William Sweeney

If a plaintiff dies during litigation, the action will most likely survive the decedent's death, with the most common exception being a claim for damages for pain and suffering. In order to continue the litigation on the decedent's behalf, certain procedures must be followed. Either the personal representative of the decedent's estate or the decedent's successor in interest (if there is no personal representative) may pursue the litigation on behalf of the decedent.

A successor in interest is defined as the "beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action."1 A successor in interest can act only if certain criteria are met. First, no proceeding for the administration of the decedent's estate can be pending in California, and there cannot be a personal representative acting on behalf of the decedent's estate. If a personal representative has already been appointed, only the personal representative has standing to pursue the action on behalf of the decedent.2 Second, the successor in interest must execute and file with the court an affidavit or declaration certifying his or her interest and right to continue the proceeding and providing other specific information as required in the Probate Code.3

In order for either a successor in interest or the personal representative to continue an action on behalf of a decedent, that individual must file a motion with the court in which the action is proceeding, requesting that he or she be allowed to continue the matter in the decedent's stead.4 In granting the motion, the court will allow the proceeding to continue, as long as the action survives death and all other prerequisites are met.5

Of course, the personal representative or successor in interest has the option of choosing whomever he or she desires as counsel. The factors involved in determining whether the personal representative or successor in interest will retain the decedent's former counsel will include counsel's knowledge of and involvement in the case as well as the issue of continuity.

When a plaintiff dies in the middle of a lawsuit, the motion to allow the action to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest is filed in the court in which the action was already proceeding. The litigator chosen to pursue the lawsuit can completely avoid the probate department if probate counsel has been retained to open a probate and administer the estate.

A personal representative or the decedent's successor in interest may also commence an action on behalf of a decedent.6 A successor in interest is obligated to file a declaration or affidavit with the court similar to the one filed when a successor is continuing an action on behalf of a decedent. The successor in interest's affidavit or declaration must certify that no personal representative has been appointed, that no proceeding for the administration of the decedent's estate is pending in California, and that he or she has the interest and right to pursue the action, among other specific requirements.7

So long as the action is one that survives death, the representative may commence the action on behalf of the decedent any time before the later of six months after the decedent's death or within the limitations period that would have been applicable had the person not died.8 This affords the representative at least six months to sift through the decedent's papers and discover, evaluate, and commence action on any claims the decedent might have had but did not initiate prior to death.

The story of the untimely demise of litigants or potential litigants has a clear moral. If a case has been litigated to death (or was about to be filed when one of the parties died), specific procedural actions must be taken quickly. Under these circumstances, the probate court does not provide litigants with the luxury of time.

1 Code Civ. Proc. §377.11.
2 Code Civ. Proc. §377.31.
3 Code Civ. Proc. §377.32. This section sets forth the specific elements that must be included in the affidavit or declaration and other required documentation.
4 Code Civ. Proc. §377.31.
5 Id.
6 Code Civ. Proc. §§377.30, 377.31.
7 Code Civ. Proc. §377.32.
8 Code Civ. Proc. §366.1.

If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all California counties, including Southern California Counties such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing outside of California that have probate matters affecting real and/or personal property in California..

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.

Copyright © 2017, William K. Sweeney, Attorney at Law. All rights reserved.