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No lawsuit can be filed, no settlement signed, and no proceeds distributed until the probate of the estate puts a personal representative in place. That makes the probate court the first stop — and with a two-year deadline running from the date of death, it is a stop that cannot wait.
In short: A wrongful death estate is opened so a claim can be brought for a death caused by another’s wrongful act. In Alabama, only the personal representative of the estate has standing to file that claim — no spouse, child, or parent can bring it on their own — so the probate appointment is the mandatory first step.
The Alabama twist: Wrongful death damages here are punitive — meant to punish the wrongdoer, not tally the family’s losses. And the proceeds bypass the estate entirely: they are not distributed under the will, but under Alabama’s intestacy statutes, no matter what the will says.
The protection: Because the proceeds pass outside the estate, the deceased’s creditors cannot touch them — even if the estate is insolvent. The recovery goes to the heirs, which is also why the proceeds must be kept strictly separate from regular estate assets.
The cost: Phone consultations on probate matters are free; in-person consultations are $100. Probate fees are quoted flat, separate from any wrongful death litigation handled on contingency.
Where This Fits in Alabama Probate
Why the Probate Court Remains Central
Appointing the Personal Representative
The court’s most critical function: creating the one person with standing to file the claim, work with litigation counsel, receive any recovery, and manage its distribution. A will’s named executor typically serves; without a will, the court appoints an administrator by statutory priority. Delay here is delay on the claim itself.
Overseeing the Distribution
Once a recovery arrives, the court ensures the right people receive the right statutory shares and that the representative meets their fiduciary duties — oversight that matters most when heirs disagree, when questions arise about who qualifies as an heir, or when the shares themselves come as a surprise.
Running the Regular Estate Alongside
Most deceased also left a home, accounts, and personal property that go through standard administration — inventoried, exposed to creditors, distributed under the will or intestacy. Two tracks, two rule sets, one representative: keeping them coordinated and the funds strictly separated is where probate counsel earns its keep.
Protecting Minor Heirs
Children are among the most common statutory heirs in these cases, and minors cannot receive or control their own shares. Court approval of the settlement may be required, and a minor’s funds typically go into a court-supervised arrangement until adulthood — extra steps that exist to protect children who lost a parent.
Wrongful death vs. survival claims: if your loved one was injured, survived for a time, and then passed, the estate may hold a survival claim for what they suffered before death — and possibly a wrongful death claim as well. Survival claims follow opposite rules: their proceeds enter the estate, face creditors, and pass under the will. Our estates with injury claims page covers that side, and when both claims exist, we make sure each is handled under its own rules.
How a Wrongful Death Estate Proceeds
The probate track and the litigation track run together — and the two-year clock governs both.
Free Phone Consultation
We assess the situation, check the two-year deadline, identify who should serve as personal representative, and map both the estate work and how it will coordinate with the wrongful death claim. Probate fees are quoted flat.
Open the Estate Promptly
The petition is filed in the county where the deceased resided, with the death certificate, the heirs identified, and the original will if one exists. Nothing else can happen until this does.
Appointment and Letters
The personal representative is appointed and receives Letters Testamentary or Letters of Administration — the exclusive authority to bring the wrongful death claim and administer the estate.
Two Tracks Run Together
Litigation counsel pursues the wrongful death claim while the regular estate is administered — assets inventoried, creditors noticed, valid debts paid. Any recovery is kept strictly separate from estate assets, with court approval obtained where minors are involved.
Distribute Under the Right Rules — and Close
Wrongful death proceeds go to the heirs by the intestacy shares; regular estate assets go out under the will or intestacy after debts are paid. A final accounting closes the estate and releases the representative.
Wrongful Death Estates — Frequently Asked Questions
1.Who can file a wrongful death claim in Alabama?
Only the personal representative of the estate. A grieving spouse, child, or parent — no matter how directly affected — has no standing to file on their own. The appointment comes only through the probate court, which is why opening the estate is always the first move when a wrongful death claim is anticipated.
2.How long do we have?
Generally two years from the date of death. If no personal representative has been appointed and no claim filed by then, the right is permanently lost — however strong the case would have been. Families in grief understandably put legal matters off for months; with a wrongful death claim, that delay can cost everything. Call early, even if you are not ready to decide anything.
3.Why don’t the proceeds follow the will?
Because Alabama treats wrongful death damages as punitive — a recovery for the wrong itself, not property the deceased owned. Since the proceeds were never the deceased’s property, they cannot pass under the deceased’s will. The legislature directed them to the statutory heirs under the intestacy laws instead, and no will provision can override that.
4.Can creditors take part of the recovery?
No. Wrongful death proceeds are exempt from the deceased’s creditors, even if the estate is insolvent — the recovery reaches the heirs intact. The flip side is a strict bookkeeping duty: the representative must keep the proceeds completely separate from regular estate assets, which creditors can reach. Commingling the two creates exactly the kind of accounting mess that ends up in front of a judge.
5.There’s no will and nobody agrees on who should be in charge. Now what?
Alabama sets a priority order for appointment — surviving spouse, then adult children, then parents, then other heirs — and the probate judge decides among those willing to serve. Competing petitions burn time the two-year clock does not give back, so we push families hard to agree on one person early; when agreement is impossible, we present the strongest petition and let the court resolve it quickly.
6.Do we need a probate attorney and a wrongful death attorney?
In most cases, yes — and they need to talk to each other. We handle the probate: opening the estate, obtaining the appointment, administering the regular assets, overseeing the intestacy distribution of the proceeds, and closing the estate. Litigation counsel handles the claim itself, usually on contingency. Both serve the same representative under different rules in different courts, and we coordinate with the litigation side throughout.
The Claim Cannot Wait — and Neither Should the Estate
One free phone call checks the deadline, identifies who should serve, and maps the probate the claim requires — handled with the precision these cases demand and the care your family deserves.
Our Service Includes
✓ Estate opened on the claim’s timeline
✓ Personal representative appointment and Letters
✓ Regular estate administered alongside the claim
✓ Proceeds kept separate and creditor-protected
✓ Court approvals and protections for minor heirs
✓ Intestacy distribution done right, estate closed clean
Call the Office Nearest You
Birmingham — (205) 201-1789
Chelsea — (205) 677-5490
Huntsville — (256) 665-9473
Montgomery — (334) 782-9938
We handle these estates statewide, with local representation available through our Birmingham probate attorneys.
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