Florida’s Wrongful Death Act requires that any lawsuit for a death caused by negligence or wrongful conduct be filed by the decedent’s personal representative, not by surviving family members acting individually. Before a personal injury firm can file that complaint, the estate must be opened and a personal representative appointed with Letters of Administration in hand. Bucelo Diaz Law handles the probate side of wrongful death matters for personal injury firms across Florida: opening the estate, securing the personal representative appointment, and administering formal probate from filing through recovery.
Under Florida Statute 768.20, a wrongful death action must be brought by the decedent’s personal representative. A surviving spouse, adult child, or parent cannot file the complaint on their own behalf, no matter how clear liability may be. Before your firm can file, the estate must be opened and a personal representative must be appointed with Letters of Administration in hand. Bucelo Diaz Law handles the probate side of wrongful death matters for personal injury firms across Florida: we file the petition for administration, secure the personal representative appointment, deliver the Letters of Administration to your litigation team, and administer the estate through recovery and closing. Our engagement begins with a retainer to secure initial costs. The balance of our fee is due at settlement, paid from the gross recovery. To open an estate in any Florida county, contact Bucelo Diaz Law at 954.399.1910 or schedule a call below.
Key Takeaways
- A Florida wrongful death action under F.S. 768.20 can only be filed by the decedent’s personal representative, not by the surviving spouse or family directly.
- Formal administration is the standard path because it produces the Letters of Administration the trial court will require, even when the wrongful death claim is the only estate asset.
- From signed engagement and consent forms, our typical timeline is 7 to 10 business days to petition filing, followed by 30 to 60 days for the court to issue Letters (county-dependent).
- The Florida wrongful death statute of limitations is two years from the date of death under F.S. 95.11(5)(e). In an emergency we can petition for a curator under F.S. 733.501.
- Our fee structure: a retainer at engagement to secure initial costs, with the balance due at settlement from the gross recovery.
- Bucelo Diaz Law handles wrongful death formal administration in all 67 Florida counties, in English and Spanish.
This page was prepared by Alexis Bucelo Diaz, Esq., LL.M., founding attorney at Bucelo Diaz Law, PLLC, admitted to the Florida Bar (Bar No. 86918), with a focused practice in Florida probate, estate planning, and trust law. Last reviewed: 2026-05-06.
Schedule a call with our probate team | 954.399.1910 | Send case details by form
Why a Personal Representative Must Be Appointed Before You Can File
The Florida Wrongful Death Act (F.S. 768.16 through 768.26) creates a single, consolidated cause of action for deaths caused by the wrongful act, negligence, default, or breach of any person or entity. The Act does not give survivors a direct right of action. Instead, F.S. 768.20 designates the decedent’s personal representative as the only proper plaintiff: “The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages as specified in this act.”
This requirement is not a formality. A complaint filed by a surviving spouse alone, or by adult children without Letters of Administration, is subject to dismissal for lack of standing. The personal representative is the party with authority to prosecute the claim, execute settlement documents, and receive the recovery proceeds on behalf of the estate and its beneficiaries. The personal representative may also be one of the survivors.
Even when the wrongful death claim is the only asset of the estate, meaning there are no bank accounts, real property, or titled assets to administer, formal administration is still the standard path. Formal administration is required to obtain Letters of Administration. Letters of Administration are what your court will require to recognize the personal representative’s authority to bring suit. Summary administration does not produce Letters of Administration and is generally unavailable where ongoing litigation is anticipated.
Formal administration also requires attorney representation. Florida Probate Rule 5.030 mandates that a personal representative be represented by a Florida-licensed attorney in formal administration proceedings, with only narrow exceptions. This means a PI firm referring a wrongful death matter is not sending the family to do probate on their own. Probate counsel is legally required, and the engagement of separate probate counsel allows each attorney to focus on their respective role without conflict.
Our Scope of Work
Bucelo Diaz Law handles every phase of the probate administration in a wrongful death matter, from first filing through final discharge. The following are our core deliverables in a standard wrongful death formal administration engagement:
- Petition for administration filed in the proper Florida circuit court. Under Florida Probate Rule 5.200, the petition must be filed in the county of the decedent’s domicile at the time of death. We confirm jurisdiction, gather required documentation, and prepare and file all petitions.
