Can I Sue a Dead Person in Michigan?

There are times when it is necessary to sue a dead person in Michigan. A lawsuit against a deceased person or deceased person’s estate can be filed for different case types and under different circumstances. If the case arises from an injury, accident, or medical negligence, you need an experienced Michigan personal injury lawyer to get your case started immediately.

• Common Reasons to Sue a Dead Person’s Estate
• Why Do I Need to Sue the Dead Person’s Estate?
• What are the Steps to Open a Probate Estate?
• What if the Deceased Person’s Estate has no Assets?
• Time Limits to Sue a Deceased Person

What Types of Cases Can You Sue a Person Who is Dead?

You can sue a person who is dead in virtually every type of legal matter. The most common types of lawsuits against deceased people include:

• Personal injury cases in which the deceased defendant also died in the accident, like a boating accident, airplane crash, or other tragic event
• Motor vehicle accident cases, including motorcycle and truck accidents, where the defendant died in the crash or later from crash-related injuries.
• Medical negligence cases, including medical malpractice, when the negligent doctor died after committing a medical error or mistake.
• Other cases involving contracts, libel and slander, and other legal matters.

Common Reasons to Sue a Dead Person’s Estate

The goal of virtually every lawsuit is to seek compensation for the person filing the case. This can be for wrongful death damages, pain and suffering claims, and for breach of contract damages. A living defendant served with a lawsuit is required to defend the case and participate in legal proceedings. However, this is obviously impossible when a defendant is deceased.

Just because a person is dead does not mean you automatically lose your right to file a lawsuit. In fact, the law in Michigan provides procedures on how to sue a decedent’s estate. If you follow those procedures, you can still recover money damages against the deceased person.

It is essential to hire a law firm in Michigan with experience and expertise in filing lawsuits against deceased individuals and their probate estates. If you do not follow the court rules and file your case in a timely manner, you may forfeit your right to compensation.

Why Do I Need to Sue the Dead Person’s Estate?

Under Michigan law, you cannot simply name a deceased person in a lawsuit and proceed in that manner. This is because there is no one to defend the lawsuit and there is no way to collect on a judgment. If no one opened a probate estate for the decedent, your attorney must open an estate with the probate court and then sue the estate for damages.

The legal precedent for this requirement is set forth in both Michigan case law and the Michigan Court Rules. Pursuant to Michigan Court Rule 2.201(C)(1), “[a] natural person may sue or be sued in his or her own name.” A deceased person does not qualify under this rule.

In Potter v Devine, unpublished opinion of the Court of Appeals, issued June 20^th, 2013 (Docket No. 308878), the Michigan Court of Appeals determined that a deceased person cannot participate in litigation. This is because a dead person cannot be served with legal process, cannot file or answer a lawsuit and cannot retain an attorney to assist him or her.

If a decedent’s estate has been established with a probate court, it is easy to file a lawsuit against the dead person. Your attorney will file the lawsuit and list the probate estate as the defendant in the case. The personal representative of the estate must then take the necessary steps to defend the case in court. If no estate has been opened, the plaintiff’s attorney must then open a probate estate on behalf of the deceased defendant before a lawsuit can be filed.

What are the Steps to Open a Probate Estate?

There are several steps for a lawyer to open a probate estate to sue a deceased person. No matter which step is chosen, it starts with filing papers in the probate court. This is usually done in the county where the deceased person resided at the time of his or her death.

Under Michigan statute [MCL 700.3104(1)], “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. A non-family member or heir can file the application to open the estate.

The probate estate must be opened and established before a lawsuit is filed against the estate. The important case is Packard v Brown, unpublished per curiam opinion of the Michigan Court of Appeals, issued August 22^nd, 2019 (Docket No. 344720). Once an estate is opened and a personal representative is appointed by the court, you can then sue the decedent’s estate.

There are two primary ways for a suing party to open a probate estate for a deceased defendant. These are known as a “formal proceeding” or “informal proceeding.”

As you might expect, an informal probate proceeding is less complicated, less expensive, and often the fastest way to do it. This proceeding only works if there is no expected disagreement about 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

A formal probate proceeding may be commenced by petition at any time after the decedent’s death to the probate court. Unlike with an informal proceeding, there is no appointment of a personal representative without a hearing before the probate court judge.

Notice of the opening of the decedent’s estate must be provided to all interested persons of the hearing date.  Interested persons include all potential heirs of the decedent and all persons named in the decedent’s Last Will and Testament, if one existed at the time of death.

After a formal probate proceeding is filed and served on the heirs, the court will set a hearing date to appoint the personal representative. The probate judge can appoint a family member or heir, and if none appears for the hearing, will appoint an attorney or court administrator to serve in the capacity as personal representative of the decedent’s estate.

Once a personal representative is appointed through an informal probate proceeding or formal probate proceeding, a lawsuit can be filed against the estate. The lawsuit names the defendant by the name of the estate, such as “John Doe as the Personal Representative of the Estate of Jane Roe, deceased.” The case then proceeds like all other lawsuits.

What if the Deceased Person’s Estate has no Assets?

You generally do not want to open a probate estate for a deceased person if the estate will have no assets. This is because even if you win a judgment against the estate, there will be no assets to pay the judgment. You are essentially just receiving an uncollectible judgment.

If the decedent has sizable assets, you can assert your claim against the assets of the estate. In most cases, especially those involving auto accidents, the goal is to pursue claims against the decedent’s liability insurance company to pay a settlement or judgment.

For example, let’s say a negligent driver crosses the centerline of a road into oncoming traffic and causes a serious injury accident. If the negligent driver is killed in the crash, but has auto insurance, you will need to open an estate to sue the driver to activate insurance coverage. The auto insurance company must then pay a settlement or judgment on behalf of the decedent, even if the decedent’s estate has no assets, like real estate or bank accounts.

There are many cases in which both the plaintiff and defendant suffer fatal injuries in a crash. This includes wrongful death lawsuits in which an occupant of one vehicle sues the driver of another vehicle, and when a passenger in a vehicle sues the driver of the same vehicle. In these circumstances, it is often necessary to open a probate estate for both the victim and the negligent driver. So, your lawyer may need to open two estates to proceed with the case.

Time Limits to Sue a Deceased Person

There are strict time deadlines, called the Statute of Limitations, to file lawsuits in Michigan. These deadlines vary depending on the type of case, but each deadline serves as a permanent bar to recover damages if you wait too long to file a lawsuit.

For cases involving a dead defendant, it is important to hire a lawyer immediately because the extra step of opening a probate estate can delay the filing of your case. As such, you should contact a knowledgeable lawyer as soon as possible to start your claim.

Get Started Now on Your Case

 The award-winning lawyers at The Buckfire Law Firm have the skill, experience, and knowledge to start your case. If you need to sue a deceased person, you should call us immediately so we can open a probate estate and timely file your lawsuit.

We charge no legal fees whatsoever unless you win a settlement. If there is no money compensation required, then you owe us nothing. We put that in writing for you!