Do I need to file a probate to bring a claim when a loved one dies?
One of the most common questions families ask after losing a loved one to another person’s negligence or wrongdoing is whether they need to go through probate to pursue compensation from the tortfeasor. The answer depends on which type of claim you’re bringing. In Texas, fatal accident cases often involve two separate legal claims — a wrongful death claim and a survival action — the latter requires an estate; the former does not.
Wrongful Death Claims Generally Don’t Require an Estate
A wrongful death claim belongs to the surviving family, not to their loved one’s estate. Under the Texas Wrongful Death Act, certain beneficiaries are entitled to seek compensation for their own losses — things like loss of companionship, loss of financial support, and mental anguish.
Only certain people can bring this claim as wrongful death beneficiaries:
- The surviving spouse
- Surviving children
- Surviving parents
Any one of them, or all of them together, can file the wrongful death lawsuit directly, in their own names, without opening an estate or being appointed as an administrator.
Why Can’t Other Relatives Bring a Claim?
Under common law, if a person died, his personal injury claim died with him. Courts viewed it as a personal property right that did not transfer to heirs. Individual states decided not to allow wrongdoers to go unrewarded by their victims dying, so they passed wrongful death statutes. The right is created entirely by statute and given to a specific set of relatives. While some states allow siblings to bring a claim as beneficiaries, Texas does not.
Survival Actions Almost Always Require an Estate
A survival action is different. It’s a claim that belonged to the deceased person themselves —essentially the personal injury case they could have brought if they had survived. It seeks compensation for what happened between the injury and death: medical bills, lost wages, pain and suffering, and similar damages. So, for example, if the person suffered for many hours before passing, this would be a survival claim.
Because this claim is treated as an asset of the deceased person’s estate, Texas law generally requires that it be brought by:
- The executor named in a valid will, or
- A court-appointed administrator, if there is no will.
This means that before you can file a survival action (or properly collect and distribute settlement funds tied to it), the estate typically must be opened through probate and the court must formally appoint a personal representative.
So When Is Opening an Estate Actually Necessary?
You will most likely need to open an estate if any of the following apply:
- The case includes a survival action. If your loved one suffered injuries and incurred medical expenses, lost wages, or endured pain and suffering before passing away — even briefly — a survival action may be available, and pursuing it requires an appointed representative of the estate.
- No eligible family member has filed within three months of the death. Texas law gives the surviving spouse, children, and parents a three-month window to bring the wrongful death claim themselves. If none of them file within that window, the personal representative of the estate becomes authorized to bring the wrongful death claim on the family’s behalf — which again requires the estate to be opened.
- Other estate assets or debts may need to be resolved. Even apart from the lawsuit, families often need an administrator to manage the deceased person’s property, pay valid debts, or distribute assets under a will or Texas’s intestacy laws.
- A settlement or verdict needs to be properly distributed. Insurance carriers and courts often require confirmation that a qualified representative is in place before releasing settlement funds tied to a survival claim, to ensure the money is distributed to the correct heirs and creditors.
When You May Not Need to Open an Estate
If your case involves only a wrongful death claim — for example, if your loved one passed away instantly and left no separate personal injury damages, and an eligible family member is filing within the three-month window — you may be able to move forward without going through probate. Every case is different, and many fatal accident cases involve overlapping claims, so an attorney should make this determination.
Additionally, bringing a survival claim requires bringing in an attorney familiar with probate law. These attorneys typically charge by the hour, and they must complete a full probate of the estate and provide a proper accounting to the heirs and the court. They cannot simply act to pursue the wrongful death claim, so you will pay them to do the full probate job.
Legal Reasons Why This Distinction Matters
Missing this step can slow down or jeopardize a case. Defense attorneys and insurance companies routinely scrutinize who has legal authority to bring a claim, and a survival action filed without a properly appointed representative can face standing challenges. Opening an estate early — even a simple, uncontested probate — helps ensure:
- The right person has legal authority to pursue all available claims
- Settlement funds can be properly and timely distributed
- Deadlines under the Texas wrongful death and survival statutes aren’t missed
- Family members aren’t blindsided by probate requirements mid-litigation.
Talk to an Attorney Before You Wait
Because wrongful death and survival actions run on strict timelines, and because determining whether probate is required depends on the specific facts of your loved one’s case, it’s important to speak with an experienced Houston wrongful death lawyer as soon as possible. We can help you determine:
- Whether your case involves a survival action, a wrongful death claim, or both
- Whether an estate needs to be opened, and who should serve as administrator
- What deadlines apply to your situation
- How to protect your family’s right to full compensation
Call Simmons and Fletcher, P.C. to discuss your case now: (713) 932-0777.
FAQ's
Can a wrongful death claim and a survival action be filed at the same time?
Yes, and in Texas, they often are. When someone dies from injuries caused by another party’s negligence, the family may have both claims available simultaneously — the wrongful death claim compensating the surviving spouse, children, or parents for their own losses, and the survival action compensating for what the deceased endured (medical bills, lost wages, pain and suffering) before passing. Because one requires an estate and the other typically doesn’t, an attorney usually coordinates both filings together.
What happens if my family member died with a will naming someone other than a spouse or child as executor?
The named executor would be the proper person to pursue the survival action once the will is probated, since that claim belongs to the estate. However, the wrongful death claim is separate — it belongs directly to the surviving spouse, children, or parents by statute, regardless of who the will names as executor. So the executor and the wrongful death beneficiaries could be different people pursuing different claims.
How long do I have to open an estate for a survival action in Texas?
While there’s no universal statutory deadline to open probate, the underlying survival action is subject to Texas’s general two-year statute of limitations for personal injury claims, which runs from the date of injury (not necessarily the date of death). Since obtaining a court-appointed administrator takes time, families should begin the probate process well before that window closes to avoid jeopardizing the claim.
Can I bring a survival action if my loved one died instantly, with no time between injury and death?
Generally, no. Survival actions compensate for damages the deceased personally suffered between injury and death — such as pain, suffering, or medical expenses. If death was instantaneous, there may be no separate survival damages to recover, and the case would likely proceed solely as a wrongful death claim, which doesn’t require opening an estate.
Does having a small or debt-free estate mean I can skip probate entirely?
Not necessarily. Even a modest estate may still need a court-appointed representative if a survival action exists, since standing to bring that claim comes from being the legal representative of the estate — not from the estate’s size or complexity. However, some families may qualify for simplified or expedited probate procedures under Texas law, which an attorney can help identify to reduce cost and delay.
