When a loved one dies from a wrongful or negligent act of another, knowing where to begin the legal process can be difficult. When you bring a wrongful death case in Minnesota, there are a few things that you should know.
First, there are strict time limits on how long you have to initiate the claim. The statute of limitations on a wrongful death case in Minnesota is generally three years from the date of death. Keep in mind, however, that there are a few limited exceptions to this rule that may apply to your case. Therefore, the sooner a client can consult with an attorney, the better off he or she will be.
Second, Minnesota has very important rules pertaining to wrongful death cases that other states do not have. Under Minnesota General Rules of Practice it is required that a trustee be appointed for the case. A wrongful death case cannot be filed in court until a trustee has been appointed. Both clients and attorneys should keep in mind that the trustee appointment process can take up to a couple of months, depending on how responsive the decedent’s family is. If the statute of limitations is running soon, this process should be started immediately.
A trustee is not the same as the executor of an estate, and just because an estate is open does not mean that a trustee automatically exists. Rather, the trustee is a person who is appointed by the court to serve as the principal plaintiff for the deceased person’s heirs. Although the Minnesota General Rules of Practice require that a trustee be a “next of kin,” generally any competent person may serve as the trustee.
In order to appoint a trustee, all heirs must sign off on the appointment. Therefore, attorneys should take the following steps in appointing a trustee:
(A) The attorney should speak with the person who initially contacted him or her about bringing the claim. Generally, the proactive person who wanted to initiate the lawsuit can become your trustee. If that person does not want to serve as the trustee, find a different family member who can. The trustee does not need to be an heir, though this person frequently is.
(B) Once you have selected your trustee, that person should provide you with the (i) the full legal names of all living heirs; (i) the addresses and phone numbers for each heir; and (iii) the date of birth for each heir. You will also need a copy of the death certificate, as you will need to provide the court with the dates and places of the decedent’s birth and death.
(C) A letter as well as a Waiver and Notice of Bond then needs to be sent to the trustee and each of the heirs. When our firm does this, we take time in the letter to explain to the heirs why we are contacting them and what exactly we are asking them to sign. We also offer to speak to anyone who has questions on the paperwork. This is a very common place to run into issues. You may find that very often, there are members of the family who are no longer in contact with the rest of the family or who are particularly difficult to deal with.
I once had heirs located in a remote town in Mexico, where there were no telephones or individual mailboxes. The man who was going to be the trustee in this case told me that he knew a guy who drove a truck into this town once a month. Fortunately for me, the guy with the truck was willing to track down the family for me on his next visit, and he delivered the documents (which I translated into Spanish), got them signed, and returned them to me.
Sometimes, however, even your extraordinary efforts will not be enough, and heirs simply cannot be located. Under these circumstances, you should obtain a signed affidavit from the trustee, indicating that you were unable to locate the missing parties, and you should detail the efforts you undertook to do so.
(D) Once you have all of the signed paperwork back from your trustee and the relevant heirs, you can then e-file the petition to appoint the trustee with the court. If the court has any issues with your petition, then you may be required to attend a hearing.
(E) Once the court grants the trustee petition, only then can the Summons and Complaint be filed.
A word of caution: under Minnesota law, ALL heirs technically have a claim to any money obtained in a judgment or settlement. Following settlement or a verdict, this often requires a meeting or conference call with the heirs to discuss who gets what. The court ultimately has jurisdiction over this issue when the parties cannot agree. All parties should be advised that it is not the attorney’s job to decide which heirs get certain sums of money, though the attorney may make a recommendation.
Still have questions? Make sure to speak with an attorney right away.