Legal Proceedings after Death

Did you know that if you were a claimant in any legal action at the time of your death, that such action might survive for the benefit of your estate?  Similarly, if you were the subject of a claim against you, such action might survive your death and continue against your estate?

Some proceedings against the estate of a deceased person cannot be maintained unless Court action had been commenced at the date of death or where the cause of action (the circumstances giving rise to the claim) occurred not more than six months prior to death, and Court action is taken not more than six months after the executor or administrator obtains a grant of probate or letters of administration of the estate.

Separate laws do enable the dependents of a deceased person to bring an action in respect of a death of a deceased (such as wrongful death) in their own right.  Other limitation periods to bring a claim might apply in such cases.

If you are the executor of an estate, you may need to take action to ensure that any claims that might be brought on behalf of the estate are done within the relevant time periods.  It is a duty of an executor or administrator to maximise the value of the estate for the beneficiaries as a whole and any failure to do so might expose the executor or administrator to claims of breach of trust by the estate’s beneficiaries.

Furthermore, an executor or administrator may need to defend a claim brought against the deceased person or their estate. Failure to do so could also expose them to adverse claims for breach of duty.

It is possible, in appropriate circumstances or where doubt exists as to how to proceed, to obtain both legal advice and advice and directions from the court as to whether a claim should be continued or defended on behalf of an estate.

If you would like to discuss any estate matters please give us a call 08 8344 6422