What happens if a loved one passes away while being involved in a lawsuit?
A family member passes away, and they are involved in a lawsuit or their estate needs to sue someone. What are the steps they need to take to file such a suit? The deceased person’s estate must be probated. Probate appoints a representative for the estate, called the executor or administrator. This person can then legally step into the shoes of the deceased person and file suit against another party.
What kind of documentation is required to sue on behalf of an estate?
Once probate begins, an Executor or Administrator will be appointed and provided with letters testamentary or letters of administration. The Executor/Administrator must take an oath and possibly post a bond. The letters enable them – sometimes, permission of the Court is required -- to recover monies, property, or sue for injury and other matters. The letters allow the Executor/Administrator to take charge of the estate and recover and disperse the funds as determined by the Will or law allowed.
What happens when a person dies and have claims that they are entitled to?
When someone dies, their estate may have claims against another party. These claims can be for things such as wrongful death, breach of contract, or any other cause of action where something is owed to the deceased. In order to recover, a person must probate the estate of the deceased. After probate is granted and an administrator is appointed, the estate may file suit against another party to begin to recover losses.
Who takes over after the party is deceased?
Someone can be involved in a lawsuit when they pass away. For example, assume two people have a business deal and things sour – so one person sues another. Further assume the person who brought the lawsuit (plaintiff) dies. How does the plaintiff continue the lawsuit? Technically, the plaintiff’s estate inherits his interest in the lawsuit. The estate must inform the Court within 90 days with a notice of death and a copy of the death certificate while also naming a successor to be appointed. Failure to do so may cause the lawsuit to be dismissed.
Under these circumstances, the plaintiff can file for probate in the proper Court (which may or may not be the same, and ask the Judge to appoint a temporary administrator. This person may then step into the shoes of the deceased and continue the lawsuit in which the deceased is a plaintiff until the probate Court officially hears the probate case and appoints a permanent executor or administrator.
Contact An Experienced Dallas Estate Planning Attorney
Whether you're planning your own estate, trying to understand a parent's estate plan, caring for an aging relative or facing probate, our experienced Dallas estate planning and probate attorney can help you navigate the process and safeguard your family's future. Contact Colin Smith Law today to schedule an appointment for a free initial consultation.