Suing An Estate Executor For Personal Injury In San Jose
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FAQ
Can You Sue a Dead Person? No, you legally cannot sue a dead person. However, you can file a lawsuit and/or creditor claim against their estate to request compensation from the deceased's assets.
Under CCP 366.1, as long as the statute of limitations had not yet expired by the time of the person's death, a survival action may be brought either within six months after the victim's death or two years from the date of the injury, whichever comes last.
Currently, the California Code of Civil Procedure provides that a pending action does not abate by reason of the death of a party if the cause of action survives,4 and a cause of action for or against a person survives subject to the applicable limitations period (unless otherwise provided by statute).
The 'one action' rule is a California legal mechanism designed to protect defendants in wrongful death cases from being sued over and over again by different family members. Rather than filing multiple lawsuits, the potential heirs must join together to file only one action in court.
Under the LRPMA 1934, eligibility very much depends on if the deceased left a Will. If they did, then the Executor of their Estate, named in the Will, is eligible to bring or continue a claim. If the deceased did not leave a Will, then a set list is followed as outlined in the Administration of Estates Act 1945.
See Code of Civil Procedure Sections 337.40 through 377.42; and Probate Code Sections 550 through 554. When a party to a lawsuit dies, the opposing party must take action quickly or their lawsuit may be terminated. Of course, a dead person cannot be sued.
Can you make a claim on behalf of someone else? In short, yes: a parent or guardian can make a claim on behalf of an injured child. They have until the child's 18th birthday to make a claim. The child then has a further three years to make a claim themselves, i.e. until they are age 21.
The personal representative can bring a claim for losses on behalf of the estate. It is also possible for anyone who was dependent on the deceased (financially or otherwise) to bring a claim in their own right. All claims relating to the same incident would need to be brought at the same time, as one.
