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Anyone who has been involved in a lawsuit quickly learns that nothing happens quickly! Litigation often last years. What happens if you are a plaintiff in a California lawsuit, and a defendant dies? Do you lose your chance to recover from the deceased party? What do you need to do to preserve your rights?<\/p>\n
To start with, it must be noted that the California Probate Code and the Code of Civil Procedure do not and cannot anticipate every possible scenario. As a result, uncertainty can exist regarding how to proceed after a party has died. The safest practice is to comply with all the applicable procedures in both codes, even if it may appear a particular procedure is unwarranted or duplicative.<\/p>\n
The first step in analyzing how to proceed with an action when a party dies begins with determining if the claim survives death.<\/p>\n
Under the California Code of Civil Procedure (CCP) Section 377.20<\/a>: \u201cExcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person\u2019s death, but survives subject to the applicable limitations period.\u201d<\/p>\n And if you have already initiated a lawsuit before a defendant dies, \u201ca pending action or proceeding does not abate by the death of a party if the cause of action survives.\u201d CCP Section 377.21<\/a><\/p>\n Subject to the California Probate Code sections governing creditor claims<\/a>, \u201ca cause of action against a decedent that survives may be asserted against the decedent\u2019s personal representative or, to the extent provided by statute, against the decedent\u2019s successor in interest.\u201d CCP Section 377.40<\/a><\/p>\n A decedent\u2019s \u201cpersonal representative\u201d refers to the person or entity formally appointed by the Probate Court in the decedent\u2019s estate proceeding, and includes, an \u201cexecutor, administrator, administrator with will annexed, [or] special administrator.\u201d California Probate Code Section 58<\/a>. In such situations, the \u201c\u2019decedent\u2019s successor in interest\u2019 means the beneficiary of the decedent\u2019s estate or other successor in interest who succeeds . . . to a particular item of the property that is the subject of a cause of action.\u201d CCP 377.11<\/a><\/p>\n When a defendant dies during a lawsuit that has already commenced but before the conclusion of that action, plaintiff\u2019s counsel must act quickly to preserve their client\u2019s claims against a defendant-decedent.<\/p>\n From the point of view of the Court, the case will continue even though the party is deceased.<\/p>\n \u201cOn motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent\u2019s personal representative or, to the extent provided by statute, against the decedent\u2019s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.\u201d CCP Section 377.40<\/a>.<\/p>\n In addition to the filing of a Motion in the pending action, the plaintiff must file a \u201ccreditor\u2019s claim\u201d in the decedent\u2019s estate probate proceeding. This is required to give the decedent\u2019s personal representative and the probate court sufficient notice concerning the pending claim. The timing of the creditor\u2019s claim is crucial for a plaintiff to recover from a deceased defendant\u2019s estate, and not only because the plaintiff wants to protect their interest before the deceased defendant\u2019s assets are distributed to the estate\u2019s beneficiaries. The Probate Code also lays out strict time limitations on the filing of these creditor\u2019s claims.<\/p>\n When a creditor\u2019s claim is required, the plaintiff must file it within four months from the date that the letters of administration are first issued to a personal representative (in the decedent\u2019s estate proceeding), or 60 days after notice of administration of the decedent\u2019s estate is given to the creditor, whichever is later. California Probate Code Section 9100<\/a>. \u00a0The decedent\u2019s personal representative may accept the creditor\u2019s claim, accept in part and reject in part, or reject the claim entirely. Probate Code Section 9250<\/a>. \u00a0If the decedent\u2019s personal representative takes no action concerning plaintiff\u2019s creditor\u2019s claim, then the claim can be deemed rejected on the 30th day after it was filed. Probate Code Section 9256<\/a>. If a creditor\u2019s claim is rejected, the plaintiff then has 90 days to move the court in the pending action to substitute in the defendant-decedent\u2019s personal representative into the pending litigation, or to initiate new litigation to enforce claim not already part of an existing lawsuit. Probate Code Section 9370<\/a>.<\/p>\n Finally, a one-year creditor\u2019s claim statute of limitation from decedent\u2019s date of death applies regardless of the status of decedent\u2019s estate proceeding or the appointment of decedent\u2019s personal representative.<\/p>\n For more on creditor\u2019s claims, click here<\/a>.<\/p>\n If the defendant had insurance coverage for the claim, the statute of limitations of one-year from date of death for claims against the decedent does not apply and the case can proceed \u201cwithout the need to join as a party the decedent\u2019s personal representative or successor in interest. Probate Code Section 550<\/a>. In addition, for claims that have not been filed before the defendant\u2019s death, the applicable statute of limitations is extended for one year. Probate Code Section 551<\/a>.<\/p>\n Procedurally, the plaintiff may sue the deceased defendant\u2019s insurance company directly by naming \u201cEstate of x, Deceased\u201d in the complaint, where x is the name of the deceased insured, and serving the insurance company in writing. Probate Code Section 552<\/a>. In this case recovery would be limited to coverage amount under the decedent\u2019s policy. It is possible to sue both the insurance company and the personal representative of the estate, so long as you have effectively submitted a creditor\u2019s claim to the Personal Representative pursuant to the Probate Code 9000 et seq<\/a> and follow the procedures outlined above.<\/p>\n The case law suggests that it may not be necessary for the Plaintiff to open probate just for purposes of filing a creditor\u2019s claim in a pending lawsuit. In Clark v Kerby<\/em><\/a>, the court makes clear that knowledge of the death does not trigger a duty to file a claim if there is no administration.<\/p>\n \u201cIt has never been the debtor\u2019s death that triggers the duty to file a claim; rather, it is the commencement of administration and publication or actual notice. Thus, even if an attorney for a creditor knows that the debtor died, unless administration has commenced there is neither need nor procedure for filing a claim.\u201d (Clark v. Kerby<\/em><\/a> (1992), 4 Cal.App.4th 1505)<\/p>\n So if there has been no probate proceeding commenced, Clark suggests the one-year from death \u201cnonclaim\u201d deadline would not apply.<\/p>\n However, given the uncertainty, if no decedent\u2019s estate probate proceeding has been initiated, or no personal representative appointed, then plaintiff\u2019s counsel should consider opening probate themselves so that a creditor\u2019s claim can be timely filed within one-year of the decedent\u2019s passing.<\/p>\n After substituting a deceased defendant\u2019s personal representative or, if allowed by statute, the decedent\u2019s successor in interest, \u201call damages are recoverable that might have been recovered against the decedent had the decedent lived.\u201d CCP 377.42<\/a><\/p>\nWho takes the place of the deceased defendant?<\/strong><\/h2>\n
What is the procedure to start or continue a lawsuit after the defendant dies?<\/strong><\/h2>\n
Plaintiff must file a creditor\u2019s claim against the deceased defendant\u2019s estate.<\/strong><\/h2>\n
Do I have to add the deceased defendant\u2019s estate if he had insurance?<\/strong><\/h2>\n
What happens if there is n<\/strong>o probate proceeding for a deceased defendant\u2019s estate?<\/strong><\/h2>\n
What damages are recoverable against a defendant\u2019s estate?<\/strong><\/h2>\n