Do I need to open an estate to file?

Yes. Because the Act requires the action to be brought by the personal representative, a probate proceeding must be opened and a representative appointed first.

What that involves. A petition in the probate court, notice to interested persons, and an order appointing the representative with letters of administration issued.

Timing. It generally takes weeks, sometimes longer where there's a dispute over who should serve or where the will is contested.

Why families are surprised. They contact an attorney about the death, and learn that a separate court proceeding has to happen before anything can be filed. That's not a delay tactic — it's a statutory prerequisite.

The two proceedings interact. The probate estate handles the decedent's assets and debts. The wrongful death claim is brought through it, but the recovery is distributed according to the Act's framework rather than the will.

One practical point. Even where the estate has few assets, opening it may be necessary solely to pursue the claim.