If a loved one of yours has died in an accident that was someone else’s fault, you do not need to deal with your loss without getting justice. If you are interested in bringing a wrongful death claim against the party responsible for your loved one’s death, it is important to know whether you are entitled to bring the claim.
Who Can Bring a Wrongful Death Claim?
To bring a wrongful death claim, you need standing. Standing is a legal term that means you have the ability to bring a claim to court. In most personal injury lawsuits, the person with standing is the person that suffered the injury.
However, in wrongful death cases, this is impossible, because the person who would have standing has died.
In this situation, the person with standing to bring the claim is set by state law. The only person that may bring a wrongful death claim in South Carolina is the executor of the deceased’s estate. This means that the damages for the wrongful death claim will be paid to the estate, and then the money will be distributed according to either the deceased’s will or the law.
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Becoming the Executor of My Loved One’s Estate
There are two ways to become the executor of an estate. If your loved one wrote a will, chances are they named an executor in the will. The probate court will honor this whenever possible.
If your loved one did not name an executor in their will, or if they died intestate (without a will), then the executor will have to be appointed by the probate court. The probate court will usually appoint either the deceased’s spouse or an adult child. The only real requirements on who can be an executor of an estate are that the person must be more than 18 years old and of sound mind.
If the deceased’s spouse meets both requirements, they are automatically appointed the executor of the estate. Sometimes, a professional such as an attorney or accountant can be appointed executor of the estate as well. The court case for wrongful death must be brought in the executor’s name, or it cannot be brought at all.
How Long Do I Have to Bring a Wrongful Death Claim?
There is a time limit on the period that you have to file a wrongful death lawsuit. In South Carolina, you must bring your claim for wrongful death within three years of the death of your loved one.
The clock starts at the time of the death of your loved one. Once it starts, you must file your lawsuit within three years, or you will not be able to file it at all.
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The Most Common Types of Wrongful Death Actions
The most common type of wrongful death claims comes from car accidents. This is because everyone drives, but driving can be very unsafe. Also, thousands of car accidents are caused every year by someone’s negligence, giving rise to lawsuits.
The next most common type of wrongful death claim is medical malpractice. This is because doctors’ jobs are very difficult, and small mistakes can mean death. When these accidents happen, however, they are still responsible and should be held accountable.
The next most common type of wrongful death is product liability which arises when a defective product causes someone’s death. These cases most commonly result from defective car parts such as brakes or airbags. In very rare circumstances, a product liability case can be brought from an airplane crash or furniture falling onto people.
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What Is My Burden of Proof in Wrongful Death?
In wrongful death cases, you, as the plaintiff, must show that you are entitled to recover by a burden of proof known as a preponderance of the evidence. This is different than in criminal cases, where guilt must be proved beyond a reasonable doubt. The burden of proof is easier to meet in civil cases.
In a wrongful death case, you must prove only that it is more likely that the other person wrongly caused the death of your loved one than not. In other words, you must make the jury 51% sure. This is a somewhat low standard, and a skilled lawyer can help you get there.
How Are Wrongful Death Awards Paid Out?
In South Carolina, because the wrongful death lawsuit must be brought by the executor of the estate, the award for the lawsuit is paid to the estate. This means that the funds are distributed according to the rules of the will or the rules of state law if there is no will.
This means that the damages that are paid to your loved one’s estate will be distributed to the different beneficiaries of your loved one’s estate. This allows everyone who relied on the deceased to get the money that they need and deserve.
What if I Was Born Out of Wedlock?
While in the past, there were antiquated rules about illegitimate children and their ability to receive part of the money from their parents’ estates. In South Carolina, it makes no difference whether you were born in or out of wedlock. You will be eligible to receive part of the award either way.
Should I Hire an Attorney?
The most important thing that you can do for your case is to hire a highly competent attorney. A skilled lawyer will help you by going through your case with you, negotiating settlements with the other party’s attorney, and advising you on the law. The law surrounding wrongful death claims is very complicated, but attorneys dedicate their entire careers to learning and mastering it.
If you have recently lost a loved one and are interested in bringing a wrongful death case, make sure that you hire a wrongful death attorney to assist you.
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