Darren Findling of The Probate Pro discusses the intersection between wrongful death and probate in Michigan.

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Wrongful death and probate. Hi I'm Darren Findling of The Probate Pro. When somebody dies tragically from an accident or negligence you there is an intersection between Michigan's wrongful death statute and the probate statutes so how do you determine how do you navigate through these statutes well the statute also determines how notice is provided when a lawsuit is going to be filed who is in entitled to receive the notice of the filing of the lawsuit and the statute dictates how the distribution will occur by either a jury uh verdict or if it's a settlement how do you address the distribution of the wrongful death proceeds now remember in Michigan a personal representative is the only person that has the legal standing the authority to commence and advance and file a cause of action related to the death of an individual so probate is required a personal representative needs to be appointed by filing either an application or petition for probate to appoint somebody to have the legal standing to serve in that role to then Advance the matter on behalf of the heirs and devisees and all the wrongful death claimants in some states other family members have the legal authority to have uh the filing Authority but not in Michigan only the personal representative so the letters of authority are the golden ticket to give you the authority to move forward once the matter is moving forward then if a lawsuit is going to be filed the statute dictates who is entitled to be notified so that they can present their damages their losses that they've experienced as a result of the death of the individual now here is kind of a a basic understanding of how you determine whether the wrongful death act applies or the probate statutes apply and whether the funds from distribution will occur through the wrongful death act or through the probate State and that is whether there was conscious pain and suffering so for example if a person died and they experienced conscious pain and suffering from the accident the negligence then they the person that died are the parties that were damaged and those monies will flow pursuant to the probate estate now there may be a will and there may be no will so determining um how it's going to flow will be dependent on whether it's testate with a will or in testate no will but what happens if the death occurred and there was no conscious pain and suffering it was so instantaneous that the person didn't have time to experience conscious pain and suffering well the statute the Michigan wrongful death statute contemplates that then the injured party is no longer the person but the family and it defines who the wrongful death claimants are in the statute so again you can have a blur of two you can experience conscious pain and suffering and die and have an allocation go to both wrongful death claims and the people identified either in the will or intestacy but there's a delineation of where that money is going to go in addition it's important to understand that when you're making this determination you may need um reports and evidence to support whether the the person experience conscious pain and suffering because if a jury is going to make this decision they're going to have to allocate it if there's no jury and it's it's a judge or it's through a settlement generally it's proposed how the money is going to. Now many attorneys wrongfully just say let it all go wrongful death I call it the wrongful wrongful death Theory they just always assume send it wrongful death and it's misguided you don't always want to do that because first ethically it may be incorrect and then secondly it can have a massive effect on where the money is