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  Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association


July/August 2003
Vol. 26, No. 5

MCLE Article: Death of a Litigant

Civil claims surviving a litigant's death may send counsel into the unfamiliar territory of probate court

By Stacie S. Polashuk

Stacie S. Polashuk specializes in trust and estate litigation in the San Francisco office of Holland & Knight LLP.


By reading this article and answering the accompanying test questions
, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.


By now, the graying of America is old news. Demographers have long noted the increasing percentage of senior citizens in the American population--a percentage that is currently higher than it has ever been, with all expectations that the trend will continue.1 One ramification of this trend that is of interest to lawyers is the effect that the aging population has on civil litigation. Sad to say, it is now more likely than ever that a party to a civil action will die before commencement of an action or during litigation. This situation creates new challenges for civil litigators who are unfamiliar with probate court and the Probate Code.

Few civil litigators regularly appear in probate court; most use their best efforts to avoid the procedural quagmire of probate. However, if a defendant dies, either before suit is filed or during a pending lawsuit, some action before the probate court is almost always necessary in order for the litigation to proceed. Only in cases in which the decedent is a plaintiff and there is no probate estate can the litigator avoid probate court, but even then, avoidance of the procedures detailed in the Probate Code is not guaranteed. Every litigator must therefore understand that the death of a party will almost certainly demand strict observance to the statutory scheme and time constraints of both the Code of Civil Procedure and the Probate Code.

Unfortunately, the statutory scheme set forth in these two codes does not anticipate every possible scenario. As a result, civil practitioners sometimes face uncertainty in determining how to proceed after a party has died. The safest practice is to follow all the applicable procedures in both codes, even if it may appear at first that a particular procedure is unwarranted or duplicative.2 Doing this will safeguard the interests of clients, and avoid lengthy--and potentially dispositive--collateral litigation.

Analyzing how to proceed with an action when a party dies begins with determining if the claim survives death. Generally, most claims for or against a party survive the death of that party.3 In 1961 the California Legislature--departing from the ancient common law rule based on the maxim "Personal actions die with the person"--expanded the survival statute to include actions for personal torts that do not result in physical injury. These torts include malicious prosecution, false imprisonment, invasion of privacy, and defamation.4 This increase in the type of claims that survive the death of a party remains the law in California today.

Still, there are claims that die with a decedent, and the most common of these are punitive damages claims against a decedent,5 and pain and suffering damages,6 including emotional distress damages,7 claimed by a decedent. There is a clear rationale for the death of these claims: Preventing future misconduct, or compensating for pain and suffering, cannot be achieved if the party is deceased.

Once a determination is made that a claim survives the death of the party, counsel must next ascertain the procedural steps required to initiate or continue the action, by whom or against whom the action can or must proceed, and the applicable statutes of limitations and other time deadlines that must be followed. The deadlines are strictly enforced in order to promote finality in legal affairs associated with death.

Continuing Lawsuits against Deceased Defendants

When litigation has already commenced and the defendant dies before the conclusion of the action, the plaintiff must follow a series of procedures to continue the litigation. Indeed, litigation against a deceased defendant is the most time-sensitive and procedurally burdensome of the actions involving parties who die before the resolution of a claim. In addition, these procedures and time limits change if the litigation is already being defended by the decedent's insurer and the complaint only seeks recovery within the policy limits. Plaintiffs' counsel therefore must be particularly familiar with proper procedure, lest they risk forfeiting a client's cause of action.

In cases not involving a tendered claim to an insurer seeking payment within the policy limits, the first step is to substitute the decedent's "representative" into the pending lawsuit after following the appropriate creditor's claim procedures. The representative usually is the personal representative of the decedent's estate but can be, under very limited circumstances, the successor in interest. The plaintiff must file a motion with the court in which the action is pending that requests the court to substitute the decedent's representative into the action in place of the decedent.8

