Filing a Lawsuit Against a Deceased Defendant

Posted on behalf of James Lynch on January 6, 2021  in Car Accident News. Updated on March 2, 2022

inventory of estate assetsIf you were hurt in an accident due to someone else’s negligence, you have the right to take legal action against that person. But what happens if the person dies?

Car accident claims involve insurance companies, so you may not have to deal with the at-fault party directly. However, what if there is not enough insurance to cover the cost of your damages? In other types of accidents, insurance coverage may not apply.

In these kinds of situations, you may need to file a lawsuit to pursue full compensation. It is in your best interest to call an experienced New Jersey personal injury attorney to discuss your legal options if you find yourself hurt after an accident that was not your fault.

When to File the Lawsuit

Usually, a lawsuit is filed when negotiations during an insurance claim break down. Such as when neither party comes to an agreement on a settlement, or when the insurance company denies the claim and the victim and his or her attorney dispute this.

That said, fault may not be an issue in an auto accident claim because New Jersey is a no-fault state, meaning victims must first seek compensation from the personal injury protection (PIP) coverage in their own car insurance policy. PIP coverage can be used even if you are at fault for the crash.

If your PIP coverage runs out, you may be able to make a claim against the other driver’s liability insurance, even if he or she died in the crash. For example, if your injuries were caused by a drunk driver who died in the crash, you may be able to pursue a claim against this person’s insurance policy.

If there is no insurance, either because you do not have it or the negligent party does not have it, you may be able to file a lawsuit. However, New Jersey requires drivers to decide on a limited or unlimited right to sue when purchasing insurance. If you chose the unlimited right to sue, you can file a lawsuit to pursue all damages suffered. However, if you chose the limited right to sue, you cannot pursue pain and suffering in a lawsuit unless you suffered certain types of injuries.

Protecting Your Claim During Probate

Probate court handles the assets and debts of a person who has died. These courts work to ensure the decedent’s creditors are paid and any remaining assets distributed to the appropriate beneficiaries.

If the person who caused your injuries died, you have just nine months to file a claim against the deceased’s estate in probate court. If you have an open claim against a person who later dies, the estate has a legal obligation to notify you of that person’s death so you may file your claim with the probate court before the deadline passes.

New Jersey law states that a deceased person’s estate shall not be liable for any claims brought against the estate after this nine-month period.

The Courts Will Divide the Assets

Once a claim is appropriately filed with the probate court and negligence on behalf of the decedent is established, a probate judge will allocate the assets of the deceased person in this order:

  • Reasonable funeral expenses
  • Costs and expenses of administration
  • Debts and taxes with preference under federal law or laws of the state
  • Reasonable medical and hospital expenses
  • Judgments entered against the decedent according to the priorities of their entries
  • All other claims

Speak to a Knowledgeable Attorney

Filing a car accident claim and dealing with the insurance companies is stressful enough. Having the pressure of filing yet another claim through probate court if the negligent party dies can be even more complicated and add a lot of stress.

Let our attorneys at the Lynch Law Firm, PC help you through the legal process so you may focus on recovering from your injuries. We offer a free case review and we do not charge you anything while we work to validate your claim and pursue maximum compensation.

We have extensive knowledge of state laws and the legal process and have been helping the injured for more than two decades.

Call today to schedule your free consultation: (800) 518-0508

* Results may vary depending on your particular facts and legal circumstances.

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