In California, you cannot sue a dead person directly, because a deceased individual has no legal capacity to be a defendant. But the claim itself does not die with them. You sue the estate through its personal representative, or, if liability insurance covered the conduct, you sue the insurer directly without touching probate. Either way, one deadline governs almost everything: you generally have one year from the date of death to file.
Who You Actually Sue
California Code of Civil Procedure Section 377.40 confirms that a cause of action against someone survives their death and passes to the estate.1Justia. California Code of Civil Procedure 377.40-377.43 – Cause of Action Against Decedent The estate steps into the decedent’s shoes as the defendant.
The person you name depends on the route you take. For a standard claim against estate assets, you sue the personal representative, meaning the executor or administrator appointed by the probate court to manage the estate. If no probate case has been opened and no representative appointed, a successor in interest, someone who inherits the specific claim or property at issue, can sometimes stand in, but only if no probate proceeding is pending.
For an insurance-only claim under Probate Code Section 550, you name “Estate of [Name], Deceased” as the defendant and serve the insurer. More on that below, because it is often the better path when a policy exists.
The One-Year Deadline That Kills Most Claims
This is where cases against deceased defendants most often fail. Code of Civil Procedure Section 366.2 sets a hard one-year limit: if the person dies before the statute of limitations on your claim runs out, you have one year from the date of death to file suit.2California Legislative Information. California Code CCP 366.2 The original limitations period no longer controls. Whether you had six months or six years left on the clock, you now have twelve months from the death.
The deadline is unusually rigid. Section 366.2 states that the one-year period cannot be tolled or extended for any reason, with only narrow exceptions tied to the probate creditor-claim process.2California Legislative Information. California Code CCP 366.2 Not knowing the person died will not save a late filing. Waiting on someone else to open probate will not save it either. If you think the person who harmed you or owes you money may have died, verify it and act quickly.
One carve-out: if you are going after insurance under Probate Code Section 550, Probate Code Section 551 extends your time. Where the original statute of limitations had not expired at death, you can file the insurance-only claim up to one year after that original limitations period would have expired.3Justia. California Probate Code 550-555 – Liability of Decedent Covered by Insurance That is meaningfully more time than the estate route gives you.
Suing the Insurer Directly
When the conduct is covered by liability insurance, like a car crash, Probate Code Section 550 lets you skip most of probate. You file a lawsuit to establish the decedent’s liability and collect from the insurer without joining the personal representative or any successor in interest as a party.4California Legislative Information. California Probate Code 550 For most car accident claims, the policy is the realistic source of money anyway, which makes this the practical route.
The complaint names “Estate of [Name], Deceased.” You serve the summons on whoever the insurer has designated in writing, and if no one is designated, on the insurer directly. The insurer defends the case and can contest liability like any other defendant.3Justia. California Probate Code 550-555 – Liability of Decedent Covered by Insurance
The trade-off matters. If you proceed without joining the personal representative, any judgment is enforceable only against the insurance proceeds. You give up recovery from other estate assets. If the policy limit is $50,000 and your damages are $200,000, you collect $50,000 and nothing more. When the estate holds real assets and your damages exceed the policy, you can join the personal representative and file a creditor’s claim under Probate Code Section 9390 to pursue the excess.5California Legislative Information. California Probate Code 554 Your own underinsured motorist coverage, if you have it, can also fill a gap, separate from anything the estate owes.
Filing a Creditor’s Claim in Probate
If you are going after the estate itself rather than just insurance, you have to file a formal creditor’s claim before you can collect, whatever the underlying claim is: contract debt, personal injury, unpaid judgment. The vehicle is California Judicial Council Form DE-172.6Judicial Council of California. Creditor’s Claim (Probate)
The form asks for a description of what you are owed, the dollar amount, and supporting documentation like invoices, contracts, or medical bills. File the original with the court clerk and deliver a copy to the personal representative and their attorney. Be specific. An executor can reject a vaguely described claim on procedural grounds, and courts will uphold the rejection.
The Deadlines
The filing deadline is the later of two dates: four months after the court first issues letters to the personal representative, or 60 days after notice of estate administration is mailed or personally delivered to you as a creditor. If you were never notified, the four-month clock controls. Neither of these extends the separate one-year deadline under CCP 366.2, so both are running at the same time.7Justia. California Probate Code 9100-9104 – Time for Filing Claims
The Probate Code allows late claims by court petition in limited circumstances, but the bar is high and the result is uncertain. Treat the deadlines as firm.
If Your Claim Is Rejected
Once filed, the personal representative either allows or rejects the claim. An allowed claim goes into the queue for payment from estate assets. A rejected claim gives you 90 days from the rejection notice to file a lawsuit on the claim. Miss that 90-day window and the claim is gone, whatever its merits.
What You Can Actually Collect
Winning does not guarantee payment. California Probate Code Section 11420 sets a strict order for paying an estate’s debts, and each class gets paid in full before the next class sees anything:8California Legislative Information. California Probate Code 11420
- Administration expenses, including attorney fees and executor compensation
- Secured debts like mortgages and liens, paid from the property securing them
- Funeral expenses
- Last illness expenses
- Family allowance for the surviving spouse or minor children
- Unpaid wages owed to employees of the decedent
- General unsecured debts, including most judgments, credit card balances, and personal loans
Most personal injury and contract claims sit in that last class. If estate assets run out before reaching your class, you get nothing. If they reach your class but cannot pay it in full, every creditor in the class receives a proportionate share. This is why the Probate Code Section 550 insurance route is so attractive when it is available: insurance proceeds sit outside the estate and are not rationed by this priority system.
One other limit matters. Code of Civil Procedure Section 377.42 permits all compensatory damages that could have been recovered against the decedent while alive, but excludes punitive or exemplary damages.1Justia. California Code of Civil Procedure 377.40-377.43 – Cause of Action Against Decedent Medical bills, lost income, property damage, and pain and suffering remain available. Any claim intended to punish the decedent’s conduct dies with them.
Confirming the Death and Locating the Estate
Before filing anything, confirm the death and find out whether a probate case has been opened. Search the online case portal for the Superior Court in the county where the person lived; most California counties offer free searches. Look for a probate case number and the name of the appointed personal representative.
If no probate case exists, you may need to verify the death through a certified death certificate from the county vital records office. The Social Security Administration also maintains the Death Master File, but the agency notes those records are not comprehensive.9Social Security Administration. Requesting SSA’s Death Information For litigation, the county death certificate is the stronger document.
If no probate has been opened and you need a representative to sue, you may have to petition the probate court yourself to open the estate. That adds time and cost. The Section 550 insurance route avoids this problem entirely when a policy is in play.
A Note on Federal Court
If your case is in federal court instead of California Superior Court, the state rules above still shape the underlying claim, but a federal procedural rule governs substitution. Under Federal Rule of Civil Procedure 25, when a party dies and the claim survives, any party or the decedent’s representative must move to substitute the proper party within 90 days after a formal statement of death is served.10Legal Information Institute. Rule 25 – Substitution of Parties If no one files that motion in time, the court must dismiss the action against the deceased party. The 90-day clock does not start until someone actually serves the statement of death, so nothing happens automatically, but once that statement is served, the deadline is firm.