At the time the motion for substitution is filed, the plaintiff must show the court that it has already complied with the creditor's claim procedures set forth in the Probate Code.9 The compliance process is relatively easy: The plaintiff must file the requisite Judicial Council form in the probate proceeding.10 Merely informing the representative of the pending lawsuit is insufficient; a creditor's claim must be filed. This process puts the personal representative and the probate court on notice of the plaintiff's claim and ensures that the representative of the estate and the probate court are notified of all claims within a reasonable period. In this way, the estate can be expeditiously settled and distributed to legatees or heirs.11 The creditor's claim procedures also allow the representative to quickly ascertain the obligations against the estate and the assets at issue.12

There are certain situations that do not require the filing of a creditor's claim prior to proceeding with an action against a decedent.13 Generally, however, if the plaintiff's claim is a demand for payment for a liability based in "contract, tort, or otherwise," a creditor's claim is required.14 If there is any doubt as to whether the claim falls within an exception, it is wise to file a creditor's claim, since there is no harm in doing so.

A creditor's claim need not be filed when the creditor is continuing a lawsuit to establish the decedent's liability if the decedent's liability was protected by insurance, the insurance company is defending the action, and the creditor seeks recovery within the policy limits.15 In this circumstance the action can be continued without joining the personal representative or successor in interest as a party.16 However, any judgment is only enforceable against the insurer. If the creditor seeks damages outside of the policy limits, then the creditor must comply with all of the same procedures that would apply if the claim was not insured.17 Likewise, if an insurer seeks reimbursement for a deductible or any other amounts, the insurer must file a claim and comply with the procedures of suing a decedent's estate.18

Plaintiffs who must file a creditor's claim are required to do so within either four months from the date that the letters of administration are first issued to a personal representative or 60 days after notice of administration is given to the creditor--whichever is later.19 After the creditor's claim is filed and served on the representative, the representative must either accept it, accept it in part and reject it in part, or reject it completely. If the representative takes no action, the creditor has the option to deem the claim rejected on the 30th day after the date it was filed.20 Within three months of the date of rejection, the plaintiff must move the court in which the action is pending for an order substituting the personal representative in the action.21 If the plaintiff fails to comply with any of these procedures, recovery is barred against the decedent's estate.22

The plaintiff must also keep in mind that the statute of limitations changes when the defendant is a decedent. Code of Civil Procedure Section 366.2 sets forth a time limit of one year from the date of death for filing any type of claim, "whether arising in contract, tort or otherwise, whether accrued or not accrued" against a decedent, regardless of what the applicable statute would have been had the decedent survived.23 The creditor's claim procedure tolls this one-year time bar, but most equitable principles do not. The exception is equitable estoppel, which acts as a bar to the assertion of the statute of limitations as a defense rather than a tolling device.24

Thus, all creditor's claims should be filed within one year of death to toll the statute. This is a harsh truth that bears repeating: A plaintiff who does not file a claim in probate court within one year of a decedent's death stands to lose the ability to recover forever against the decedent's estate.

The case of Bradley v. Breen25 is illustrative. In Bradley, the former wife of a convicted child molester was sued by the victim for "aiding and abetting" the molestation. The convicted child molester had died in prison prior to the suit, so the ex-wife filed a cross-complaint for indemnity against the decedent's estate. One would think that, at the very least, justice would require the estate of the perpetrator to contribute to the victim's recovery. But the ex-wife did not file a claim in the decedent's probate estate within one year of death, and thus recovery was barred, despite the fact that she was not sued for many years after his death and did not even have a claim to assert within the one-year period.

When courts have applied the principle of equitable tolling, they have done so only in cases in which the party attempting to utilize the statute of limitations defense has unclean hands. For example, in the case of Battuello v. Battuello,26 the plaintiff's father promised to leave the plaintiff the family vineyard after both the father and the plaintiff's mother died. The plaintiff relied on this promise; for example, he went to college for the purpose of learning the formal aspects of running a business. After his father died, the plaintiff learned that his father had changed his trust, and the vineyard was not necessarily going to be left to the plaintiff. The plaintiff intended to object in the trust proceedings and properly proceed with an action on his claim. However, he and his mother entered into a settlement agreement in which his mother agreed to fulfill his father's promise and give him the vineyard by the end of 1996.

