Mother doesn't want to file wrongful death lawsuit for my brother who passed away. Can a sibling file?

Asked almost 2 years ago - San Diego, CA

My mother, who is next of kin, does not want to file a wrongful death lawsuit. She doesn't have a close relationship with my brother and has not spoken to him for several years. Can a sibling file? Would I need to petition this in court?

Attorney answers (7)

  1. William Peter Daley

    Contributor Level 17

    11

    Lawyers agree

    Answered . Yes you can file you are considered an heir. Also, FYI California law provides for “just” compensation for the pecuniary loss from the death which broadly includes the present value of future contributions from decedent to his surviving heirs, the value of personal services, advice or training decedent would have given his dependents and the value of the decedent’s society and companionship.

    In California, juries are instructed that they can award the heirs the following damages:

    Loss of future financial support
    Loss of prospective inheritence
    Loss of the love, companionship, comfort, affection, society, solace, moral support, and (if a spouse is a claimant) consortium of the decedent
    Loss of a parent’s care, training and guidance
    Loss of household services the decedent would have provided in the future, if any
    Mental anguish of survivors
    Damages for funeral expenses

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    I will be happy to speak with you at no cost with a FREE phone consultation if you have a San Diego or California... more
  2. Robert Bruce Kopelson

    Contributor Level 20

    9

    Lawyers agree

    Answered . Talk to a local wrongful death atty. The estate doesnt have to be opened or sue. The heirs with standing can file a claim. Mom and any other heirs will have to join in as pltfs, or they will be named in case as nominal defendants.

  3. Kevin Coluccio

    Contributor Level 20

    8

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . You would need to be appointed as the Personal Representative of the Estate. Talk with an attorney.

  4. Benjamin Joseph Sansone

    Contributor Level 10

    7

    Lawyers agree

    Answered . yes after the spouse the next of kin are in line to file a wrongful death case so if your mother does not want to pursue it sounds like you're ready to go

  5. Christian K. Lassen II

    Pro

    Contributor Level 20

    7

    Lawyers agree

    Answered . Yes, become personal representative of estate.

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  6. James Otto Heiting

    Pro

    Contributor Level 15

    5

    Lawyers agree

    Answered . State statutes determine who can file and the procedures. With the likelihood of a positive answer, and with some issues brought up by the mother not wanting to file, you should consult with an experienced wrongful death attorney in the area where the claim arises immediately. Do not delay. Time limits alone can defeat a claim, and investigation should be undertaken as soon as possible.

    Best regards,
    James Heiting

  7. Richard Andrew Harting

    Pro

    Contributor Level 18

    2

    Lawyers agree

    Answered . Yes you can proceed and you do not need to petition the court to file as an heir in a wrongful death lawsuit. If you want to pursue on behalf of your brother's estate then you will need to be designated as the successor in interest. This is a complicated area of law and is very different from your average personal injury matter. You should absolutely consult with and retain an attorney experienced in wrongful death. Our offices handles this matter and is available to you for a no cost consultation. 800-809-8848

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