Skip to content
  • Latest
2024 Success Stories
  • Call Today: 310.444.9060
  • Probate Services
    ▼
    • Trust & Will Disputes
    • Fiduciary Misconduct
    • Property Disputes
    • Elder Financial Abuse
    • Trust & Estate Administration
    • Conservatorship
    • Guardianship
    • Probate Appeals
  • Who We Help
    ▼
    • Executor / Administrator
    • Trustee
    • Beneficiary
    • Spouse
    • Power of Attorney
    • Conservator
    • Guardian
    • Creditor
  • Our Firm
    ▼
    • Attorneys
    • Staff
    • Careers
    • 10th Anniversary
  • Learn
    ▼
    • Blog
    • Case Studies
    • Newsletters
    • Testimonials
    • Whitepapers
  • Request a Consultation
  • Probate Services
    • Trust & Will Disputes
    • Fiduciary Misconduct
    • Property Disputes
    • Elder Financial Abuse
    • Trust & Estate Administration
    • Conservatorship
    • Guardianship
    • Probate Appeals
  • Who We Help
    • Executor / Administrator
    • Trustee
    • Beneficiary
    • Spouse
    • Power of Attorney
    • Conservator
    • Guardian
    • Creditor
  • Our Firm
    • Attorneys
    • Staff
    • Careers
    • 10th Anniversary
  • Learn
    • Blog
    • Case Studies
    • Newsletters
    • Testimonials
    • Whitepapers
  • Request a Consultation
  • Probate Services
    • Trust & Will Disputes
    • Fiduciary Misconduct
    • Property Disputes
    • Elder Financial Abuse
    • Trust & Estate Administration
    • Conservatorship
    • Guardianship
    • Probate Appeals
  • Who We Help
    • Executor / Administrator
    • Trustee
    • Beneficiary
    • Spouse
    • Power of Attorney
    • Conservator
    • Guardian
    • Creditor
  • Our Firm
    • Attorneys
    • Staff
    • Careers
    • 10th Anniversary
  • Learn
    • Blog
    • Case Studies
    • Newsletters
    • Testimonials
    • Whitepapers
  • Request a Consultation

Home » Blog » What To Do When a Party to Litigation Dies? Part 2 of 2

Last Updated: August 27, 2024

What To Do When a Party to Litigation Dies? Part 2 of 2

Search

This article, Part 2 of a 2-part series, will discuss what a plaintiff must do when a defendant dies. Part 1, previously featured in the last quarterly issue, discussed what to do when a plaintiff dies.

Step 1: Who Has Legal Standing to Litigate in Place of the Defendant-Decedent?

For defendant-decedents, subject to the California Probate Code sections[i] governing creditor claims, “a cause of action against a decedent that survives may be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest.”[ii] A decedent’s “personal representative” refers to the person or entity formally appointed by the Probate Court in the decedent’s estate proceeding, and includes, interalia, an “executor, administrator, administrator with will annexed, [or] special administrator.”[iii] A decedent’s “successor in interest” means “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 property that is the subject of a cause of action.”[iv]

Step 2: How Does Someone Commence or Maintain an Action Where the Defendant Has Died?

When a defendant passes away during an action which has already commenced but before the conclusion of that action, plaintiff’s counsel must act quickly to preserve his or her client’s claims against a defendant-decedent. “On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s 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.”[v] Failure to comply with these procedural requirements will bar plaintiff’s recovery against the defendant-decedent’s estate.

In addition to the filing of a Motion in the pending action, the plaintiff must file a “creditor’s claim” in the decedent’s estate probate proceeding. Otherwise, the decedent’s personal representative and the probate court will not have sufficient notice concerning the pending claim. And the timing of the creditor’s claim is crucial in order for a plaintiff to recover from a defendant-decedent’s estate, because not only does a plaintiff need to protect his or her interest in the defendant-decedent’s estate’s assets prior to distribution to the estate’s beneficiaries, but there are also strict time limitations on the filing of these creditor’s claims, as follows:

When a creditor’s 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’s estate proceeding), or 60 days after notice of administration of the decedent’s estate is given to the creditor, whichever is later.[vi] The decedent’s personal representative may accept the creditor’s claim, accept in part and reject in part, or reject the claim entirely.[vii] And where a decedent’s personal representative takes no action concerning plaintiff’s creditor’s claim, then the claim can be deemed rejected on the 30th day after it was filed.[viii] If a creditor’s claim is rejected, the plaintiff then has 90 days to move the court in the pending action to substitute in the defendant-decedent’s personal representative into the pending litigation, or to initiate new litigation to enforce the claim (if the subject matter of the creditor’s claim is not fully covered by any pending litigation.)[ix]

Finally, a one-year creditor’s claim statute of limitation from decedent’s date of death applies regardless of the status of decedent’s estate proceeding or the appointment of decedent’s personal representative, so if no decedent’s estate probate proceeding has been initiated, or no personal representative appointed, then plaintiff’s counsel should open probate themselves so that a creditor’s claim can be timely filed within one-year of the decedent’s passing.[x]

Step 3: What Damages are Recoverable Against a Defendant-Decedent?