In reliance on his mother's promise, the plaintiff refrained from making an objection to the trust. The plaintiff's mother then repudiated the settlement agreement, and the plaintiff filed suit to enforce his father's promise. The plaintiff's mother alleged that the claim was time-barred based on the one-year statute of limitations for bringing a claim against the father's estate or its assets. The court found that the plaintiff's mother was equitably estopped from asserting the statute of limitations because, had she not entered into the settlement agreement, the plaintiff would have filed his objections in a timely fashion. Obviously, the circumstances in this case are extreme, and the doctrine will likely be applied only on rare occasions.

The case law interpreting Code of Civil Procedure Section 366.2 is fact-specific and only focuses on whether the statute applies to those facts.27 One could argue that this statute also governs the time in which a plaintiff can substitute a decedent's estate as the defendant in the stead of the decedent. Technically, an action against the decedent's representative does not "commence" until the court grants the motion substituting the representative for the decedent. Therefore, to continue an action against a decedent, the best practice is to file a creditor's claim in the decedent's estate within one year of the decedent's death. The California Legislature decided to set relatively short periods of time for taking action against a representative of the decedent's estate to "protect[] a decedent's heirs, legatees, or beneficiaries from stale and unknown claims"28 and thus "effectuate the strong public policy of expeditious and final estate administration."29

Given the one-year time bar, a savvy probate lawyer for the decedent's estate may deliberately prolong the opening of a probate. Therefore, if the one-year deadline from the date of death is approaching and no probate has been opened, the wise approach for the plaintiff is to open a probate proceeding as a creditor and file a timely creditor's claim.30 It would be risky for the plaintiff to wait until a personal representative is appointed or until the decedent's family takes action and opens a probate. The decedent's family might be intentionally delaying the opening of a probate in order to trigger the one-year time bar and avoid all creditors, thereby increasing the family's inheritance.31

Initiating Lawsuits against Decedents

The procedures and time deadlines required to initiate a lawsuit against a decedent are similar to those mandated for continuing an already-pending action. If a cause of action survives a decedent's death and a lawsuit was not filed prior to death, it may be filed against the decedent's personal representative (or, more rarely, a successor in interest) or against the decedent's insurer if the claim is covered by the decedent's insurance.32

If the claim is covered by insurance, the plaintiff may commence an action against the estate without the need to join in the personal representative, and the plaintiff need not file a creditor's claim.33 However, the summons must be served either on a person designated in writing by the insurer or, if none, on the insurer itself.34 Therefore the plaintiff must have knowledge of the decedent's insurer and of the policy prior to commencing the action if the plaintiff wishes to avoid serving a personal representative and filing a creditor's claim. Also, the one-year time bar applicable to all other actions against decedents' estates does not apply to this type of action. The action may be brought within one year after the expiration of the limitations period otherwise applicable had the defendant not died.35 However, if the plaintiff opts to take this route, the judgment is only enforceable against the insurer and is only enforceable for the amount of the policy. If the plaintiff seeks amounts above the policy limits, the plaintiff must comply with all procedures and time constraints that any other plaintiff must.36

If the plaintiff seeks to recover against assets of the estate rather than against an insurance policy or seeks to recover amounts outside of the insurance policy limits, the plaintiff must first comply with the creditor's claim procedures prior to suing the personal representative.37 Once the creditor's claim is rejected or deemed rejected, the plaintiff must file suit within three months of the rejection or the suit will be time barred.38 These are the same time requirements that apply to continuing an existing suit against a decedent.

Also applicable is the one-year statute of limitations in Code of Civil Procedure Section 366.2, which bars any action brought against a decedent after one year from the date of death, regardless of what the limitations period would have been had the defendant not died.39 Therefore, if no one else opens a probate, the proposed plaintiff must take the initiative and open a probate as a creditor, so that the plaintiff can ensure compliance with the creditor's claim statutes as a prerequisite to bringing the lawsuit.40

Once the plaintiff meets the many procedural requirements and the representative rejects the creditor's claim, the plaintiff may file suit in any county in which the action could have been commenced had the defendant not died or in the county in which the probate estate is being administered.41 Once suit is filed, the plaintiff must file a notice of pendency of the action in the probate proceeding along with a notice of service on the personal representative or personally serve a summons and complaint on the personal representative.42 This requirement alerts the probate court and the personal representative that all action in the probate court must be taken in light of pending litigation that could affect the decedent's estate and assets. Distributions from the estate, for example, must be examined in conjunction with the litigation and its potential impact on them.

