Families are often told that "the estate has to be opened first." For the claims that follow a death caused by someone else, that is usually not the first step. This guide explains why, using the statutes listed at the end. For the claim itself, start with our wrongful death page.

How does it work, step by step?

  1. Identify the family members who may bring the wrongful death claim (Code of Civil Procedure 377.60).
  2. Find out whether anyone has opened, or needs to open, an estate case for the person who died.
  3. If there is no estate case, identify the successor in interest: the will's beneficiaries, or the heirs if there was no will (Code of Civil Procedure 377.10 and 377.11).
  4. Have the successor sign the sworn declaration and attach a certified death certificate (Code of Civil Procedure 377.32).
  5. File the wrongful death claim and the survival claim together, if both exist (Code of Civil Procedure 377.62), before the deadline.

Which claim needs what?

One death can create two separate claims, and they are brought in different ways:

Wrongful death claimSurvival claim
Whose lossesThe family members' own losses from the deathThe losses the person who died suffered before death
Who may bring itThe family members the statute lists, or the personal representative on their behalf (Code of Civil Procedure 377.60)The personal representative or, if there is none, the successor in interest (Code of Civil Procedure 377.30)
Is probate needed?No. The claim belongs to the listed family members, not the estateNot if no estate case is pending and a successor in interest files the required declaration (Code of Civil Procedure 377.32)
What is filedThe lawsuit, by the family members togetherThe lawsuit plus a sworn declaration and a certified death certificate

Who counts as family for the first column is a question of its own; our guide on who can file a wrongful death claim covers spouses, children, parents, stepchildren and partners.

Who is the "successor in interest"?

The successor in interest is the person, or the people, who inherit the claim the person who died had (Code of Civil Procedure 377.11). If there was a will, that means the beneficiaries who receive the claim under it. If there was no will, it means the people who inherit under California's intestate succession rules in Probate Code 6401 and 6402, usually a spouse, children or, if there are none, parents (Code of Civil Procedure 377.10).

The statute gives the personal representative the first right to sue if one has been appointed (Code of Civil Procedure 377.30). So the successor route is for families where no estate case has been opened.

What does the successor's declaration have to say?

Code of Civil Procedure 377.32 lists the contents. The person filing signs an affidavit or a declaration under penalty of perjury that states:

  • the name of the person who died, and the date and place of death;
  • that no proceeding is now pending in California to administer the estate;
  • if an estate was administered, a copy of the final order distributing the claim to the successor;
  • that the person signing is the successor in interest, or is authorized to act for the successor, with facts supporting that;
  • that no other person has a better right to bring the claim.

A certified copy of the death certificate must be attached. When more than one person is the successor, for example several children, they can sign one declaration together with the statements adjusted to fit (Code of Civil Procedure 377.32(b) and (c)).

When is a personal representative still needed?

When an estate case is already open, the personal representative appointed in it is the one who brings the survival claim, because the successor route is available only "if none" (Code of Civil Procedure 377.30). A probate case may also be needed for reasons unrelated to the injury claim, such as property that must pass through the estate.

If the person who died had already filed a lawsuit before death, the case does not have to start over: on a motion, the court must allow the personal representative or, if there is none, the successor in interest to continue it (Code of Civil Procedure 377.31). In either situation, the court may make orders to protect the case, including appointing the successor as a special administrator or guardian ad litem (Code of Civil Procedure 377.33).

Can both claims be in one lawsuit?

Yes. A survival claim may be joined with a wrongful death claim arising out of the same wrongful act, and a continued case and a wrongful death case may be consolidated for trial (Code of Civil Procedure 377.62). The damages stay separate: the wrongful death award cannot include what the survival claim recovers (Code of Civil Procedure 377.61). Since January 1, 2026, a survival claim generally cannot include the person's pain and suffering before death; see what changed for pre-death pain and suffering. For what each family member receives from the wrongful death award, read how a wrongful death settlement is divided.

What if probate is needed in Sonoma County?