- Personal representative appointment. We identify the preferred candidate under F.S. 733.301, prepare the consent and oath documents, and handle any competing preferences or qualification issues with the court.
- Letters of Administration delivered to your litigation team. We deliver certified copies of the Letters immediately upon court issuance, so your complaint can be filed without unnecessary delay.
- Notice to creditors published per F.S. 733.2121. We handle publication in the appropriate county newspaper and serve any known creditors, including the Agency for Health Care Administration where applicable.
- Inventory and court reporting throughout the litigation. We prepare and file the required inventory and all ongoing reports required by the court during the administration period.
- Coordination with your litigation team through discovery, settlement, and post-recovery distribution. We remain available to your firm throughout the litigation. We do not disappear after Letters issue.
- Court approval of any settlement involving a minor survivor. Under Florida Probate Rule 5.636, settlements that affect the interests of a minor beneficiary require court approval. We prepare the petition, support documentation, and attend the hearing.
- Final accounting and closing of the estate after recovery. We prepare the final accounting, petition for discharge, and close the estate in accordance with Florida law after the recovery is distributed.
When a wrongful death recovery includes a minor survivor, the minor’s net recovery typically requires court approval under Fla. Prob. R. 5.636 and F.S. 744.387 and a protective vehicle to hold the funds. Bucelo Diaz Law drafts settlement protection trusts under the Florida Trust Code (F.S. Chapter 736) as a separate service. See our Florida Minor Settlement Protection Trust Attorney page for the engagement model, drafting fees, and court-approval workflow.
What Bucelo Diaz Law Does Not Do
- We do not handle the wrongful death tort claim itself. Your firm continues to lead the litigation, including pleadings, discovery, motion practice, mediation, and trial. We are probate counsel, not co-counsel on the underlying claim.
- We do not split fees with personal injury counsel. Our fees are paid from the estate or settlement proceeds and are independent of your firm’s contingency. There is no shared fee, no referral fee, and no fee-division agreement between our office and yours.
- We do not solicit the underlying personal injury matter from the family. The PI engagement remains exclusively with your firm. Our role begins and ends with the probate administration.
How the Engagement Works: Step-by-Step
PI attorneys handling wrongful death matters need to know exactly what happens next, and when. The table below summarizes the standard workflow from intake to closing, followed by detail on each step:
| Step | What we do | Typical timeline |
|---|---|---|
| 1. Intake call | Confirm county of domicile, will status, proposed PR, and any limitations urgency. | Same day or next business day |
| 2. Engagement and consent forms | Send engagement letter, oath, and any county-specific forms for PR signature. | Within 48 hours of intake |
| 3. Petition filed | File petition for administration under Fla. Prob. R. 5.200 in the proper circuit court. | 7 to 10 business days from signed forms |
| 4. PR appointed and Letters issued | Court issues order and Letters of Administration; certified copies delivered to your firm. | 30 to 60 days from filing (county-dependent) |
| 5. Notice to creditors and ongoing administration | Publish notice under F.S. 733.2121, observe the three-month claim period, file inventory and reports. | 3 months for creditor period; ongoing during litigation |
| 6. Settlement coordination | Prepare court-approval petition where required (including Fla. Prob. R. 5.636 minor approval) and PR authorization documents. | Aligned with your settlement timeline |
| 7. Final accounting and discharge | Prepare final accounting, distribute under F.S. 768.21, file petition for discharge, close estate. | After recovery is distributed |
Each step in the workflow is described below in additional detail:
Intake call
Same day or next business day
Your firm or the surviving family contacts our office. We confirm the county of decedent’s domicile, whether a will exists, the proposed personal representative candidate, and whether any statute of limitations concern requires accelerated action. This call typically takes 20 to 30 minutes.
Engagement letter and consent forms
Within 48 hours
We send the engagement letter and all forms required for the personal representative’s signature: the oath, the designation of resident agent if applicable, and any ancillary documents required by the county of filing. The personal representative signs; we handle filing.
Petition filed
Within 7 to 10 business days of receiving signed forms
We prepare and file the petition for administration under Florida Probate Rule 5.200 in the appropriate circuit court, along with any accompanying petitions required at the same time (such as a petition for curator if urgency demands it). We pay all filing costs at this stage as part of the engagement.