Once again, time is of utmost importance when a party dies. Probate Code Section 9354 states: "Any property distributed under court order, or any payment properly made, before the notice is filed and given [to the probate court that an action is now pending against the estate in another court] is not subject to the claim or judgment. The personal representative, distributee, or payee is not liable on account of the prior distribution or payment."43 This means that the creditor cannot seek recovery on monies already distributed by the estate. Therefore, the value of the estate could be significantly diminished if a plaintiff delays taking action.44 Distributions from the estate could be made prior to the commencement of litigation, and those assets cannot be part of the plaintiff's recovery.45

Continuing or Initiating Lawsuits on Behalf of Decedents

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."46 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.47 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.48

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.49 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.50

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.51 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.52

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.53 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 U.S. Department of Health and Human Services, Administration on Aging, A Profile of Older Americans: 2001, at 2.
2 For example, the statutory scheme governing litigation against a decedent is based on the plaintiff taking action in a probate estate. However, many individuals do not leave sufficient assets to necessitate the opening of a probate or allow for recovery. Frequently in these circumstances a decedent leaves only a trust estate. Hence, it might seem unnecessary to sue a probate estate (or open a probate for the sole purpose of filing a creditor's claim) when the estate has nominal funds and the trust will likely be the true source of recovery. The Probate Code has a trust claim procedure, but it is arguable that filing an action against the trustee perfects a claim to the decedent's assets. In such cases, it is prudent to follow the probate claim procedure and either join the trustee as a party or obtain a judgment against the decedent's estate and then enforce it against the trustee and trust assets, to the extent allowed by law.
3 Code Civ. Proc. §377.20.
4 Sullivan v. Delta Air Lines, Inc., 15 Cal. 4th 288, 298-99 (1997) (citing 3 California Law Revision Commission Report F5-6 (1961)).
5 Code Civ. Proc. §377.42. See generally Code Civ. Proc. §§377.40 et seq. for statutes governing surviving causes of action against a decedent.
6 Code Civ. Proc. §377.34. See generally Code Civ. Proc. §§377.30 et seq. for statutes governing surviving causes of action on behalf of a decedent.
7 Neal v. Farmers Ins. Exch., 21 Cal. 3d 910, 920 n.3 (1978).
8 Code Civ. Proc. §§377.40, 377.41.
9 Prob. Code §§9000 et seq.; see also Prob. Code §9370. An exception to this rule applies when a trustee initiates a trust claim procedure (which is very similar to the procedure involving decedents' estates). Prob. Code §19000 et seq. When a decedent does not leave sufficient assets to require a probate proceeding and instead leaves his assets in trust, the Probate Code's trust claim procedure is available but optional. If a probate proceeding has been initiated, then the filing of a creditor's claim in the probate is sufficient to protect the plaintiff/creditor's rights against the trust, to the extent allowed by law. See Prob. Code §§19001, 19006; Dobler v. Arluk Med. Ctr. Indus. Group, Inc., 89 Cal. App. 4th 530 (2001). In fact, if a probate proceeding has been initiated, a trustee is prohibited from initiating the trust claim procedure. Id. at 538. If the trustee elects to follow the trust claim procedure, then the plaintiff/creditor need only comply with the requirements set forth in the trust claim procedure and bring action against the trustee if the trustee rejects the claim. Prob. Code §§19000 et seq. If the trustee does not initiate the trust claim procedure and no estate proceeding has been opened, it is unclear if directly filing an action against the trustee, without opening a probate and filing a creditor's claim in the probate estate, is sufficient to protect the rights of the plaintiff/creditor.
