The short answer to whether you should set up an estate before filing a wrongful death claim in Arkansas is an emphatic yes. While setting up an estate is not specifically required prior to filing an estate, failing to do so will prohibit you from seeking certain benefits.
In Arkansas, wrongful death claims are granted statutory authority, codified at Ark. Code Ann. § 16-62-102. Subpart (b) of that statute states that every wrongful death action shall be brought in the name of the personal representative of the deceased person. It goes on to say that “if there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.”
So…this seems to say that it’s not necessary to set up an estate to file a wrongful death claim, right? That you can simply name all the heirs as Plaintiffs and file it that way, correct? Well, yes, that is permissible. However, as a matter of Arkansas law, damages in a survival action can only be maintained the executor or administrator of a decedent’s estate.
So while it’s permissible to file suit in the name of the individual heirs of a deceased person, a survival action cannot be maintained without setting up an estate and naming a personal representative of the estate.
Survival damages in Arkansas include (1) a decedent’s medical expenses, (2) a decedent’s pain and suffering, (3) a decedent’s mental anguish, (4) a decedent’s loss of past earnings, (5) a decedent’s physical disabilities, (6) a decedent’s loss of enjoyment of life, and (7) a decedent’s loss of life.
As you can see, damages in a survival action are extremely valuable, and you lose those damages if you do not file suit in the name of a decedent’s estate. Yes, you can still maintain a wrongful death claim and seek some damages without opening an estate, but you lose the valuable claim of a survival action without doing so. In a time crunch prior to the statute of limitations? It’s still possible to set up a special administrator quickly for the purpose of filing suit on behalf of the estate.
For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in wrongful death cases for years.