Speaking for the Dead: Who Can Pursue a Wrongful Death Lawsuit in Virginia

When someone dies, their loved ones are often left overwhelmed. Decisions need to be made. Paperwork needs to be filled out. Funeral and burial arrangements need to be planned. Steps need to be taken to protect the deceased individual’s assets. Of equal importance – especially in cases where the death was caused by another’s negligence – considerations need to be made to protect the interests of the decedent’s statutory beneficiaries. Statutory beneficiaries are the individuals that may have the right to recover damages [CDM1] for their loved one’s wrongful death.

The first question that needs to be determined is this “Who will represent the decedent, the estate, and the decedent’s statutory beneficiaries?” This individual will be the decedent’s voice throughout any litigation related to their death, and they must work to protect the interests of the decedent’s other beneficiaries and loved ones.

Virginia requires that any wrongful death action “be brought by and in the name of the personal representative of [a] deceased person.”[1] Who this “personal representative” should be, how they qualify, and the authority they have when they do qualify are all deeply complicated issues. The answers to each of these questions can be found in the Code of Virginia, but they are often concealed beneath layers of interlocking statutes and complicated legal jargon. Further, there are numerous traps that make it difficult for individuals to figure this process out on their own. For these reasons, it is always advisable to consult with an experienced wrongful death attorney in Virginia as soon as possible after a loved one dies.

It is possible that the decision has already been made for you. If the deceased individual died with a valid will may include within in it a named “executor” of the estate. This executor can simply qualify as the decedent’s personal representative by making an appointment with the Circuit Court Clerk’s office in the appropriate jurisdiction, taking an oath, and complying with the various administrative requirements the clerk imposes.[2]

If the decedent left a will but it fails to name an executor, or the named executor is unable or unwilling to serve in the role, “the court or clerk may grant administration with the will annexed to [another individual] . . . .”[3] Here there is the additional complication that only certain types of individuals can qualify during certain periods of time after the decedent’s death. In the first thirty days any “person who is a residual or substantial legatee under the will, or his designee” may qualify.[4] If no such person qualifies within thirty days after the death, any “person who would have been entitled to administration if there had been no will,” may qualify.[5]

If a person dies without a will (or no one qualifies as an administrator of the estate within thirty days after the death) the Code of Virginia provides an intricate timeline for when different types of individuals can qualify. During the first thirty days after the death, administration may be granted to any “sole distributee, or his designee, or in the absence of a sole distributee, to any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributes.”[6]

After 30 days have passed, “the court or the clerk may grant administration to the first distributee, or his designee, who applies,” unless more than one distributee declares an intent to apply as administrator. If that occurs, the court or clerk must give each distributee who declared an intent to apply the chance to be heard on the issue.[7]

After 45 days have passed, certain nonprofit entities can be appointed as administrators if they meet certain notice and administrative requirements.[8] Finally, after 60 days, the clerk “may grant administration to one or more of the creditors or to any other person,” provided that they meet certain notice and administrative requirements.[9] Additionally, there is a catch all provision in the Code that allows the clerk to deviate from the provisions of this section if it determines that it is in “the best interests of a decedent’s estate.”[10]

The above provisions grant the appointed personal representative general authority to represent the estate. This means that they can do other necessary things to close out the decedent’s estate in addition to prosecuting a wrongful death action. This is often necessary if the deceased has assets or debts that need distribution or resolution.

There is an additional way that an individual can qualify as the personal representative of a decedent’s estate, however, when there is no need for the administrator to have general authority over the estate. The Code of Virginia allows an individual to qualify “solely for the purpose of prosecution or defense of any [personal injury or wrongful death] actions,” “if at least 60 days have elapsed since the decedent’s death and an executor or administrator of the estate has not been appointed under § 64.2-500 or 64.2-502 . . . .”[11] As the Code suggests, this grant of administration is much more limited than those discussed above. Their only power is to prosecute or defend a personal injury or wrongful death action.

When dealing with the death of a loved one, the last thing you should have to think about is who to qualify as personal representative and how to qualify them. Further, there are traps waiting for the unwary individuals that navigate this process alone. Instead, if you believe that your loved ones death was caused by the improper actions of another, you should consult with an experienced wrongful death attorney as soon as possible. Your loved one needs a voice, and your attorney can help you identify the right person to serve in that important role.

[1] Va. Code § 8.01-50(C).
[2] Id. at § 64.2-501.
[3] Id. at § 64.2-500(A).
[4] Id.
[5] Id.
[6] Id. § 64.2-502(A)(1).
[7] Id. at § 64.2-502(A)(2).
[8] Id. at § 64.2-502(A)(3).
[9] Id. at § 64.2-502(A)(4).
[10] Id. at § 64.2-502(B).
[11] Id. at § 64.2-454.
[CDM1] Cross reference Dec. 2023

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