Probate for wrongful-death and settlement matters

A Florida wrongful-death action can be brought only by the decedent’s court-appointed personal representative (§ 768.20). If no estate is open, one has to be opened before the claim can be filed or settled. Probate counsel handles the appointment, the estate’s notices and deadlines, any court approvals the settlement needs, and distribution of the estate’s share; trial counsel handles the claim. Starting the probate early avoids a settlement waiting on letters.

Why probate is needed

Standing. The personal representative brings the wrongful-death action for the benefit of both the survivors and the estate (§ 768.20). Without letters of administration, no one has authority to sue, sign a release, or receive the estate’s share.
Two kinds of recovery. Survivors (the spouse, children, parents, and certain dependents defined in § 768.18) recover their own damages, while the estate recovers items such as lost earnings, net accumulations, and medical or funeral expenses it paid (§ 768.21). Section 768.21(7) makes the estate’s awards subject to creditors’ claims; it says nothing similar about the survivors’ awards.
Survival claims are different. If the injury caused the death, the personal-injury claim does not survive; it is replaced by the wrongful-death claim (§ 768.20). If the person died of something else, an existing injury claim survives (§ 46.021) and becomes an asset of the estate.
Time. A wrongful-death action generally must be brought within two years (§ 95.11(5)(e)), with exceptions, including no limit for certain intentional killings (§ 95.11(11)). Medical-negligence claims have their own rules. Appointment takes time, so do not wait until the limitations date is near.

Intake checklist for referring counsel

Send what you have; probate counsel can work from partial information and fill gaps.

Decedent’s full legal name, date and place of death, and the county and state of their residence at death
Certified death certificate, or the date one is expected
Any will, codicil, or trust, and who has the original will
Marital status, and the names, ages, addresses, and relationships of the spouse, children (noting any under 25, the Act’s definition of minor children), parents, and any dependents (§ 768.18)
The proposed personal representative, their state of residence, and how they are related to the decedent (§ 733.304 limits nonresidents)
A short description of the claim: type, defendants, insurers and known policy limits, and whether suit is filed (court and case number)
Key dates: limitations date, demand and response deadlines, mediation or trial settings
Known liens and payers: Medicare, Medicaid, health insurers, hospitals, workers’ compensation
Medical and funeral bills, and who paid them (§ 768.21(5))
Other estate assets and known debts, which affect whether a broader administration is needed
Whether any probate case is already open, in Florida or elsewhere
Your contact details, and who will be the personal representative’s contact for the litigation

How the two matters are coordinated: five steps

Intake and early review. Probate counsel confirms the county (§ 733.101), who has preference to serve (§ 733.301), whether that person qualifies (§ 733.303, § 733.304), and who the survivors are. Any conflict between family members over who should serve is identified now, because it can delay appointment.
Open the estate and obtain letters. A petition for administration is filed (§ 733.202), any required bond is posted (§ 733.402), and letters are issued. The personal representative serves the notice of administration and, unless claims are already barred, publishes and serves the notice to creditors (§ 733.212, § 733.2121). Ask early whether the court in that county limits the letters or requires that settlement proceeds be held until it approves a distribution.
Engage litigation counsel and pursue the claim. The personal representative may employ attorneys and prosecute or settle claims (§ 733.612(19), (20), (24)). Probate counsel provides certified letters, keeps the estate in good standing, and keeps trial counsel informed of creditor deadlines, family changes, and anything that affects who the survivors are. If Medicaid paid for care, the agency has an automatic lien and must be notified within 30 days after suit is filed (§ 409.910(6), (11)).
Approve and allocate the settlement. While an action is pending, a settlement that a survivor objects to, or that affects a minor or incapacitated survivor, needs court approval (§ 768.25). Allocation between the survivors and the estate needs care, because the estate’s share is subject to creditors’ claims (§ 768.21(7)). A minor’s net share over $15,000 requires a guardianship of the property (§ 744.387), and a guardian ad litem is required when the gross settlement involving a minor is $50,000 or more, unless an existing guardian has no adverse interest (§ 744.3025; Fla. Prob. R. 5.636). Attorney fees and litigation expenses are deducted in proportion to each award (§ 768.26). Liens are confirmed and resolved; Medicaid must be paid within 60 days after proceeds are received (§ 409.910(17)).
Distribute and close. Survivors receive their approved shares. The estate’s share is administered like any other estate asset: claims paid in priority, then distribution. A minor’s funds go to the guardianship or other court-approved arrangement. The personal representative files a final accounting and petition for discharge (Fla. Prob. R. 5.400) and is discharged.

Common problems that delay settlements

Waiting to open the estate until a settlement is reached
A proposed personal representative who lives outside Florida and is not a qualifying relative
An unidentified survivor, such as a child from another relationship, discovered late
An allocation that is not tied to the damages each survivor and the estate can actually claim
Liens identified only after the release is signed
A minor’s share that needs a guardianship nobody planned for

An example

A Volusia County woman dies after a collision. Her husband and their two children, ages 12 and 19, survive her; she had no will. Trial counsel calls probate counsel the week after the funeral. Her husband has preference as surviving spouse and is appointed, and letters issue before suit is filed. Suit is filed, and the case settles at mediation. Because a survivor is a minor, the settlement needs court approval. The court approves the allocation, appoints a guardian ad litem for the 12-year-old because the gross settlement is more than $50,000, and requires a guardianship of the property for that child’s net share. The estate’s smaller share pays her final medical bills, and the estate is closed.

Related guidance

Sources: Florida Statutes § 46.021, § 95.11, § 409.910, § 733.101, § 733.202, § 733.212, § 733.2121, § 733.301, § 733.303, § 733.304, § 733.402, § 733.612, § 744.387, § 744.3025, § 768.18, § 768.20, § 768.21, § 768.25, and § 768.26 (2026); Florida Probate Rules 5.400 and 5.636 (October 15, 2026 edition). Checked against these sources on October 23, 2026.