What to Do When Probate Meets Civil Litigation 

Civil litigation and the probate process: both can potentially drag out for months, if not years; both cost those involved dearly in both financial and emotional terms; both can be made less likely, or less painful, by careful planning and consultation with skilled legal representation.

Yet, even the best-laid plans can go awry; sometimes probate and litigation meet head-on. There are times in which one’s inheritance might include a lawsuit that was ongoing at the time of departed’s passing. Or it may be that a new suit is filed against the decedent’s estate, causing an unexpected complication for the executor and the survivors.

If you are the executor for the estate of a parent, spouse, or other loved one, a lawsuit is the last thing you may want—but it should not be the last thing you expect.

When You Inherit Ongoing Litigation 

A lawsuit does not end when a defendant—the party being sued—dies. In most cases where litigation was ongoing at the time of the defendant’s death, the suit survives. The court hearing the suit may issue a stay until the probate court recognizes a personal representative for the estate—either the executor named in the will, or another party determined by probate authorities. Thereupon, the civil litigation court will typically decree a substitution of party, naming the personal representative for the decedent’s interests as a party to the suit.

Punitive damages, which have the aim of punishing a defendant and deterring future undesirable behavior, can no longer be applied, since the defendant is now beyond the reach of human reward and punishment.

When Someone Sues the Estate 

If the personal representative knows that the deceased owed money to one or more individuals, the representative must send out a death notice to the creditors within a few months of the deceased’s passing. The creditors will be notified about the time frame they have in which to file a claim against the estate. Even if a creditor does not receive a death notice, the creditor may still file a claim.

If the deceased died as a result of an accident in which others were injured, the injured parties may file a claim against the estate. In Massachusetts, for example, plaintiffs have three years from the date of an auto accident to file a claimed, even against the estate of a deceased defendant.