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What Do I Do If Defendant in Case Has Died?

When a Defendant dies prior to, or during litigation, it substantially affects the procedures a Plaintiff must utilize to satisfy its claim. Whether the Defendant dies before litigation, during litigation, or after a judgment has been entered, the procedures of California’s Probate Code must be followed.

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Proceeding Against a Dead Party’s Estate

When a Defendant dies in the middle of litigation, the Plaintiff’s claims do not simply vanish or “abate.” The Plaintiff may continue its claims against the Decedent’s estate. However, in order to do so, a Plaintiff must comply with the requirements of California’s Probate Code.

The first step in maintaining an action against a Decedent’s estate is to file a “creditor’s claim” against the Decedent’s estate. This claim must be made either: (1) within four months after the date letters are issued to a personal representative, or (2) within sixty days after the date notice of administration is sent to the creditor.  Failure to file a creditors claim within these timelines forever bars a creditor from recovering against the property of the Decedent.

If the “creditor’s claim” is accepted, the Decedent’s estate will pay the claim out of the assets of the estate.  If, however, the claim is rejected, the Plaintiff must file a motion with the Court to substitute in the Decedent’s estate as a party. Thereafter, the Decedent may pursue its claims against the Decedent’s estate.

Collecting A Judgment Against a Decedent’s Estate

What if the Defendant in your case dies after you obtain a judgment against them, but before you are able to collect? In such cases, the provisions of the Probate Code, rather than the Enforcement of Judgments Law apply.  Accordingly, ordinary collection mechanisms cannot be used.

Where a judgment debtor dies, the judgment creditor must submit a creditor’s claims for the judgment amount against the Decedent’s estate. The probate code provides that once such a claim is issued, the estate should pay the claim within the ordinary course of the administration of the estate.

Limited Exceptions

In divorce cases, where a judgment debtor dies after a judgment of dissolution has been entered, the family court retains jurisdiction to adjudicate collateral issues including property rights and attorney fees. In such circumstances, a party must substitute the Decedent’s estate into the action in order for the divorce case to proceed. If no judgment of dissolution has been entered by the time of death, however, the divorce action “abates” and the family Court can make no further orders.

Where no estate is set up, a Plaintiff can proceed against the Decedent’s surviving spouse under the provisions of Probate Code section 13550.  This exception comes with the limitation that the Plaintiff can only recover up to the fair market value of the sum of one-half of the community property belonging to the surviving spouse, and the Decedent’ separate property that passes to the surviving spouse without administration.

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