More often than you’d imagine, probate attorneys bump up against a statute of limitations only to find out the defendant is dead. But you can’t sue someone who’s dead unless you follow very specific procedures. What do you do? Whom do you sue? We get these questions from lawyers regularly. Fortunately, the Court of Appeals has attempted to make the process understandable.
“As a general rule, an action by or against an estate must be brought or defended by the legal representatives of the estate.” Field v. Mednikow, 279 Ga. App. 380, 381 (1) (a), 631 S.E.2d 395 (2006). “A suit against a designated estate is not a suit with a real defendant … The estate of a dead man is mere inanimate property. Suits to bind the estate of a dead man should be brought in the name of a personal representative — an executor, administrator, etc. This is no mere technicality.” (Citation and punctuation omitted.) Estate of Norton v. Hinds, 182 Ga. App. 35, 35-36, 354 S.E.2d 663 (1987). Thus, a suit filed solely against an estate is a legal nullity. See id.
There is an action, however, that can be taken to remedy this situation. A party who improperly brings a suit against an estate may seek to amend the pleadings to name the proper party in interest — namely the legal representative of the estate. We have previously explained that the Civil Practice Act “allows for amendment to substitute the real party in interest if incorrectly named.” (Citation and punctuation omitted.) Memar v. Styblo, 293 Ga. App. 528, 529, 667 S.E.2d 388 (2008). This is also reflected in OCGA § 9-11-17 (a), which provides as follows:
Every action shall be prosecuted in the name of the real party in interest … No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. See also OCGA § 9-11-15 (allowing for liberal amendments), Estate of Suddeth v. Williams, 361 Ga. App. 433, 434–35, 864 S.E.2d 630, 631–32 (2021).
If you are suing a dead person and find out too late to get an estate opened properly, follow the rules set forth above. Sue the dead guy, then immediately get something filed in probate court to have someone appointed as (1) temporary administrator, (2) county administrator for the sole purpose of pursuing a lawsuit, or (3) permanent administrator appointed to open the entire estate (which allows you to forum shop for the place where you will file your lawsuit.) Then, once you have the administrator appointed, substitute the correct person for the wrongly identified person in the lawsuit you filed to preserve your statutory right.
No one likes missing a SOL. But, remember, the SOL pauses when the defendant dies and does not resume until the estate is represented. “The time between the death of a person and the commencement of representation upon his estate or between the termination of one administration and the commencement of another shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years. At the expiration of the five years the limitation shall commence, even if the cause of action accrued after the person’s death.” O.C.G.A. § 9-3-92.
So, take a deep breath when you think the statute of limitations might be running and you find out the defendant is dead without an open estate. You probably are better off than you think. If you are not, give me a call, and we will see what can be done to help you.
