Filing an Auto Accident Lawsuit Against a Deceased Defendant

Legally Reviewed and Edited by: Terry Cochran

Sustaining injuries in a motor vehicle accident is traumatic even when all parties survive. But what do you do if the at-fault person dies in the crash or later from some unrelated cause?

While you cannot sue a deceased defendant, you can sue their estate. The estate would be liable for any sums of money owed by the decedent at the time of their death. So, how do you go about suing the deceased at-fault driver’s estate? Starting litigation against a deceased person’s estate adds complexity to the case and requires an experienced attorney to see it through to a successful conclusion.

When Can I File My Lawsuit?

Several steps have to be taken before you may file a lawsuit. The deceased defendant’s estate must have legal standing. Someone must petition for formal proceedings or file an application for informal proceedings in probate court. A personal representative may then be appointed; they are responsible for administering the estate.

What happens if a family member or their attorney does not apply for administration? In that event, the precedent set by the case of Williams v. Grossman means that a creditor, such as yourself, may apply to have an administrator appointed.

If you want to sue the deceased, you must take certain steps. These include petitioning the probate court for the opening of the decedent’s estate and the appointment of a personal representative. You may then file a claim for your personal injury based on the deceased person’s negligence.

The law is quite clear that the appointment of the personal representative must occur before the commencement of proceedings. Therefore, the claimant must ensure that probate administration is commenced before the three-year statute of limitations for personal injury expires.

Once the proceedings are underway in the probate court, the claimant may file their lawsuit and serve all the court documents on the personal representative.

What If I Have to Start the Probate Proceedings?

If you, as the claimant, are forced to start the probate proceedings, you will have to choose whether to apply for informal or formal proceedings. This decision can have a large impact on the successful prosecution of your case.

Consult an attorney with expertise in this area of law when deciding whether to move ahead with formal or informal probate proceedings for a personal injury claim. There are advantages and disadvantages to both.

Informal proceedings are quicker and more affordable. The personal representative is appointed by the probate register, not a judge. However, this route is most appropriate if there is agreement on who should be the personal representative. You may not file this type of proceedings if an interested person has filed an application within 28 days of the death.

Formal proceedings are best where either the deceased did not leave a will, or there is uncertainty as to who the personal representative should be. You may start formal probate proceedings at any time after the death. However, a hearing before the probate court judge is required before an appointment of a personal representative will be made.

You will have to give notice to any interested parties of the hearing. MCL 700.340(3) provides that while formal proceedings are pending, the register shall not act on any application for informal probate of the will.

Will the Personal Representative’s Duty to Give Notice Help Me?

If the statute of limitations for your claim expires before a personal representative is appointed, you will not get any extra time to file your claim. The personal representative must provide notice to creditors. The deceased’s creditors may submit claims to the personal representative within four months of the notice to creditors. However, this is only allowed if the claim has not been barred by another statute of limitations.

If the statute of limitations relating to the claim has not expired, the notice to the creditors effectively stops time running until the end of the four-month period. This extends the time to file the claim by four months.

Filing an auto accident lawsuit

What Can I Claim For?

If you are seeking compensation for a deceased at-fault driver’s estate, you can pursue a claim for the same types of damages as if they were alive. These would include compensation for pain and suffering, physical impairment, permanent disfigurement, and medical bills (past and future).

Consult an Experienced Attorney About Your Claim Against a Deceased Defendant

Starting litigation against a deceased defendant is complex and requires the guidance of a skilled attorney. Personal injury attorneys at the law firm Cochran, Kroll & Associates, P.C. can answer your questions and advise on the legal process for filing a car accident claim, wrongful death lawsuit, or communicating with your insurance company.

Our contingency fee basis means we only get paid if we win your case, so there is no financial risk to you to get started. Call our law firm today at 866-MICH-LAW and schedule your no-obligation, free case evaluation.

Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.

Thomas has a law degree from the University of Nottingham. He practiced law for 20 years before working in Dubai in the financial sector for 3 years. He now writes on financial and legal topics.

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