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what happens when a plaintiff dies and is in a court case

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? Is the power of...
what happens when a plaintiff dies and is in a court case ? Is the power of attourney nulled after the death?
Submitted: 7 years ago.Category: Estate Law
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2/25/2010
Estate Lawyer: JaxLaw, Attorney replied 7 years ago
JaxLaw
JaxLaw, Attorney
Category: Estate Law
Satisfied Customers: 1,726
Experience: Estate Planning (i.e. wills, trusts, power-of-attorney doc.s, living wills, etc.), Probate and mor
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DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

 

A power of attorney does become null and void upon the death of the individual. If you wish to continue a law suit on behalf of the plaintiff that has died, a probate estate will need to be opened. The executor of the estate would then be the rightful party to continue the suit on behalf of the individual's estate.

 

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

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Customer reply replied 7 years ago
What does Durable Power of Attourney mean? The Personal Representative has named, is that the person who continues the lawsuit? Can that be revoked? And what is the first that needs to be done?
Estate Lawyer: JaxLaw, Attorney replied 7 years ago

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

 

A power of attorney is a document that allows that named attorney-in-fact to step into the individual's shoes and legally do whatever that individual could do legally. Durable means that the power of attorney continues even after a party becomes incapacitated. All power of attorney documents become void upon the death of the individual.

 

The personal representative is the same as the executor so yes, that would be the person to continue the suit.

 

I do not understand the remainder of the question. Can what be revoked? Also what is your relationship to this lawsuit? Are you the defendant? Are you a family member of the deceased?

 

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

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Customer reply replied 7 years ago
I am a family member of the deceased. He was in a lawsuit to get his land back from his step-granddaughter. The mediation was for March 5. Can the Personal Representative be revoked after his death? What I mean is, can anything be done to stop the Personal Representative from continuing? His lawyer is trying to let the case die and that is not what the defendant would want.
Estate Lawyer: JaxLaw, Attorney replied 7 years ago

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

 

A personal representative can be removed from his position if he has breached his fiduciary duty to the estate or was somehow self dealing in regards XXXXX XXXXX estate. I.e. the personal representative can be removed for cause. If the lawsuit is in the best interests of the estate and not pursuing the case would harm the beneficiaries of the estate, you could petition the court to remove the PR and appoint you as successor PR. There is no guaranty that the judge would agree, but you can always put forth the information and try to get appointed yourself.

 

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

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Customer reply replied 7 years ago
Well, we are appointed as Personal Rep. We want to know is there anything they could do to stop us from proceeding. It is in the best interest of the estate, but I am sure they think it is just so we can have it. We are also the sole benificiary. See what I mean?
Estate Lawyer: JaxLaw, Attorney replied 7 years ago

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

 

To be removed as PR the petitioning party would have to be a party of interest to the estate. I doubt that the court would consider that a non-beneficiary, non-creditor, who has no real interest in the probate estate (and who is being sued by the estate) to be a party of interest.

 

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

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Customer reply replied 7 years ago
Awww...... I see. What should we do about our lawyer not seemiong to care? We come from a small town and all the lawyers are best friends. Just the other day we saw the defendants lawyer and ours eating dinner together?????
Estate Lawyer: JaxLaw, Attorney replied 7 years ago

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

 

If your lawyer is not following your directions and moving forward with the suit, I would obtain a new lawyer. Just because the legal community are friendly outside of suits, doesn't mean that they would or should not try their hardest to win a suit. This would reflect negatively on their careers. If you believe no one in your town would be able to handle it, you should go to the next town over and see if an attorney from that town would handle the matter. As long as the attorney is in the same state, they can legally handle the matter.

 

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

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Customer reply replied 7 years ago
The man gave them the property in exchange for care when he got older. He did not recieve any care at all. Is that their interest of the estate?
Estate Lawyer: JaxLaw, Attorney replied 7 years ago

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

 

I meant interest in the probate estate (not in the real property). Even if they were interested parties, they are defendants in the suit so they are biased. I still do not believe that the judge would allow for them to have you removed for going forward with the suit. There opinion is muddied because of their conflict of interest.

 

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

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