can continue their work without risking the case.
Can a family member other than the spouse or child serve as personal representative?
Yes. In Alabama, if the deceased didn’t leave a will or name an executor, the court has discretion to appoint a suitable person. While close relatives like spouses and children are usually preferred, we’ve helped siblings, parents, and even trusted family friends get appointed when the situation calls for it.
The key is that the personal representative must be someone trustworthy, competent, and willing to take on the responsibility of overseeing the claim — with our help.
The key is that the personal representative must be someone trustworthy, competent, and willing to take on the responsibility of overseeing the claim — with our help.
What does the personal representative actually do in a wrongful death case?
The personal representative’s role in this context is largely legal and administrative. Their responsibilities typically include:
We guide the representative every step of the way and keep things as stress-free as possible.
- Working with our probate firm to open the estate
- Signing the engagement letter with the personal injury attorney
- Participating in case updates or depositions if needed
- Approving a settlement (which often requires probate court approval)
- Helping ensure the money is distributed to the rightful heirs
We guide the representative every step of the way and keep things as stress-free as possible.
What types of incidents qualify as wrongful death cases in Alabama?
Wrongful death claims can arise from a wide variety of circumstances. Some of the most common include:
If you’re unsure whether your loved one’s death qualifies, we offer free consultations to
review the facts and discuss your legal options.
- Motor vehicle accidents — including car, truck, motorcycle, and pedestrian deaths
- Medical malpractice — including surgical errors, misdiagnosis, or neglect
- Nursing home abuse or neglect
- Workplace or construction accidents
- Defective products or dangerous drugs
- Criminal acts — including assault, murder, or negligent security
If you’re unsure whether your loved one’s death qualifies, we offer free consultations to
review the facts and discuss your legal options.
How long does it take to open an estate in Alabama?
In straightforward cases, we can typically get a personal representative appointed within 2-3 weeks of filing the paperwork in the probate court. However, if there are complications — such as a contested will or multiple competing family members — it could take longer.
Does it cost anything to open the estate for a wrongful death case?
In most cases, we handle the estate at no upfront cost to the family in wrongful death lawsuit cases. Our probate firm partners with top personal injury lawyers, and we’re usually paid out of the recovery if the case is successful. There are often minimal court filing fees (usually under $300), but we advance those in many cases. We’ll explain all of this clearly during your free consultation.
Will I have to go to court?
Probably not. In most wrongful death estate cases, the personal representative never has to step foot in the courtroom. We handle all filings, communications, and probate procedures for you.
How do I start the process?
The first step is simple: contact our firm for a free consultation. We’ll gather some basic information about your loved one, assess whether a wrongful death claim may exist, and begin preparing the probate filings needed to open the estate. Even if you’re not sure a case qualifies, it’s better to ask early than wait and risk losing your right to file.
Let Our Probate Firm Be Your First Call
Too many families lose time — and even legal rights — by contacting a personal injury attorney first, only to learn they need to open an estate before anything can be done. That’s why we say: “Wrongful death starts with probate.” Let us help you take that first step. We will:- Open the estate in probate court
- Handle all necessary paperwork and court filings
- Connect you with skilled wrongful death attorneys
- Ensure that your family’s rights are protected from start to finish
Whether you just lost someone or have already started down the path of a wrongful death case, we can help you get things back on track — legally, efficiently, and compassionately. Call us now or fill out the form below to schedule your free consultation. You can’t sue for wrongful death in Alabama until an estate is opened. Let us help you open the door to justice.