Court appoints PR + issues Letters of Administration
Typical 30 to 60 days from filing (county-dependent)
Processing time depends on the county’s probate division and docket load. Miami-Dade and Broward have higher-volume dockets and typically run toward the longer end of that range. Collier and Marion counties generally move faster. We deliver certified copies of the Letters to your firm immediately upon issuance.
Notice to creditors and ongoing administration
Through litigation
We handle the mandatory publication under F.S. 733.2121, the three-month creditor claim period, and all inventory and reporting obligations while the wrongful death case proceeds through discovery and toward resolution.
Settlement coordination
At settlement
When your firm reaches a settlement or judgment, we coordinate the court-approval process where required (including any approval under Fla. Prob. R. 5.636 for minor beneficiaries) and prepare the personal representative’s authorization documents to execute the settlement.
Final accounting and discharge
Post-recovery
After recovery proceeds are distributed in accordance with F.S. 768.21 and applicable court orders, we prepare and file the final accounting, petition for discharge, and close the estate. The personal representative is formally discharged from their obligations.
Fee Structure
Our engagement begins with a retainer paid at the start of the matter. The retainer secures court filing fees, publication, and the initial work of filing the petition for administration and obtaining Letters of Administration.
The balance of our fee is due at settlement, paid from the gross recovery in the wrongful death case.
The retainer amount and the balance-fee structure are set in the engagement letter, disclosed in writing before engagement, and subject to court approval where Florida law requires it. For context, Florida Statute 733.6171 sets a presumed reasonable attorney fee schedule for formal administration; our fee structure in wrongful death matters is addressed specifically in the engagement letter.
Fee disclosure: Our fee structure is described in the engagement letter and, where required by Florida law, is subject to court approval. We do not split fees with personal injury counsel. Past results do not guarantee a similar outcome.
Personal Representative Appointment: Edge Cases We Handle
The personal representative appointment is the step that trips up wrongful death matters most often. Here are the situations our team encounters regularly and how Florida law addresses each one:
No Will (Intestate Estate)
When the decedent died without a will, F.S. 733.301 governs the order of preference for appointment:
- The surviving spouse is first in line.
- If there is no surviving spouse, the person selected by a majority of the heirs has next preference.
- If no majority is reached, the heir nearest in degree to the decedent has preference.
- If no eligible individual applies or qualifies, the court may appoint any capable person.
We identify the preferred candidate early in the intake process to avoid any delay at the petition stage.
Will Exists, but the Named Personal Representative Is Unavailable
If the will names a personal representative who has predeceased the decedent, who is unwilling to serve, or who is disqualified under Florida law, the will’s alternate-PR designation controls, followed by the statutory priority under F.S. 733.301. Florida Probate Rule 5.310 addresses the disqualification of a personal representative who does not meet the requirements for service. We assess qualification issues at intake and present the court with the appropriate candidate on the first petition.
Surviving Spouse and Adult Children Disagree on Who Should Serve
When surviving family members dispute who should serve as personal representative, the dispute must be resolved before Letters can issue. In time-sensitive wrongful death matters where the statute of limitations is approaching, we can petition for appointment of a curator under F.S. 733.501. A curator may be granted authority to perform any duty of a personal representative on an emergency basis while the dispute over permanent appointment is resolved.
Statute of Limitations Urgency
The wrongful death statute of limitations in Florida is two years from the date of death, under F.S. 95.11(5)(e). If your firm is referred the matter close to that deadline, contact us immediately. We can move the petition filing to the front of the queue and, in genuine emergencies, seek appointment of a curator under F.S. 733.501 to take immediate action before the full personal representative appointment is complete. Do not wait until the last week of the limitations period to reach out.
Decedent Domiciled Out of State, Wrongful Death Occurred in Florida
If the decedent was domiciled in another state but was killed in a Florida accident, Florida’s courts have jurisdiction over a Florida wrongful death claim. However, the primary probate administration would typically open in the decedent’s state of domicile. Florida ancillary administration may be required to establish the personal representative’s authority to bring the Florida lawsuit. The specific path depends on whether the domiciliary state has already appointed a personal representative and whether that appointment can be recognized in Florida. We analyze this at intake and advise your firm on the most efficient route to a Florida Letters of Administration.
