After a Wrongful Death, Does Our Family Need a Separate Probate Attorney?

After a wrongful death in Florida, two legal processes must run at the same time. One opens the estate in probate court and appoints a personal representative. The other pursues the wrongful death civil claim against the at-fault party. Only the court-appointed personal representative, not any individual family member, can file the wrongful death lawsuit under Florida law. Families often ask, “If so, do all five of us (myself and my siblings) sue, or can I sue on behalf of all of us?” The answer is neither. A lawsuit filed by an unappointed family member can be dismissed. In Miami-Dade County, probate matters generally go through the Probate Division of the Eleventh Judicial Circuit, while the civil claim moves separately, often in the circuit court’s civil division.

What are the two separate legal jobs that have to happen after a wrongful death?

Florida law draws a clear line: you cannot start the wrongful death lawsuit until the probate estate is open and a personal representative holds Letters of Administration. The probate track is about getting legal authority. The civil track is about proving fault and collecting damages for surviving family members. They serve different purposes and cannot replace each other.

Many families mistakenly believe any close relative can file suit right away. That is not true. Under Fla. Stat. § 768.20, only the personal representative has standing to bring the case. Without that appointment, there is no valid plaintiff. This requirement exists even if your father died without a will or if multiple family members want to act together. The confusion is understandable, but filing too soon or without proper authority puts the entire case at risk.

Who handles each track, and can one attorney do both?

Formal probate administration in Florida requires a Florida-licensed attorney to represent the personal representative. This is not optional; it is required by Florida Probate Rule 5.030. The personal injury firm handling the wrongful death claim may also have probate experience, but many work with a separate probate attorney who focuses only on estate appointments and administration.

Who can serve as personal representative matters too. Under Fla. Stat. § 733.304, a nonresident may still qualify if they are a spouse, child, sibling, or related by direct lineage. For Hialeah families with relatives abroad, this rule offers flexibility, but practical issues like time zones, travel, and court appearances can complicate things. The court decides who is best suited to serve. Because of these variables, many injury firms bring in a probate attorney early, especially when minors or out-of-state relatives are involved.

How is the probate attorney usually paid, and will our family owe fees before the case ends?

The wrongful death attorney works on contingency: no recovery, no fee. The probate attorney’s fees are handled differently. Often, the injury firm advances the cost of opening the estate as a litigation expense, to be repaid from any recovery, depending on the fee agreement.

This is a common arrangement, but it is not automatic. Families should confirm in writing how probate costs will be handled during the initial consultation with both attorneys. In many cases, families do not need to pay probate fees out of pocket before resolution. Still, fee structures vary, so ask directly: “Will we owe anything before the case is over?”

How do both tracks come together at settlement, and what happens when a child or incapacitated survivor is involved?

No settlement can be finalized without the personal representative signing the release, and they cannot sign until they hold Letters of Administration. That means the personal representative must be appointed and in place before the civil case can close.

Once a settlement is reached, the survivors’ share does not go into the estate for general distribution, although certain items, such as medical or funeral expenses paid by the estate, belong to the estate. Instead, it flows directly to statutory survivors under Fla. Stat. § 768.21: the spouse, children, parents, or dependent blood relatives, based on proven losses, not equal shares. If any survivor is a minor or legally incapacitated, Fla. Stat. § 744.387 requires probate court approval of their portion. This adds a step but protects vulnerable family members. The court reviews whether the amount is fair before releasing funds.

What if our loved one died without a will, does that change who controls the case?

Dying without a will does not stop a wrongful death claim. It just means the court must appoint a personal representative using Florida’s priority rules, which generally favor the surviving spouse, then heirs such as adult children, then other relatives. The absence of a will does not mean “no estate.” It means the estate must be created now.

Families often say, “Dad would not have died if not for the car accident. So, I would like to sue for wrongful death.” That intent is valid, but the law still requires formal appointment first. The two-year deadline under [Fla. Stat. § 95.11(4)(d)] keeps running during this process, so delay risks losing the right to sue entirely. For Hialeah families with relatives overseas, early legal guidance helps determine who can realistically serve and avoid unnecessary delays.

Side-by-side: probate track vs. wrongful death civil track

Item	Probate Track	Wrongful Death Civil Track
Purpose	Appoint personal representative and administer the estate	Recover damages for statutory survivors and the estate
Where filed	Probate Division, Eleventh Judicial Circuit (Miami-Dade County)	Civil Division of the circuit court
Who leads the legal work	Florida-licensed probate attorney (required by Florida Probate Rule 5.030)	Wrongful death personal injury attorney on contingency
How attorney is typically paid	Estate funds or advanced as a litigation expense by the PI firm, repaid from recovery (verify with your attorneys)	Contingency fee, no recovery, no fee
Key output	Letters of Administration granting legal authority	Damages allocated under Fla. Stat. § 768.21, with court approval if minor or incapacitated survivor involved under Fla. Stat. § 744.387

The personal representative must be in place, and any required court approvals obtained, before the family receives settlement money, which is why coordination between probate counsel and the wrongful death attorney from day one matters.

Frequently asked questions

Can my brothers and sisters and I all file the wrongful death lawsuit together, or does only one person file?
Only the court-appointed personal representative can file the lawsuit. Individual family members, even acting together, do not have legal standing to sue on their own. The personal representative acts for all statutory survivors.

How long do we have to file a wrongful death lawsuit in Florida, and does probate slow us down?
The deadline is generally two years from the date of death under Fla. Stat. § 95.11(4)(d). Probate does take time, but the clock does not pause. Starting the probate process immediately is essential to meet the deadline.

What happens to the settlement money, does it go into the estate or straight to the family?
The money goes directly to statutory survivors as defined by Fla. Stat. § 768.21, not into the estate for general debts or unrelated claims. Each eligible survivor’s share reflects their specific relationship and losses.

Our family is in Hialeah and some close relatives live outside the United States, can someone abroad serve as personal representative?
Yes, under Fla. Stat. § 733.304, a nonresident who is a close relative, such as a child, sibling, or parent, may serve. However, practical challenges like court appearances and document signing may affect whether it makes sense in your situation.

Is the probate attorney a separate cost on top of the wrongful death attorney’s contingency fee?
Often not out of pocket. Many injury firms advance probate costs as part of the case expenses, to be repaid from any recovery, depending on the fee agreement. Confirm this arrangement in writing with both attorneys before proceeding.

Hurt in an accident in Hialeah? Call Wolfson & Leon at 305-965-3766 for a free consultation. We speak Spanish, and there is no fee unless we win.