For defendant-decedents, “all damages are recoverable that might have been recovered against the decedent had the decedent lived except damages recoverable under Section 3294 of the Civil Code or other punitive or exemplary damages.”[xi]

* * * * *

In sum, time is of the essence to ensure that a party’s rights and claims are not barred from recovery. The death of a defendant-litigant does not have to mean the end of the action. But given the complex interplay that must occur between the Probate and Civil procedure statutes, it is essential to engage a practitioner well versed in both arenas.

 

_____________________

[i] Cal. Prob. C. §§ 9000, et seq.

[ii] Cal. Code Civ. Proc. § 377.40.

[iii]  Cal. Prob. C. § 58(a).

[iv] Cal. Code Civ. Proc. § 377.11.

[v] Cal. Code Civ. Proc. § 377.41.

[vi] Cal. Prob. C. §§ 9100, et seq.

[vii] Cal. Prob. C. § 9250.

[viii] Cal. Prob. C. § 9256.

[ix] Cal. Prob. C. § 9370.

[x] Cal. Code Civ. Proc. §§ 366.2 and 366.3.

[xi] Cal. Code Civ. Proc. § 377.42.

Share Post
PrevPreviousJoshua Taylor Promoted to Partner
Read NextShawn Kerendian Selected to Act as PVP Attorney & Settlement OfficerNext

Related Articles

Businessperson analyzing document at desk. Close-up of a professional auditor or lawyer reviewing a lengthy paper report in office setting
Can Creditors Go After a Trust Without a Probate Proceeding?
Read More
shutterstock_2304763731-cropped
2024 Success Stories
Read More
Signing contract and buying agricultural machines and farming equipment
Restoring Ownership of Home — and Justice — for Financially Exploited Elder
Read More
Close up of hands using phone
Shutting Down a Scandal: Protecting a Son’s Legacy From Influencer’s Social Media Attacks 
Read More
talking with trustee
Keeping the Peace in Decades-Old Family Feud
Read More
senior caucasian man open mail letter sign contract document at home
Securing Multimillion-Dollar Settlement for Nephew of Hollywood Icon Without Litigation
Read More
Angry neighbours having argument near fence outdoors
Using a Summary Judgment Motion to Shut Down a Baseless Trust Dispute
Read More
Contract, signature and attorney consulting a client in his office with legal paperwork or agreement
Safeguarding Daughter’s Inheritance From Trust Mismanagement
Read More
Contesting a Life Insurance Beneficiary: Rules to Know
Read More
Subscribe to The Keystone Quarterly  

Stay up to date with the latest news in the exciting world of probate law through our quarterly newsletter, The Keystone Quarterly. 

Each issue provides insight into the latest probate developments, delves into some of Keystone’s more interesting cases, and gives important updates about our firm. The Keystone Quarterly is a must-read for attorneys and clients alike.

Linkedin Instagram Facebook
Contact
  • 11300 West Olympic Blvd.
    Suite 910
    Los Angeles, CA 90064
  • 310.444.9060
Contact Us
Linkedin Instagram Facebook
Company
  • Our Firm
  • Attorneys
  • Staff
  • Careers
  • 10th Anniversary
Probate Services
  • Trust & Will Disputes
  • Fiduciary Misconduct
  • Property Disputes
  • Elder Financial Abuse
  • Trust & Estate Administration
  • Conservatorship
  • Guardianship
  • Probate Appeals
Who We Help
  • Executor / Administrator
  • Trustee
  • Beneficiary
  • Spouse
  • Power of Attorney
  • Conservator
  • Guardian
  • Creditor
Learn
  • Blog
  • Case Studies
  • Newsletters
  • Testimonials
  • Whitepapers
  • Terms of Use
  • Privacy Policy
  • Cookie Policy
  • Sitemap
  • Terms of Use
  • Privacy Policy
  • Cookie Policy
  • Sitemap

©2025 Keystone Law Group, P.C. All rights reserved.

This website is for general information purposes only and is not intended to constitute legal advice. Connection to this website, and communication to this law firm via email or other electronic transmission do not constitute an attorney-client relationship with Keystone Law Group, P.C. unless a separate written agreement is signed by you and Keystone Law Group, P.C. as to the nature of any relationship and the amount to be charged for the intended legal services.

Manage Cookie Consent
We use technologies like cookies to store and/or access device information. We do this to improve browsing experience and to show personalized ads. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage {vendor_count} vendors Read more about these purposes
View preferences
{title} {title} {title}