When a person dies, and leaves behind anything that is worth money, the law creates an “estate.” If John Doe dies, then it will be called “The Estate of John Doe.” For example, you may sometimes see “Estate Sales,” where the possessions of someone who has passed away are being sold. What has happened, legally, is that the person died, an “estate” was created, the “estate” now owns all of the possessions, and the person in charge of the estate decided to sell the items.
An estate is a purely legal creation. Don’t think of it as something real; think of it as just a word that the law uses to describe everything the deceased has left behind. “Estate” simply means everything of monetary value that belonged to the person. If a person was wronged in a way that could give rise to a lawsuit, then that lawsuit has value, and so it belongs to the “estate.”
Because the person who was wronged is no longer alive, that person cannot bring a lawsuit. Their Estate, however, is legally allowed to collect any money that is owed to the person who has passed away, including money that may be “owed” due to a wrongful death lawsuit. A person who represents the estate may bring the lawsuit. The person who represents the Estate is called the personal representative of the estate. “Personal representative” is often abbreviated as “P.R.”
The personal representative has to be approved by a judge. Usually, all of the beneficiaries will agree upon one of them to be the personal representative. There is a specific order that the law states is the preferred way to choose a P.R.
Here is the order:
1. Executor named in a will
2. Spouse or nominee of the spouse
3.Next of kin or nominee of next of kin
In reality, the surviving family members often agree on who would be the best P.R., ideally with the advice of their lawyers. And if they all agree, the judge will usually accept that person and appoint him or her as the personal representative. The best P.R. for the family will be the person who has the time, attention, and ability to work with the wrongful death attorney throughout the case. This person should also be trusted by all the beneficiaries to make decisions that will be good for everyone.
If the beneficiaries cannot agree, then they can all make their arguments to the judge about who each of them thinks should be the personal representative, and then the judge will make a decision. In that case, the order given in ORS 113.085 will matter a lot, but it is not the only consideration; it just states a preference. If there is no spouse, and the judge is deciding which “next of kin” would be best, preference is usually (but not always) given to the decedent’s child. If that child is a minor (and therefore cannot be P.R.), then preference will be given to that child’s parent or guardian. Alternatively, one person can simply petition the court to be appointed P.R., and then wait for anyone who disagrees to make their objections to the court. Normally, the other potential/aspiring personal representatives have four months to file a formal objection with the court. This is the most contentious way, as it would require that official notice be given to other possible P.R. candidates, and should be avoided if possible. But if there is one person who objects and won’t discuss it outside of court, it can sometimes be the only way to proceed.
The personal representative is the person who is in charge of the sorts of decision-making that a client does in a lawsuit. The most important decision is whether to accept a settlement offer. That decision must be approved by a judge, but approval is usually given, so this is a very important power.
The personal representative is also responsible for much of the paperwork that goes along with a lawsuit. If a family member who has been left behind by the death is too grief-stricken to be an efficient administrator, it may make sense to hire a professional to take over the administrative tasks as much as possible.
The personal representative is required by law to act “reasonably for the benefit of interested persons.” So legally, if an interested person believes that a personal representative is not doing this, they can bring this to the judge’s attention. Practically speaking, however, a personal representative has a lot of leeway. The term “reasonable” does not stretch forever, but it does stretch pretty far. There are a wide variety of actions a person can take and still be “reasonable.”
If you do end up being the personal representative, your duties would include:
For more on wrongful death laws and related civil cases, see our section on wrongful death lawsuits.