A Local 3 ironworker falls from a scaffold on a job site in Brooklyn. He survives for two weeks before succumbing to his injuries. In that moment, his family faces immense grief and a complex legal reality: his personal injury claim has become a wrongful death action. The right to pursue it no longer belongs to him—it belongs to his estate.
As an estate attorney, I’ve seen this devastating scenario play out many times. The family’s focus is on mourning, but the law requires a swift and deliberate response. The person named as executor in the will, or the administrator appointed by the court, is now a fiduciary. Their role is not just to gather assets and pay debts, but to act as a steward for the family’s future. This includes the profound responsibility of holding the negligent party accountable.
The Claim Belongs to the Estate, Not the Family
A common misconception is that the surviving spouse or children can directly file a lawsuit. In New York, that right is granted specifically to the estate’s “personal representative”—the executor or administrator. This is established under Estates, Powers and Trusts Law (EPTL) § 5-4.1. This legal distinction is critical. The representative isn’t acting on their own emotional behalf; they are acting with a fiduciary duty to all the beneficiaries of the estate.
This duty requires prudence and diligence. The choice of a personal injury attorney to handle the wrongful death litigation is one of the most significant decisions an executor will make. It’s not about finding the lawyer with the splashiest television commercial. It’s about retaining a litigator with a deep and verifiable track record in wrongful death cases, which are substantially different from a standard slip-and-fall.
Every step, from filing the suit to accepting a settlement, is overseen by the Surrogate’s Court. The attorney you choose must be prepared for that level of scrutiny.
Evaluating Counsel: Beyond the Basics
When an executor interviews a potential trial attorney for the estate, the questions should go far beyond “Have you handled cases like this before?” The conversation needs to be more specific.
First, does the attorney understand the two distinct claims that must be brought? There is the wrongful death action itself, which seeks to recover the financial losses suffered by the decedent’s surviving family members. This can include loss of support, services, and inheritance. Then there is the “survival action,” which seeks damages for the conscious pain and suffering the decedent endured from the moment of injury until their death. An experienced attorney knows how to build and prove both claims, as they involve different types of evidence and legal arguments.
Second, does the attorney have a clear process for communicating with you as the executor? The estate’s personal representative is the client, and you must be kept informed. You are the one who will ultimately approve major decisions, and you cannot fulfill your fiduciary duty without clear, consistent information.
Finally, you are hiring a team, not just a single lawyer. A serious wrongful death case requires investigators, medical experts, and economists. As executor, you have the right to ask about the team the law firm will assemble and their qualifications. Your duty is to maximize the recovery for the estate, and that requires investing in the right resources.
The Role of the Estate Attorney
Our firm does not litigate personal injury cases. We are estate and trust attorneys. Our role in a tragedy like this is foundational. We guide the family through the Surrogate’s Court to have an executor or administrator formally appointed. Without those official “Letters” from the court, no lawsuit can be filed.
We work with the personal representative to identify and vet potential wrongful death litigators, ensuring the choice serves the estate’s best interests. We then collaborate with the chosen trial counsel, handling the estate administration matters that run parallel to the lawsuit—managing assets, dealing with creditors, and ensuring the estate remains in good standing. When a settlement or verdict is reached, we handle the court proceedings required to have it approved and properly distributed to the beneficiaries according to law.
Stewardship. In the end, that is what this is about. An executor is entrusted with the final chapter of a person’s life. When that life is cut short by negligence, fulfilling that trust means pursuing justice with intention and care.
If you are the executor or proposed administrator for an estate involving a potential wrongful death claim, your first legal step is securing the authority to act. We can advise you on petitioning the New York Surrogate’s Court to be formally appointed, which is the necessary prerequisite to engaging a litigator and seeking accountability.
