DEATH OF A LITIGANT: WHAT IS A TRUSTS AND ESTATES LITIGATOR TO DO?

By Stacie P. Nelson, Esq.,* and Lydia Lee Lockett, Esq.**

I. INTRODUCTION

By now, the graying of America is old news. Demographers have long noted the increasing percentage of senior citizens in the American population—a percentage that is currently higher than it has ever been, and is expected to continue to increase.¹ Because of this increase in the aging population, it is now more likely than ever that a party to a civil action will die before commencement of an action or during litigation.² This situation creates new challenges for probate lawyers who might be unfamiliar with the timing requirements triggered by the death of a litigant.³ Probate lawyers must be ready to advise personal representatives and/or civil litigators, who are frequently less familiar with the process, deadlines and possible strategies.

Although many probate lawyers avoid practicing in the area of civil litigation, if the decedent died during pending litigation or with a viable claim by or against him, engaging in civil litigation or retaining a litigator on behalf of the estate is likely necessary. Whether the probate lawyer handles the litigation or retains a civil litigator, the probate lawyer must know the death of a party will almost certainly demand strict observance of the statutory scheme and time constraints of both the Code of Civil Procedure and the Probate Code. The statutory scheme and deadlines can be used to the estate’s advantage or can harm the estate’s position. Therefore, it is wise to know and/or advise the civil litigator of the strategic options created by the procedural requirements and deadlines.