Sonoma County Superior Court moved its probate work in July 2026. Its announcement moved the probate clerk's office to the new Hall of Justice, 625 Administration Drive, Santa Rosa, on July 20, 2026, and the probate courtroom, now Department 63 on the sixth floor, on July 27. The court's location page for the Civil and Family Law Courthouse at 3055 Cleveland Avenue still lists a probate clerk's office, so call the court at (707) 521-6500 before you go. Civil injury cases stay at Cleveland Avenue; see what to expect at Sonoma County Superior Court.

What changes the answer?

A will. If there was a will, the survival claim follows it to the beneficiaries who receive the claim; if not, it follows the intestate succession rules (Code of Civil Procedure 377.10). The wrongful death claim does not follow the will at all; it belongs to the family members listed in Code of Civil Procedure 377.60. Our guide on what a family can recover in a wrongful death case explains what that claim covers.

An open estate case. When a personal representative has been appointed, that person brings the survival claim (Code of Civil Procedure 377.30), and the successor's declaration is not available because it must say no estate proceeding is pending.

A lawsuit already on file. If the person had sued before dying, the case continues on a motion by the personal representative or, if there is none, the successor (Code of Civil Procedure 377.31).

A minor among the successors. The court may appoint a guardian ad litem or make other orders to protect the case (Code of Civil Procedure 377.33). A minor who is a party appears through a guardian or guardian ad litem (Code of Civil Procedure 372).

A wrongdoer who also died. A claim against a person who has died must generally be filed within one year after that person's death (Code of Civil Procedure 366.2). Our guide on claims when the person who caused the death also died explains how the estate and its insurer are sued.

What could this look like? An example

For example, imagine a man who dies after a crash, leaving a wife and two adult children, no will and no estate case.

The wife and children may bring the wrongful death claim together as the family members the statute lists. For the survival claim, they are also the heirs who inherit under Probate Code 6401 and 6402, so they can sign one declaration as his successors in interest, attach a certified copy of the death certificate, and join that claim to the wrongful death case. The survival claim can include his medical bills and lost wages before death, but in a case filed in 2026 it generally cannot include his pain and suffering. No probate case is needed for any of this. The example is made up to show the steps; a real family's situation may differ.

What mistakes do families make?

  • Opening probate only to bring the wrongful death claim, which belongs to the family members, not the estate.
  • Filing the successor's declaration without a certified copy of the death certificate.
  • One family member suing alone while the others wait, when the claims of all the family members are ordinarily brought together.
  • Assuming the deadline stops while the family decides who should file.
  • Signing a declaration that says no estate case is pending when a relative has already opened one.

What should we do this week?

  1. Order several certified copies of the death certificate.
  2. Find out whether there is a will, and whether anyone has filed an estate case.
  3. List the spouse or registered domestic partner, the children, and any other family members who may qualify.
  4. Collect medical bills and pay records from before the death, which belong to the survival claim.
  5. Note the date of death and read how long you have to file a personal injury claim in California, including the six-month rule for public entities.

Does any of this change the deadline?

No. Sorting out who files does not stop the clock. The wrongful death claim generally must be filed within two years of the death (Code of Civil Procedure 335.1), and a written claim to a public entity is due within six months. Our guide on how long a family has to file a wrongful death claim covers the exceptions.

Frequently asked questions

Can several children sign one successor declaration?

Yes. When more than one person signs, the statements are adjusted to show that (Code of Civil Procedure 377.32(b)).

Can the executor bring the wrongful death claim?

Yes. The personal representative may bring it on behalf of the family members entitled to it (Code of Civil Procedure 377.60). The recovery still belongs to those family members, not the estate.

What if the will leaves everything to a charity?

The survival claim follows the will (Code of Civil Procedure 377.10(a)). The wrongful death claim still belongs to the family members the statute lists.

Does the survival claim have its own deadline?

The claim survives the death, subject to the time limit that applies to it (Code of Civil Procedure 377.20). For an injury claim, that is generally two years.

Can a child be the successor in interest?

Yes, if the child inherits the claim. The court can then make protective orders, including appointing a guardian ad litem (Code of Civil Procedure 377.33).

What if our loved one was a child?

The same two claims exist, and the parents are usually the heirs. See what parents can recover for the death of a child.

If your family has lost a loved one and you are unsure who should bring the claim, contact Young Law Group today at (707) 343-0556 or through our contact page for a free and confidential consultation.

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