When a defendant dies while a civil personal injury lawsuit is pending, the proper procedure is for his lawyer (assuming he has one) to file a suggestion of death. This should trigger the plaintiff’s attorney to take action and sue the property party so that the case does not get dismissed for want of prosecution. Thus, the plaintiff’s personal injury lawyer must know who to sue if the defendant dies and what the right procedure it to bring that party into the lawsuit.
Who Do You Sue When a Defendant Dies?
When a defendant dies before the lawsuit is filed, the plaintiff in the lawsuit must sue the defendant’s estate. The defendant’s estate can be sued in one of three ways:
- by intervening in an existing probate
- by forcing a probate (if none is pending), or;
- by filing a motion for scire facias to sue a representative on behalf of the estate.
What is a Motion for Scire Facias Substitution?
A motion for scire facias also called a motion for scire facias substitution, is a motion that asks the Court to substitute a representative on behalf of the estate of a deceased party. Whether you may need or want to file one may depend exactly upon when the defendant died.
Who Do You Sue When a Defendant Dies Before the Lawsuit is Filed?
When the defendant passes away before a lawsuit is filed, whether in the accident or after the wreck, the proper party is the estate of the deceased. If a Probate action is pending, then the Plaintiff has the choice of intervening in the probate action or filing a separate civil action along with a suggestion of death and a motion for scire facias.
Depending upon which probate court the probate action is pending in, the plaintiff’s lawyer may choose to intervene therein. If so, then the case proceeds forward in that court just as any other civil personal injury trial.
If there is no probate pending, the plaintiff’s lawyer may choose to bring forced probate of the case or they may proceed with a separate civil action and file a motion for scire facias substitution as discussed below.
Who DO you Sue When a Defendant Dies After a Lawsuit is Filed?
Pursuant to Texas Rule of Civil Procedure 153, “Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator or executor or heir.” Thus, once a suggestion of death is entered the Court is obligated to issue a scire facias to make the administrator or executor of the defendant’s estate answer and defend the lawsuit.
As a practical matter, the Court is not going to know who the administrator or executor is unless someone tells them. Thus, the best practice is to determine who the administrator or executor is, file a suggestion of death, and then file the motion for scire facias substitution wherein you identify the proper party to substitute.
How Do You Find the Executor or Administrator of an Estate?
Finding the executor or administrator can be a challenge. The plaintiff’s lawyer has to search all of the possible probate Courts where a probate is likely to be filed. If there is no probate pending, then he can identify the persons who are the legal heirs of the person and file a motion for scire facias substitution requesting that the Court substitute that person as the defendant’s acting executor for purposes of the pending lawsuit.
The Suggestion of Death Form
A suggestion of death is a very simple document that should look like this (in Texas):
SUGGESTION OF DEATH
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, and does hereby place this Court on notice that (deceased), Defendant herein, died after the date of the motor vehicle collision in question and prior to the filing of this lawsuit.
WHEREFORE PREMISES CONSIDERED, Plaintiff, pursuant to Texas Rules of Civil Procedure 152, moves this Court to enter this Suggestion of Death on record in this cause.
Respectfully submitted,
(Attorney for Plaintiff)
The Motion for Scire Facias Substitution Form
Here is a Texas form for a motion for scire facias substitution:
MOTION FOR SCIRE FACIAS SUBSTITUTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, and files this Motion for Scire Facias Substitution and shows as follows:
This is a personal injury case that occurred on (date) in Harris County. (deceased’s) negligence was the sole cause of this motor vehicle collision. Plaintiff has suffered injuries because of (deceased’s) negligence. After the motor vehicle collision in question, (deceased) died.
Plaintiff has been able to identify a relative of (deceased); to wit, (relative). Plaintiff believes such person is an Heir, Representative, Administrator and/or Executor of the Estate of (deceased).
Under Texas Rule of Civil Procedure 152, when a Defendant dies, the Court Clerk, upon Motion for Plaintiff, “shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit.” Upon information and belief, there has been no probate action filed nor is there any pending administration pertaining to(deceased). (relative) is the (how related, i.e. husband, brother, parent, child) of (deceased) and is an heir pursuant to common law and the Texas Probate Code §38. Thus, Plaintiff requests the Court Clerk issue Scire Facias ordering (relative) come forth and defend this lawsuit as Heir, Representative, Administrator, and/or Executor of (deceased). He can be served with process at his usual place of residence:
(relative’s address)
WHEREFORE, Plaintiff prays this Court let issue a Scire Facias ordering (relative) to come forth and defend this lawsuit as Representative, Administrator and/or Executor of (deceased) and for such other and further relief to which Plaintiff may be entitled.
Respectfully submitted,
(Attorney for Plaintiff)
What Happens When a Defendant Dies After Verdict But Before Judgment Entered?
Pursuant to Texas Rule of Procedure 156, “When a party in a jury case dies between verdict and judgment, or a party in a non-jury case dies after the evidence is closed and before judgment is pronounced, judgment shall be rendered and entered as if all parties were living. Thus, no scire facias substitution is required in this situation.
Final Note
Identifying the proper party is critical to your case. Failure to identify, sue, and serve the proper party timely may result in the case being dismissed and forever barred. A qualified personal injury attorney should always be consulted before taking legal actions of any sort. Call us if you would like a free consultation.