Can someone sue the dead? Yes, but it’s a minefield

They say you shouldn't speak ill of the dead. But can you sue the dead? Sure. You just have to do it right. That's where it gets complicated.

A dead person cannot be sued in his or her own name. Instead, the deceased must be sued through whoever has legal authority over his or her assets. When the assets are in a trust, it is the trustee who has that authority. When the assets are in probate, it is the personal representative. There may be assets in both probate and a trust, in which case there may be both a personal representative and trustee (who may be the same person, but not always).

So if you know who the personal representative and/or trustee are, can you just go ahead and sue them, asserting the claims you have against the deceased? That depends.

If probate has been opened, the personal representative is required to give notice to potential creditors pursuant to Probate Code Section 9000, et seq. (See Prob. Code § 9050.) In this scenario, a creditor is required to timely file a creditor's claim, which will be accepted or rejected by the personal representative. If the creditor fails to do so, the creditor is barred from filing suit. (See Prob. Code § 9002.) If you are wondering, "am I a 'creditor'?" or "do I have a 'claim'?" the answer likely is "yes." Probate Code Section 9000 defines these terms very broadly, though there are important exceptions. Upon rejection of your creditor's claim, you have 90 days to bring suit to enforce the claim, naming the personal representative in his or her representative capacity as the defendant.

If assets are in a trust, and the trustee has elected to use the (optional) creditors' claims procedure set forth in Probate Code Section 19000, et seq, the creditor must file a creditor's claim with the court (the trustee will have already opened a proceeding pursuant to Probate Code Section 19003(a)) or the claim will be barred. The process essentially runs parallel to that under Probate Code Section 9000, et seq. (Note that a trustee is not allowed to use the trust creditors' claims procedure if probate has been opened, so there should not be a situation in which both processes occur.)

What if no probate has been opened and there has been no trust creditors' claims procedure? The safest option is to open probate yourself and have the court appoint a personal representative. (See Prob. Code § 8000 ("interested person" may open probate); id. § 48 ("interested person" includes a creditor).) You may have no idea what assets the decedent has or how they are held, including whether the decedent has a trust. Fortunately, a successful suit brought through the creditors' claims process in probate enables you to reach trust assets, if any, to satisfy the judgment. (See Prob. Code § 19001(a).) The California Court of Appeal has expressly rejected the notion that a creditor enforcing a probate claim against the personal representative must concurrently (or at all) make a claim and/or prosecute a lawsuit against the trustee. See Dobler v. Arluk Medical Center, 89 Cal.App.4th 530 (2001). Dobler held that "a creditor need only file a single claim, and must do so in the probate proceedings if the decedent has a probate estate. The Legislature's desire for orderly and expeditious administration of estates would be quickly defeated if creditors were required to simultaneously file identical claims against both the decedent's estate and trust. If the claims procedures were overlapping it would create confusion and delay, increase costs, and waste judicial resources." Id. at 541.

Are there any alternatives to opening probate as a creditor? Yes, but they carry some risk and controversy. First, one could file a petition under Probate Code Section 850(a)(3), authorizing an "interested person" to "file a petition requesting an order...[w]here the property of the trust is claimed to be subject to a creditor of the settlor of the trust." Under Section 850(a)(3), "interested person" "presumptively include[es] a creditor." Estate of Myers (2006) 139 Cal.App.4th 434, 441. Second, one could simply file suit against the trustee.

Unfortunately, the published case law on these last two options is sparse and/or unclear. Furthermore, the Probate Code is riddled with language that could plausibly be construed as requiring the opening of probate to tender a creditor's claim. The option under Section 850(a)(3) also is subject to the uncertainty created by Probate Code section 856.6, which states: "The court may not grant a petition under this chapter if the court determines that the matter should be determined by a civil action" - a statute that itself lacks much, if any, meaningful guidance. However, at least two unpublished cases have blessed these options after close consideration: Green v. Kingaard, 2009 WL 2624127 (2019); and Lindsey v. Brito 2018 WL 3490227 (2018). And proceeding under either of these alternative options may well be simpler, more efficient, and cheaper than opening probate. That being said, given that the most supportive cases are unpublished, and the relevant statutes provide at least a toe-hold for dispute, there is risk.

Whatever path you end up taking to pursue your claim against the decedent, you likely will be subject to the special one-year statute of limitations under Code of Civil Procedure Section 366.2 (or 366.3), in addition to the deadlines applicable to creditors' claims. This statute of limitations supersedes any that otherwise would apply to your cause(s) of action.