Which family member needs to file a wrongful death lawsuit?

Asked over 5 years ago - Silvis, IL

My brother was killed by a drunk driver last month. As a family, we would like to file some kind of wrongful death lawsuit, but aren't sure how to go about it. He was not married, had no will, and has 4 minor children. His ex wife wants to file the suit but so does my father. They both have only the children in mind, so does it matters who files? Or does one take precedence over the other? (My brotehr was 34 years old.)

Attorney answers (3)

  1. Alan James Brinkmeier

    Contributor Level 20

    1

    Lawyer agrees

    1

    Answered . I am sorry for your loss. The minor children need to be protected here. In Illinois the statute is very specific

    quote
    Every such action shall be brought by and in the names of the personal representatives of such deceased person
    unquote

    Because he was not married at the time of his death consider the statute language

    quote
    the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person
    unquote

    The kids are next of kin and certainly must be protected.


    Alan James Brinkmeier

  2. Michael W. Clancy

    Contributor Level 10

    1

    Lawyer agrees

    1

    Answered . As I'm guessing you've gathered from the others, what happens is that someone has to be chosen by the court to be the representative. Being the representative in a wrongful death suit like this really just means that you sign certain documents which are necessary to move the case along. Settlements in wrongful death cases require court approval in Illinois, so no matter what the representative thinks any resolution of the case or distribution of the proceeds needs to be approved by a judge. The important thing is for the family to find an experienced, competent lawyer to handle the case. Once you find that person, he or she will get the family together, explain the process, and show everyone how they'll be involved and informed.

    I'm sorry for your loss. Pick a really good lawyer and the rest will work itself out. Best of luck.

    Michael Clancy
    www.clancylaw.com

  3. Bruce H Murray

    Contributor Level 11

    1

    Lawyer agrees

    1

    Answered . Only the administrator or executor of his estate can file suit

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