A family in Brooklyn receives the worst possible news. A loved one has died during an encounter with law enforcement, and in the shadow of that grief, a question forms: Who has the legal authority to seek justice? Many families assume the answer is simple. The law, however, grounds the authority to act in the decedent’s estate.
In my practice, I have seen families grapple with the dual burdens of personal loss and legal procedure. They want accountability, but they discover that individual family members—even a spouse or a child—cannot file a wrongful death lawsuit on their own behalf. The right to bring that claim belongs to the decedent’s estate, and the person who acts for the estate must be formally appointed by the court.
The Estate’s Role in a Wrongful Death Claim
When a person’s death is caused by the wrongful act, neglect, or default of another, New York law gives the deceased person’s estate a right of action. This is a critical distinction. The lawsuit is not brought by the family; it is brought by the “personal representative” of the estate on behalf of the family members who have suffered a loss.
This personal representative is a fiduciary—someone legally and ethically bound to act in the best interests of the estate and its beneficiaries. Their first job is to be formally granted the authority to act. This authority, called Letters Testamentary (if there is a will) or Letters of Administration (if there is no will), is issued by the Surrogate’s Court in the county where the deceased person lived.
Without this court order, no one can legally hire a personal injury attorney, file a lawsuit, or negotiate a settlement related to the wrongful death. The entire process hinges on first properly opening the estate. This is not a mere formality—it is the legal foundation upon which any claim for justice is built.
Surrogate’s Court and the Power to Act
The path to appointing a personal representative is deliberate. If your loved one left a valid will, the person named as the executor petitions the Surrogate’s Court to have the will admitted to probate. If there is no will, a close relative, such as a spouse or adult child, can petition to be appointed as the administrator of the estate.
This process ensures that one person is given the clear, undisputed authority to marshal the decedent’s assets, pay their final debts, and pursue any legal claims. The legal basis for this is found in New York’s Estates, Powers and Trusts Law. Specifically, EPTL § 5-4.1 grants the duly appointed personal representative the right to maintain an action to recover damages for a wrongful act that caused the decedent’s death.
Once appointed, this representative has the standing to retain counsel and pursue the claim. They are the client. They make the decisions. And they are ultimately accountable to the court and the beneficiaries for their actions.
Stewardship of the Proceeds
Should the wrongful death claim result in a settlement or a court award, those funds are not paid out to the family directly. They become an asset of the estate, and their distribution is strictly governed by the court. The court must approve the settlement, and the proceeds are allocated among the decedent’s surviving family members based on the financial losses they each suffered.
The personal representative’s fiduciary duty extends to the prudent management and distribution of these funds. It is an act of stewardship. For beneficiaries who are minors, the funds may need to be placed in a guardianship account or a trust, subject to court oversight until they reach adulthood. A well-drafted estate plan could have anticipated such a contingency, perhaps by creating a trust in the will to hold and manage any assets for a young child.
This is where civil justice and estate planning intersect. The pursuit of accountability is one part of the equation; the responsible management of the outcome is the other. It is about ensuring that any financial recovery serves the long-term well-being of the family and honors the legacy of the person they lost.
If your family must administer an estate involving a potential wrongful death claim, the first step is establishing who has the legal authority to act. You can schedule a consultation with our firm to review the decedent’s documents—or lack thereof—and we can outline the process for petitioning the Surrogate’s Court.
