Technically, you cannot file a legal complaint or initiate a lawsuit against someone who has died. However, this doesn’t mean you have no recourse if he wronged you in some way or owes you money. You can file some lawsuits against his estate instead.
Your ability to file a complaint depends on the nature of your grievance. For example, a person can’t file a complaint for divorce against a decedent, because his death already ended their marriage. However, you can ask his estate to pay you money he owed you or to reimburse you for money he cost you, such as by breach of contract. First, you must usually file a creditor’s claim with the probate court, advising the court and the estate's executor that you believe the decedent owed you money. If the executor decides to pay you, there’s no need to file a complaint and initiate a lawsuit. If the executor denies your claim because she does not think the decedent's estate should have to pay you, you can file a complaint in probate court and ask a judge to overturn her decision. Some states, such as California, require you to join the executor as a party to the action when you do this. This means naming her and the estate as co-defendants.
If you want to sue a decedent, you generally do not have unlimited time to act. Probate of an estate does not remain open forever, and once it closes, you've lost your recourse. Although deadlines vary by state law, you usually have only a matter of months to make a creditor’s claim for payment. If the executor denies you payment, you then have an additional few months to file a complaint and initiate your lawsuit. If you miss these deadlines, you're barred from pursuing the matter.
If you already filed a complaint against the decedent before he died, the same procedure applies for alerting the court and executor to the existence of your lawsuit. You must file a creditor’s claim within the required time period. Generally, you stand a better chance of the executor paying you if you have an existing lawsuit. An executor might be more suspicious of a claim for money that springs up suddenly after the decedent's death. She might believe you’re suing just because you want a piece of the estate.
Liability of Executor
If you're forced to file a complaint with the probate court because the executor of the state rejected your creditor’s claim, and if you name her as a party to the action, this does not necessarily mean that she must pay you personally out of her own funds. Naming her in the action only protects you if she mishandles the estate in some way. For example, if she distributes the estate's assets to beneficiaries before your lawsuit resolves, and if you then win your lawsuit but there’s no money left in the estate to pay you, she would be liable. However, if the decedent's estate is insolvent and simply does not have enough money to pay his creditors, you probably will not receive your money. In this case, the fact that you named the executor as a party to the action does not mean she has to pay you personally. She has no legal liability for the decedent’s wrongdoing that resulted in your lawsuit.
- New York Life: Overview of the Probate Process
- Washington State Probate: Is a Probate Necessary?
- Los Angeles County Bar Association: Death of a Litigant
- Albertson & Davidson: Death Can Be Fatal – How the Death of a Defendant Can Be Fatal to a Lawsuit Too
- Elder Law Answers: What Is Required of an Executor?
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.