Decedent Domiciled in Florida, Wrongful Death Occurred Out of State
When the decedent was a Florida domiciliary, Florida is the proper state for primary administration regardless of where the death occurred. We file in the Florida county of the decedent’s last domicile. If the wrongful death lawsuit will be prosecuted in another state’s courts, we coordinate with your litigation team and any out-of-state counsel on the recognition of the Florida Letters in that jurisdiction.
A Personal Representative Was Already Appointed Before the Wrongful Death Claim Was Discovered
This situation arises when the decedent’s estate was opened for other reasons (other assets, pre-existing creditors) and a wrongful death claim later came to light. The existing personal representative is the proper party to prosecute the wrongful death claim unless they have been formally discharged. If the original administration was closed, we coordinate with prior counsel on a petition to reopen the estate or substitute a new personal representative. Where the original personal representative is unwilling or legally unable to continue, Florida law provides a process for removal under F.S. 733.504 and appointment of a successor.
Out-of-State PI Firms: How the Florida Referral Engagement Works
Personal injury firms based outside Florida regularly encounter wrongful death matters that require Florida probate counsel. The three most common situations:
- The decedent lived in Florida but your firm is in another state. Florida is the proper domicile for primary administration. You need a Florida-licensed probate attorney to open the estate, secure the personal representative appointment, and deliver Letters of Administration to your litigation team.
- The decedent lived in another state, but the accident or wrongful death occurred in Florida. Florida ancillary administration under F.S. 734.102 and Florida Probate Rule 5.470 may be required to give the personal representative authority to prosecute the Florida wrongful death claim. Whether ancillary administration in Florida is the right path depends on whether the domiciliary state has already issued Letters and whether those Letters will be recognized in Florida courts.
- The primary estate is already open in another state. If the domiciliary state has appointed a personal representative, that appointment may or may not be recognized by Florida courts for purposes of filing the wrongful death complaint. We analyze the specific procedural path at intake and advise on whether Florida ancillary administration, recognition of the foreign Letters, or a new petition is required.
Bucelo Diaz Law does not require your firm to be Florida-licensed. Florida Probate Rule 5.030 requires that the personal representative in a formal administration be represented by a Florida-licensed attorney. That is our role. Your firm continues to lead the wrongful death litigation. Our role is limited to the Florida probate side of the matter.
Non-resident personal representatives present one additional consideration: Florida law under F.S. 733.304 places qualification restrictions on non-resident personal representatives. A non-resident who is not a legally adopted child or adoptive parent, a spouse, a sibling, a parent, or a child of the decedent may not serve as personal representative under Florida law, with limited exceptions. We identify any qualification issue at intake and present the court with the best-qualified available candidate.
To refer a Florida wrongful death probate matter from outside Florida, contact our team at 954.399.1910 or use the contact form. We respond to PI attorney inquiries same day or next business day.
Bilingual Service for Spanish-Speaking Survivors
Bucelo Diaz Law serves clients in English and Spanish. Many wrongful death matters in Florida involve Spanish-speaking surviving family members, and the probate process places real demands on those individuals: signing consent forms, appearing for oath proceedings, providing documentation, and understanding the administration timeline alongside an active lawsuit.
When probate counsel and the family share a primary language, the engagement runs faster and with fewer errors. Signed consent forms are completed correctly the first time. Questions about the process get answered directly. The personal representative understands their obligations without waiting for a third-party translation. If your client’s family is more comfortable in Spanish, that is one less logistical barrier between your firm and a Letters of Administration.
Counties We Serve
Bucelo Diaz Law handles wrongful death formal administration in all 67 Florida counties. For county-specific procedural information, clerk contacts, and filing fee schedules, see our Florida Probate by County directory.
FREQUENTLY ASKED QUESTIONS
Common Questions About Florida Wrongful Death Probate
How fast can you get Letters of Administration so we can file the wrongful death complaint?
