Who Can Legally File a Wrongful Death Lawsuit in New Jersey?
In New Jersey, individual family members cannot file a wrongful death lawsuit on their own. The law requires that the lawsuit be officially filed by the Executor of the deceased person's estate or a court-appointed Administrator Ad Prosequendum.
When a tragic accident claims the life of a family member, emotions run high, and multiple relatives may want to take immediate legal action against the responsible party. However, New Jersey law is extremely strict about who has the legal authority (known as "standing") to file a wrongful death lawsuit. You cannot simply walk into a courthouse in Hackensack, Newark, or Camden and file a suit just because you are the victim's spouse or child.
To prevent chaos and multiple competing lawsuits over the same accident, the state requires a single representative to act on behalf of all the surviving heirs. This representative is appointed by the local Surrogate's Court. Understanding this preliminary step is critical to getting your case started before evidence disappears. If you need help securing the proper legal authority, you can easily find a specialized probate or personal injury attorney in our US Lawyers Directory.
The General Rule: Only the Estate Representative Can Sue
Under N.J.S.A. § 2A:31-2, every wrongful death action must be brought in the name of an administrator ad prosequendum of the decedent, or, if the decedent left a valid will, by the executor of that will.
This means the person filing the lawsuit is essentially a trustee. They are managing the lawsuit, signing the paperwork, and working with the lawyers, but they are not the only one who gets the money. If they win the case, the settlement funds are distributed to all the eligible dependents (the spouse, children, or parents) based on their level of financial dependence on the deceased.
Filing When There is a Will (The Executor)
If your loved one passed away with a valid Last Will and Testament, the process is straightforward. The will should name an "Executor" (the person chosen to manage the estate). That designated Executor must take the will to the County Surrogate's Court, such as the Essex County Surrogate's Court, Newark or the Bergen County Surrogate's Court, Hackensack, to be officially sworn in. Once the Surrogate issues the "Letters Testamentary," the Executor has the full legal power to hire a personal injury lawyer and file the wrongful death lawsuit.
Appointing an Administrator Ad Prosequendum
If the deceased person died without a will, the situation requires an extra legal step. Someone must step forward and ask the Surrogate's Court to be appointed as the "Administrator Ad Prosequendum." This Latin term simply means "Administrator for the purpose of prosecuting" a lawsuit. This person's sole legal power is to manage the wrongful death claim; they cannot sell the deceased's house or access their bank accounts without separate, broader estate administration powers.
Typically, the surviving spouse has the first right to be appointed. If there is no spouse, the adult children are next in line. To secure this title, you must file a formal application with the Surrogate's Court in the county where the deceased lived.
Filing when the Deceased Died Without a Will (Intestate)
When someone dies without a will (intestate), you must prove your relationship to the deceased to the Surrogate. You will need to provide the original death certificate and file an application detailing all surviving next of kin. Once the Surrogate reviews your documents and ensures no other closer relative is objecting, they will grant you the Letters of Administration Ad Prosequendum, officially unlocking the courthouse doors for your wrongful death claim.
What to Do if the Named Executor Refuses to Sue
Sometimes, the person named as the Executor in the will does not want to get involved in a stressful lawsuit, or they might have a conflict of interest. In these rare cases, the surviving dependents are not out of luck. Under New Jersey law, if an Executor flat-out refuses to file a wrongful death claim, another interested family member can petition the Superior Court to have that Executor temporarily bypassed or removed for the specific purpose of bringing the lawsuit. A judge will review the petition and can appoint a special administrator so the family's right to justice is not lost.
How Much Does it Cost to Be Appointed?
Before you can even worry about the costs of a massive civil trial, you must deal with the Surrogate's Court fees. These are generally quite low:
- Surrogate's Fees: The fee to apply for an Administration Ad Prosequendum is typically around $50 to $100, depending on the county.
- Death Certificates: You will need several certified copies of the death certificate, which usually cost $10 to $25 each from the New Jersey Department of Health.
- Lawyer Fees: Most wrongful death attorneys will help you fill out the Surrogate paperwork for free as part of their contingency fee agreement for the larger personal injury lawsuit.
How Long Does the Appointment Take?
You cannot file the wrongful death lawsuit until you have the official paperwork from the Surrogate's Court. Fortunately, this step is relatively fast. Assuming there are no disputes among family members about who should be appointed, the Surrogate can usually issue the Letters of Administration Ad Prosequendum within 1 to 3 weeks of receiving your application and the death certificate.
Frequently Asked Questions (FAQ)
Can a common-law spouse file a wrongful death lawsuit in New Jersey?
New Jersey does not recognize common-law marriages created within the state. Therefore, an unmarried partner generally cannot be appointed as the administrator or claim wrongful death damages, no matter how long the couple lived together. Only legally married spouses or registered domestic partners have standing.
Does the Administrator get to keep all the settlement money?
No. The Administrator acts purely as a fiduciary. They manage the lawsuit, but a Superior Court judge must approve the final settlement distribution. The judge will hold a hearing to divide the money fairly among all surviving dependents based on their actual financial losses.
Can multiple family members be Co-Administrators?
Yes. The Surrogate's Court can appoint two family members (such as two adult siblings) to act as Co-Administrators Ad Prosequendum. However, both must sign all legal documents and agree on major lawsuit decisions, which can sometimes slow down the settlement process.
What if the deceased lived in a different state but died in a New Jersey accident?
If the victim was not a New Jersey resident, you typically open the primary estate in their home state. You can then obtain an "Ancillary Administration" in New Jersey, giving you the legal standing to file the lawsuit against the at-fault party in a New Jersey Superior Court.
Can a minor child be appointed to file the lawsuit?
No. Anyone appointed as an Executor or Administrator Ad Prosequendum must be at least 18 years old and mentally competent. If the only surviving heir is a minor child, a court-appointed legal guardian must step in to file the lawsuit on the child's behalf.
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