Consider the following scenario: a wealthy socialite crashes his luxury car into a family sedan driven by a couple and their two young children. The socialite blew through a stop sign and was clearly at-fault, but it resulted in severe and permanent injuries to the passengers in the family vehicle. However, nobody escaped that collision unscathed. Just after the injured family retained an attorney to file a lawsuit, the socialite succumbed to his own injuries from the car accident and died. With the tortfeasor having passed on, it is still possible for the victims to sue and recover?
In Potter v Devine, unpublished per curiam opinion of the Court of Appeals, issued June 20th, 2013 (Docket No. 308878), the Michigan Court of Appeals determined that a deceased person cannot participate in litigation:
- “Pursuant to MCR 2.201(C)(1), “[a] natural person may sue or be sued in his or her own name.” Black’s Law Dictionary (9th ed) defines the term “natural person” as “[a] human being.” Random House Webster’s College Dictionary (1997) defines “human being” as “any individual of the genus Homo, esp. a member of the species Homo sapiens.” Further, definitions of the term “being” include “the fact of existing; existence,” “conscious, mortal existence; life,” “something that exists,” “a living thing,” and “a human being; person.” Random House Webster’s College Dictionary (1997). Applying these definitions, pursuant to our court rules a deceased person cannot be sued as a matter of law. MCR 2.201(C)(1).” slip. op. at 4.
A deceased person cannot sue or be sued. He or she cannot be served with legal process, cannot file or answer a lawsuit and cannot retain an attorney to assist him or her. However, the deceased person’s estate may be sued as it would be liable for any money or property owed by the decedent at the time of death.
The trick here is that the probate estate must legally exist. MCL 700.3104(1) states that “a proceeding to enforce a claim against a decedent’s estate or the decedent’s successors shall not be revived or commenced before the appointment of a personal representative.” A personal representative cannot be appointed unless someone either files an application for informal proceedings or a petition for formal proceedings in the probate court. An action against a decedent is then commenced or maintained by naming the personal representative as the defendant.
“If administration has not been sought by a spouse or other family member, a creditor may seek to have an administrator appointed.” William v Grossman, 409 Mich 67, 81; 293 NW2d 315 (1980). Thus, a plaintiff wishing to sue the decedent “must first petition the probate court for the opening of a decedent’s estate and the appointment of a personal representative, and then the plaintiff may file a lawsuit against the estate for the allegedly tortious conduct of the decedent.” Packard v Brown, unpublished per curiam opinion of the Court of Appeals, issued August 22nd, 2019 (Docket No. 344720). Since the appointment of the personal representative must predate commencement of the lawsuit, the plaintiff must ensure that the probate administration has started PRIOR to the expiration of any statute of limitations on the desired legal claim.
If the plaintiff is in a position where he or she must initiate probate administration, then he or she must decide whether to initiate formal or informal proceedings:
- Informal probate proceedings are directed to the probate register who completes the appointment of the personal representative and admission of the will instead of the judge. There are fewer steps involved, is completed faster and is much less expensive than formal proceedings. However, informal proceedings are only appropriate if there is no expected disagreement to who the personal representative should be or whether a valid will is admissible to probate. A person that has a right or cause of action that cannot be enforced without administration or appointment may file an application only if an interested person has not filed an application within 28 days after the decedent’s death. MCL 700.3301(1).
- Formal probate proceedings are required if it is unclear whether the decedent left a valid will or who the personal representative should be. MCL 700.3401(1). Formal probate proceedings may be commenced by petition at any time after the decedent’s death to the probate court, but no appointment will be made without a hearing before the probate court judge. Notice will have to be provided to all interested persons of the hearing date. “During the pendency of a formal testacy proceeding, the register shall not act upon an application for informal probate of a will of the decedent or an application for informal appointment of a personal representative of the decedent.” MCL 700.3401(3).
Deciding which procedure to undertake in order to expedite the appointment of a personal representative should be made in consultation with an experienced probate attorney. Depending on the type of claim, you may be subject to tight time deadlines to commence your lawsuit.
A prospective plaintiff should take note that, if the original statute of limitations for the claim against the decedent lapsed before the personal representative was appointed, he or she does NOT get an additional period to recover just because the personal representative has a duty to provide notice to creditors. MCL 700.3803(1)(a) allows the decedent’s creditors to present claims to the personal representative within 4 months after the date of the publication of notice to creditors, “except that a claim barred by a statute at the decedent’s domicile before the publication for claims in this state is also barred in this state.” Furthermore, the statute only applies to the presentment of claims against a decedent’s estate “if not barred earlier by another statute of limitations or nonclaim statute.” MCL 700.3803(1). The plaintiff is not entitled to a “do-over”.
It is true that the “[t]he running of a statute of limitations measured from an event other than death or publication for a claim against a decedent is suspended during the 4 months following the decedent’s death but resumes after that time as to a claim not barred under this part.” MCL 700.3802(2). This “suspension” has the effect of stopping the clock once the four-month publication period commences and restarting it once it ends. If the statute of limitations had not already lapsed on the claim prior to publication, then it may create four more “bonus” months to file a claim. However, if the statute of limitations had already expired, then no act or duty of the personal representative will reactivate the claim.
Initiating litigation against a deceased person adds additional layers of complication to recovery on your claim and requires the assistance of an experienced lawyer. If you have questions about your civil claim or require legal representation, do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC today.