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JD
JD, Lawyer
Category: Legal
Satisfied Customers: 1335
Experience:  Over 11 years in practice as a litigator ... civil and criminal
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If a plaintiff is in a lawsuit, and dies, what happens to the

Customer Question

If a plaintiff is in a lawsuit, and dies, what happens to the case?
Submitted: 7 years ago.
Category: Legal
Expert:  JD replied 7 years ago.

§ 1051. Causes of action that survive

In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same.

 

§ 1052. Actions which abate on death of party

No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander or malicious prosecution, which shall abate by the death of the defendant. An action for libel, slander or malicious prosecution shall not abate after a jury verdict or a decision by the court where the trial is by the court, unless a new trial is ordered.

 

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Therefore, if the cause of action is eligible to survive the plaintiff's death then the estate will become the new plaintiff as administered by the designated personal representative.


Please reply if I can help further.

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Customer: replied 7 years ago.
Okay, say this man has a lawsuit trying to get his land back from his step-granddaughter. He has appointed a power-of-attourney to a person who has been taking care of him and his estate. He is in stage 4 of 5 of terminal cancer. Can the case keep going if he dies? What will be the judgement?
Expert:  JD replied 7 years ago.

The lawsuit would survive and the administrator of his estate would take over. The proceeds (if any) would then benefit the estate and his heirs.

 

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Customer: replied 7 years ago.
Okay, so the power of attourney takes over and goes forward with the case until it is finished? And the benificiary collects what ever is one?
Expert:  JD replied 7 years ago.

The power of attorney probably will not take over. Most likely (depending on the nature of his entire estate planning documentation) there will be a designated representative or administrator of his estate (could be the same person) in his will. That will be the person who basically takes over on behalf of the estate.

 

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Customer: replied 7 years ago.
Well, the person who is benificiary and power of attourney is the same one. He has not mentioned a "administrator" or "representative". I believe this is possibley the same person. They take care of EVERYTHING. But if it isn't does he need to state an administrator?
Expert:  JD replied 7 years ago.

In that situation there should be no problem. The only way to make sure is a quick call to the attorney who drafted the actual document... but from your description everything seems fine.