Timeline depends primarily on the county’s probate division and docket load. From the date we receive signed engagement and consent forms, our target is 7 to 10 business days to petition filing, followed by 30 to 60 days for the court to issue the order and Letters. Lower-volume counties such as Collier (Naples) and Marion (Ocala) often move faster. Miami-Dade and Broward tend toward the longer end of that range. If your statute of limitations is approaching, contact us immediately. We can prioritize your filing and, in genuine emergencies, petition for a curator under F.S. 733.501 to take immediate protective action before the full appointment is complete.
Do you take wrongful death cases, or only the probate side?
We handle the probate side only. We are not a personal injury firm and we do not take contingency fees on the wrongful death claim itself. Our role is to open the estate, secure the personal representative appointment, administer the formal probate, and coordinate with your litigation team from Letters of Administration through final estate closing. Your firm retains full control of the wrongful death litigation. This is a back-office partnership, not a co-counsel arrangement on the tort claim, and there are no fee-split concerns between our engagement and yours.
What if our client has not yet decided who should serve as personal representative?
This is common, and it does not have to delay your case. F.S. 733.301 sets the statutory order of preference. For an intestate estate, the surviving spouse is first in line. If there is no surviving spouse, the majority of heirs may select a candidate. We walk the family through the options during intake and identify the best-qualified candidate based on Florida’s qualification requirements. If family members disagree, we advise on the dispute-resolution process. We do not simply wait for the family to decide on their own while the limitations clock runs.
Does the surviving spouse have to be the personal representative?
No. The surviving spouse has the first preference for appointment under F.S. 733.301 in an intestate estate, but the spouse is not required to serve. A surviving spouse may decline the appointment, in which case the statutory preference order continues: the person selected by a majority of heirs, then the heir nearest in degree. If a will exists and names a different personal representative, the named designee generally controls. A surviving spouse who would prefer not to serve as personal representative can simply decline in writing, and we proceed with the next eligible candidate.
Does Florida require probate before a wrongful death case can settle?
Yes, with limited exceptions. Florida’s Wrongful Death Act (F.S. 768.20) designates the personal representative as the only party authorized to prosecute the wrongful death claim and to execute any settlement agreement on behalf of the estate and its beneficiaries. Without a personal representative appointed and Letters of Administration issued, the PI firm has no party with legal standing to sign a release. Probate must be open and the personal representative properly appointed before a binding settlement can be executed. If a settlement is reached before Letters issue, the signing must wait or, in genuine emergencies, a curator can be appointed under F.S. 733.501 to execute the agreement pending full administration.
The decedent had a will. Does that change anything for the wrongful death probate?
The existence of a will affects who serves as personal representative, not whether probate is required. If the decedent left a will, the personal representative named in the will holds first preference for appointment under F.S. 733.301 for testate estates. The will also controls the distribution of probate assets after the wrongful death recovery is received into the estate, unless the will’s distribution provisions conflict with the statutory framework under the Florida Wrongful Death Act. We review the will during intake and advise on any issues that could affect the administration timeline or the distribution.
What happens if a survivor is a minor child?
Minor beneficiaries require additional procedural steps. Under Florida Probate Rule 5.636, any settlement that affects the interests of a minor must be approved by the probate court before the personal representative can execute the settlement agreement. In some circumstances, the court will also appoint a guardian ad litem to independently represent the minor’s interests and report to the court. We identify minor beneficiaries at intake, coordinate the guardian ad litem process where required, and prepare all court-approval petitions so that a settlement can close without a last-minute procedural problem. Plan for additional lead time when minor beneficiaries are involved. Where a settlement protection trust is the chosen vehicle, Bucelo Diaz Law drafts and administers the trust under the Florida Trust Code as a separate service priced independently of the formal administration fee.
What if the decedent lived in another state but the accident happened in Florida?
Domicile at death controls where the primary probate administration opens. If the decedent was domiciled in another state, that state is typically the proper venue for primary administration. Florida may require ancillary administration to give the personal representative authority to bring a Florida wrongful death claim. Whether ancillary administration in Florida is the right path depends on whether the domiciliary state has already issued Letters and whether those Letters can be used directly in Florida courts. Bucelo Diaz Law handles Florida ancillary probate and can advise on the coordination between the domiciliary estate and the Florida proceedings from the first intake call.
Our firm is based outside Florida. Can Bucelo Diaz Law open the Florida probate for our client’s wrongful death case?
