The Probate Side of Ohio Wrongful Death Claims

The work involved in pursuing a wrongful death claim often begins in probate court prior to a complaint ever being filed. Although a wrongful death claim primarily focuses on liability and damages, the probate court ultimately determines who has the authority to act, how quickly key medical records are obtained, and how the recovery to a wrongful death claim is ultimately distributed.

For personal injury attorneys, understanding the probate timeline in a wrongful death claim can help reduce delays and improve efficiency from intake through resolution, whether by settlement or jury verdict.

Obtaining Medical Records before Opening the Estate

One of the earliest probate-related issues in an Ohio wrongful death claim often arises before an estate is even opened – obtaining medical records. In wrongful death claims involving medical malpractice, counsel will require medical records as soon as possible in order to evaluate liability, causation, and potential damages before deciding whether counsel should proceed with a wrongful death claim.

Ohio law provides an important tool for this situation. Under Ohio Revised Code § 2113.032, any person who would be eligible to serve as administrator of an estate, or who is named as executor in a valid will, may apply directly to the probate court for authority to obtain a decedent’s medical records without first opening an estate.

For personal injury attorneys, this statute can significantly streamline the determination as to whether there are viable claims to pursue. Rather than immediately incurring the expense and delay associated with opening an estate and obtaining the appointment of an administrator or executor, counsel may first secure the medical records necessary to determine whether a viable claim exists.

This procedure is particularly useful because healthcare providers are often reluctant to release medical records after death absent probate authority, even where all of the decedent’s family members are fully cooperating. By obtaining an entry authorizing the release of medical records, counsel can avoid many of the HIPAA-related delays that commonly arise during pre-suit investigation.

Opening the Estate and Appointing an Administrator or Executor

Once counsel determines that there are viable claims to pursue, the next step is to open the estate and secure appointment of an administrator or executor for the estate. Under Ohio Revised Code § 2125.02(A), a wrongful death claim must be brought by the administrator or executor of the decedent’s estate for the benefit of the statutory beneficiaries.

Although surviving family members are often surprised by this requirement, no one is able to file a wrongful death lawsuit individually absent appointment through the probate court. The administrator or executor becomes the legally authorized individual to retain counsel on behalf of the estate and ultimately execute settlement documents.

The process for appointment depends largely on whether the decedent died with a valid will (testate) or without a valid will (intestate).

Where the decedent died testate, the probate court will generally appoint the executor named in the will, so long as that individual is willing and able to serve. Although Ohio residency can affect eligibility, Ohio law allows for a nonresident executor who is related to the decedent to serve.

If the decedent died intestate, the court instead appoints an administrator. Ohio Revised Code § 2113.06 establishes the priority of individuals entitled to serve, beginning with the surviving spouse, followed by next of kin who are Ohio residents. As opposed to the appointment of an executor, an administrator generally cannot be appointed if they are not a resident of Ohio, regardless of the relation to the decedent.

For personal injury attorneys, understanding the distinction between the appointment of an executor and an administrator is important as attempting to appoint someone who is not eligible to serve in such role can delay litigation before it even begins. In blended family situations or cases involving estranged relatives, competing applications for appointment may occur and can signal broader disputes that may resurface later when allocating proceeds among the beneficiaries.

Wrongful Death and Survival Claim Classification

As the litigation progresses, one of the more important concepts becomes the distinction between a wrongful death claim and a survival claim. Although these claims are frequently brought together in the same lawsuit, they are treated differently in a probate administration.

Wrongful death claims compensate the statutory beneficiaries named under Ohio Revised Code § 2105.02 for their own loss resulting from the death. As such, the proceeds from a wrongful death claim are typically not subject to creditors of the estate.

Survival claims, by contrast, preserve causes of action that belonged to the decedent prior to death. The proceeds from a survival claim are assets of the probate estate and are distributed pursuant to the dispositive provisions of the decedent’s valid will, or if there is not will then pursuant to the statute of descent and distribution under Ohio Revised Code § 2105.06.

Probate Court Approval

Even after a settlement or jury verdict is reached, probate court involvement continues. Ohio probate courts maintain jurisdiction over the approval and distribution of proceeds from a wrongful death action.

The approval process in most Ohio counties starts with the filing of an application for approval of the settlement. The initial filings will typically include a narrative statement summarizing the facts and procedural history of the case, identification of the statutory beneficiaries, application for the approval of attorney fees, application for the approval of reimbursement of expenses advanced for the claim, proposal of the allocation of the proceed between the wrongful death claim and the survival claim, and a proposal of the allocation of the net proceeds among the beneficiaries. The court will schedule a hearing upon receiving the application, which counsel and the executor or administrator is required to attend. Counsel will briefly take testimony in support of the application from the executor or administrator at the hearing.

Conclusion

While probate issues in wrongful death actions are often handled behind the scenes, they are too important to be treated as an afterthought. An incorrect understanding of the procedural requirements related to medical records access, the appointment of an executor or administrator, claim classification, and settlement approval can significantly delay the distribution of proceeds to the surviving family.

For this reason, it is often highly beneficial for personal injury attorneys to involve or retain counsel who regularly handles probate matters. An attorney experienced in probate administration can help navigate Ohio’s statutory requirements and prevent avoidable delays in settlement approval and distribution.

In many cases, this coordination between personal injury and probate counsel is what allows a wrongful death claim to move from investigation through resolution without procedural setbacks that can otherwise slow recovery for surviving family members.