Initiating Lawsuits Against a Deceased Defendant’s Estate in Probate Court is Time-Sensitive

Why Time Is Of The Essence When It Comes To Probate Issues

Loren M. Lopin, Trusts & Estates, P.C.

In a recent probate case in which I represented the estate, a family law attorney unfamiliar with the complexities of the probate court, filed a claim on behalf of a creditor against the probate estate one year and one month following the decedent’s death. The suit was barred under Code of Civil Procedure §366.2 for failure to file within one year of the decedent’s death. To avoid falling into the same traps that befell this family law attorney, read on about how best to initiate suit against a deceased defendant in the probate court a world of its own, where most civil litigators are unfamiliar with probate court and the probate code.

If a plaintiff’s claim is a demand for payment for a liability based in contract or tort, a creditor’s claim is required to be filed in probate court first. If the plaintiff seeks to recover against assets of the estate, the plaintiff must first comply with the creditor’s claim procedures prior to suing the personal representative. This puts the personal representative and the probate court on notice of the plaintiff’s claim and ensures that the personal representative of the estate and the probate court are notified of all claims within a reasonable period. It also allows the personal representative to quickly ascertain the obligations against the estate and the assets at issue.

Once the creditor’s claim is rejected, the plaintiff must file suit within three months of the rejection or the suit will be time barred (Probate Code §9370). The one-year statute of limitations in Code of Civil Procedure §366.2 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. 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 bring the lawsuit. 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.

Given the one-year time bar, an experienced probate attorney for the decedent’s estate may deliberately delay the filing of a probate. Therefore, if the one-year deadline from the date of death is approaching and no probate has been opened, the best approach for the plaintiff is to open a probate as a creditor and file a timely creditor’s claim. 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.

Once suit is filed, the plaintiff must file a notice of service on the personal representative. This 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. Any potential distribution from the estate must be examined in conjunction with the litigation and its potential impact. Again, time is of the essence when a defendant dies. Probate Code §9354 states, “Any property distributed under court order, or any payment properly made, before the notice is filed and given 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.” This means that distributions from the probate estate could be made prior to the commencement of litigation, and those assets cannot be part of the plaintiff’s recovery.

For more information on probate or probate litigation contact: Loren M. Lopin, Probate Lawyer, Trusts & Estates P.C. (415) 200-4592.