Yes. Bucelo Diaz Law handles Florida wrongful death formal administration on behalf of personal injury firms based in any state. Florida Probate Rule 5.030 requires that the personal representative in a formal administration be represented by a Florida-licensed attorney. That is our role. Your firm continues to lead the wrongful death litigation. We open the estate in the appropriate Florida circuit court, secure the personal representative appointment, and deliver certified Letters of Administration to your litigation team. The engagement is handled remotely. The personal representative does not need to appear in person for most proceedings. Contact us at 954.399.1910 or use the contact form to initiate intake.
The decedent lived in another state but the wrongful death occurred in Florida. Does our firm need Florida ancillary probate?
It depends on the status of the domiciliary estate. If the decedent’s home state has appointed a personal representative and issued Letters, whether those Letters can be used in Florida courts to file the wrongful death complaint depends on Florida’s recognition rules. In many cases, Florida ancillary administration under F.S. 734.102 and Florida Probate Rule 5.470 is the more reliable path to establishing the personal representative’s authority to bring the Florida claim. Ancillary administration in Florida requires filing in the Florida circuit court of the county where the wrongful death occurred or where Florida property is located. We analyze the specific procedural path at intake and advise on whether ancillary administration, a foreign Letters recognition proceeding, or a new Florida petition is required.
How does the fee structure work?
Our engagement begins with a retainer paid at the start of the matter. The retainer secures initial costs (court filing fees, publication, and the work to open the estate and obtain Letters of Administration). The balance of our fee is due at settlement, paid from the gross recovery. Both the retainer amount and the balance-fee structure are set in the engagement letter and disclosed before engagement. Where Florida law requires court approval of fees, we petition the court with the supporting documentation. We do not split fees with personal injury counsel. Past results do not guarantee a similar outcome.
What do you need from us to get started?
For the intake call, we need the decedent’s name, date of death, county of last domicile, whether a will exists, the proposed personal representative candidate, and the approximate date of the underlying incident (so we can assess the limitations period under F.S. 95.11(5)(e)). If you have a copy of the death certificate and any will, send those as well but they are not required before the call. We can start moving on the petition as soon as we have signed engagement documents from the personal representative. Use the contact form below or call 954.399.1910 to initiate the intake.
Can you coordinate with our firm through the entire litigation, including settlement and distribution?
Yes. We remain active as probate counsel from the petition filing through final estate closing, regardless of how long the litigation takes. When your firm approaches settlement, contact us in advance so we can prepare the court-approval petition (where required), confirm the personal representative’s authority to execute settlement documents, and coordinate the distribution accounting. After the recovery is received and distributed, we prepare the final accounting and petition for discharge so the estate closes formally. You do not need to manage the probate calendar in addition to your litigation docket. We track it.
Related Services for Personal Injury Attorneys
- Florida Probate Lawyer: Overview of Florida probate process, timelines, and costs.
- Formal Administration: Detailed guide to the formal probate process required in wrongful death matters.
- Ancillary Probate: For matters involving a decedent domiciled outside Florida.
- Florida Minor Settlement Trust Attorney: Settlement protection trust drafting and court approval when a minor survivor is involved.
- Florida Probate Cost Guide 2026: County-by-county filing fees, timeline estimates, and cost context.
Schedule a Call with Bucelo Diaz Law
If you have a wrongful death matter and need probate counsel, reach our team directly:
- Phone: 954.399.1910
- Schedule a phone consultation: Book a call online
- Send case details by form: Contact form (same-day or next-business-day callback for PI attorney inquiries)
Bucelo Diaz Law is admitted to practice in Florida and serves all 67 counties from offices in Weston, Ocala, and Naples. We serve clients in English and Spanish. For broader context on Florida probate procedure, see our Florida Probate Lawyer pillar page and the formal administration overview.
About the Author
Alexis Bucelo Diaz, Esq., LL.M. is the founding attorney of Bucelo Diaz Law, PLLC. She holds a Master of Laws (LL.M.) in Estate Planning from the University of Miami School of Law and has more than 15 years of focused experience in Florida probate, estate planning, and trust administration, including formal administration in wrongful death matters. Florida Bar No. 86918. Last reviewed: 2026-05-06.
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