10 Judicial Council Form DE-172.
11 Varney v. Superior Court, 10 Cal. App. 4th 1092 (1992).
12 Wilkison v. Weiderkeher, 101 Cal. App. 4th 822 (2002).
13 Actions that do not require creditor's claims are:
1) Disputes over title to specific property alleged to be included in the decedent's estate. This type of dispute is, by definition, not considered to be a claim.
For an action to be excluded as a claim under the theory that it is a title dispute over specific property, it must truly be a title dispute. For example, a claim that the decedent was contractually obligated to transfer property to the claimant during the decedent's lifetime is not a title dispute.
2) Actions to establish the decedent's liability for which the decedent was protected by insurance, unless the plaintiff seeks amounts outside the coverage limits or the insurer seeks reimbursement.
3) Actions to enforce a lien against the property that is subject to the lien, even if it is part of the decedent's estate, such as a mortgage--so long as the lien holder waives all other recourse against other property in the decedent's estate.
4) Actions against a person to whom property was distributed from the estate without the estate first having followed the notice requirements to creditors. See Prob. Code §§9000-9392.
14 Prob. Code §9000.
15 Prob. Code §9390.
16 Prob. Code §550.
17 Prob. Code §§552, 9390(b).
18 Prob. Code §§552, 9390(c).
19 Prob. Code §§9100 et seq.
20 Prob. Code §9256.
21 Prob. Code §9370.
22 Id.; Dobler v. Arluk Med. Ctr. Indus. Group, Inc., 89 Cal. App. 4th 530, 535 (2001).
23 Code Civ. Proc. §366.2.
24 See Anderson v. Anderson, 41 Cal. App. 4th 135, 140 (1995); Bradley v. Breen, 73 Cal. App. 4th 798, 805-06 (1999); Battuello v. Battuello, 64 Cal. App. 4th 842, 846 (1998); Dawes v. Rich, 60 Cal. App. 4th 24, 36 (1997).
25 Bradley, 73 Cal. App. 4th 798, 805-06.
26 Battuello, 64 Cal. App. 4th 842.
27 See, e.g., Bradley, 73 Cal. App. 4th 798; Battuello, 64 Cal. App. 4th 842.
28 Dobler v. Arluk Med. Ctr. Indus. Group, Inc., 89 Cal. App. 4th 530, 541-42 (2001).
29 Bradley, 73 Cal. App. 4th at 805.
30 Prob. Code §8000 (allowing any interested person to commence probate proceedings for administration); Prob. Code §48 (including a creditor in the definition of "interested person"). If the plaintiff, as creditor, is appointed as the personal representative, the court must rule on the claim. If the court rejects the claim, and the creditor/personal representative files an action, the court must receive the summons and appoint an independent attorney to defend the action. Prob. Code §9252.
31 It is permissible to name the successor in interest rather than a personal representative if a probate is not opened and the assets are transferred without administration. See Prob. Code §§13109 et seq., 13550 et seq., 18201. However, specific rules apply when initiating a lawsuit directly against a successor in interest, and the one-year time bar still applies.
32 Code Civ. Proc. §377.40; Prob. Code §§9350 et seq.
33 Prob. Code §§550, 9390.
34 Prob. Code §552.
35 Prob. Code §551.
36 Prob. Code §554.
37 Code Civ. Proc. §377.40; Prob. Code §9351.
38 Prob. Code §§9352, 9353.
39 Code Civ. Proc. §366.2.
40 Prob. Code §9351.
41 Prob. Code §9354(a).
42 Id.
43 Prob. Code §9354(b).
44 It is always wise for the plaintiff to file a request for special notice in the probate, so that no action can be taken without proper notice to the plaintiff. Prob. Code §§1250-1252.
45 Code Civ. Proc. §377.30.
46 Code Civ. Proc. §377.11.
47 Code Civ. Proc. §377.31.
48 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.
49 Code Civ. Proc. §377.31.
50 Id.
51 Code Civ. Proc. §§377.30, 377.31.
52 Code Civ. Proc. §377.32.
53 Code Civ. Proc. §366.1.

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