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

By Stacie S. Polaskuk, 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, with all expectations that the trend will continue.¹ One ramification of this trend that is of interest to lawyers is the effect that the aging population has on litigation. Sad to say, it is now more likely than ever that a party² to a civil action will die before commencement of an action or during litigation. This situation creates new challenges for probate lawyers³ who might be unfamiliar with the timing requirements that are triggered by the death of a litigant and must advise the personal representative and/or the civil litigator handling the matter (who are often less familiar with the process) about deadlines and possible strategies.

Although most probate lawyers avoid civil litigation, if the decedent died during pending litigation (or died 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 that 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 and require the probate lawyer’s expertise regarding these schemes and deadlines because general civil litigators are often unaware of or unfamiliar with these procedures and timelines. The statutory scheme and deadlines can be used to the estate’s advantage or can harm the estate’s position and hence it is wise to advise the civil litigator of the strategic options created by the procedural requirements and deadlines.