Law Offices Of Thomas Sciacca, PLLC

Blog Executor Fiduciaries Litigation

What Happens if I Drop Dead in the Middle of a Lawsuit?

{Read in 5 Minutes}  As a Trusts and Estates attorney, I’m used to people dying. It’s a fact of life and a big part of my practice. I write Wills for people as part of their overall Estate plan. But I also handle probate and administration proceedings when somebody dies. However, sometimes other lawyers’ clients die too. For example, maybe a person who is the plaintiff in the middle of a personal injury lawsuit dies before the litigation is resolved. Or maybe someone is a defendant and they are being sued for any number of reasons. What happens to that underlying lawsuit when a party dies? 

In New York, the answer is that the Court will substitute the fiduciary of one’s Estate as a party. The fiduciary may be an Executor or an Administrator — really anyone who holds Letters from the Surrogate’s Court will become the new party of record.

That attorney can notify the Court of the person’s death, which in turn will likely result in the Court staying (pausing) the proceeding for a certain number of days. This means nothing will go forward in the proceeding, regardless of where it is procedurally until they have dealt with the death of a party.

1. Contact the attorney who was representing the deceased. 

If you are the Executor or Administrator of an Estate of someone who has died in the midst of pending litigation, what do you do?

2. Apply for Letters of Administration or Letters Testamentary from the Surrogate’s Court. 

The Surrogate’s Court is a very quick and efficient court, which means that you can go into Court once you have a death certificate, and you can apply to become the fiduciary of the Estate. Even if you cannot complete the whole Estate process, you can move forward in the pending lawsuit. 

For example, if you are the nominated Executor in a Will, you can at least file a Petition. But if you’re the petitioner in a probate proceeding, maybe you have the original Will, and you can identify all of the next-of-kin, but you’re unable to quickly serve a Citation upon everybody because they live abroad. Or, maybe a party plans to challenge the Will

Even in these scenarios, the Court might be able to appoint you as the Preliminary Executor so that you can immediately turn your attention to the other litigation, taking the place of the deceased party while you litigate in the Surrogate’s Court.

3. Go back to the Court hosting the other litigation. 

Speak to the attorney who was representing the deceased. Try to decide whether you wish to hire the same attorney, continuing the representation, or start fresh. Present that attorney with a Certificate of Letters of Administration, which you can order from the Cashier’s Department of your local Surrogate’s Court. The attorney can then let the judge presiding over that trial or over that litigation, know that there is a fiduciary of the Estate appointed and that the proceeding can go on as normal.

4. There may be strings attached. 

Depending on what sort of Letters you hold from the Surrogate’s Court, there may be a restriction against you settling the case, if settling is in the cards. Some Courts will make you start another proceeding called a compromise proceeding. If, for example, the deceased died of an injury that was the subject matter of the other lawsuit, further proceedings may be necessary to determine which beneficiaries or next-of-kin are going to inherit, which portion of the settlement award. 

Like anything else, it’s important to get lots of advice to make sure that you do things right. In addition to consulting a Trust and Estates lawyer such as myself, speak to the attorney handling the other lawsuit quickly. Really, the sooner, the better. You don’t want a situation where the Court doesn’t know that a party is deceased and you wind up losing the lawsuit simply because the parties, or the Court, thought that the dead party had lost interest. 

Communication and working with your counsel is key.

For more information on this topic, please contact me