Sample Motion to Substitute a Party in Georgia

In Georgia, you substitute a party in a pending lawsuit by filing a motion under O.C.G.A. 9-11-25, and if the substitution follows a party’s death, the motion must be filed within 180 days after a suggestion of death is served on the record.¹ Miss that window and the deceased party’s claims or defenses are dismissed. Below is a sample motion to substitute a party in Georgia that you can adapt to your facts, along with the deadlines, service rules, and filing steps that go with it.

Sample Motion to Substitute a Deceased Party

This template covers the most common scenario: substituting the executor or administrator of a deceased party’s estate. Change the bracketed language to fit your case, and check with the clerk’s office about local formatting preferences before filing.

IN THE SUPERIOR COURT OF [COUNTY] COUNTY
STATE OF GEORGIA

[PLAINTIFF NAME],
Plaintiff,

Civil Action No. [CASE NUMBER]

[DEFENDANT NAME],
Defendant.

MOTION TO SUBSTITUTE PARTY PURSUANT TO O.C.G.A. 9-11-25

COMES NOW [Movant Name], by and through undersigned counsel, and respectfully moves this Court for an Order substituting [Proposed Substitute Name] as [Plaintiff/Defendant] in place of [Deceased Party Name], and in support thereof shows the Court as follows:

1. [Deceased Party Name] was [a plaintiff/the defendant] in the above-styled action.
2. [Deceased Party Name] died on [Date of Death]. A copy of the death certificate is attached hereto as Exhibit A.
3. A Suggestion of Death was filed and served on [Date of Suggestion of Death].
4. [Proposed Substitute Name] was appointed as [Executor/Administrator] of the Estate of [Deceased Party Name] by the Probate Court of [County] County, Georgia, on [Date of Appointment]. A copy of the Letters [Testamentary/of Administration] is attached hereto as Exhibit B.
5. This motion is timely filed within 180 days of the service of the Suggestion of Death, as required by O.C.G.A. 9-11-25(a).
6. The claims asserted [by/against] [Deceased Party Name] survive the death of the party under O.C.G.A. 9-2-41.
7. [Proposed Substitute Name] is the proper party to be substituted because [he/she/they] [is/are] the duly appointed representative of the Estate and [has/have] authority to prosecute or defend claims on behalf of the Estate.

WHEREFORE, [Movant Name] respectfully requests that the Court enter an Order substituting [Proposed Substitute Name] as [Plaintiff/Defendant] in place of [Deceased Party Name] and for such other relief as the Court deems just and proper.

Respectfully submitted this ___ day of __________, 20__.

_________________________________
[Attorney Name]
Georgia Bar No. [Bar Number]
[Firm Name]
[Address]
[Phone Number]
[Email Address]
Attorney for [Movant]

Adapting the Motion for Incompetency

If the party has been declared incompetent rather than deceased, drop the suggestion-of-death paragraph and the 180-day timeliness paragraph, since that deadline applies only to death substitutions. Reference the probate court order finding the party incompetent, and attach the guardianship or conservatorship order as your exhibit. A guardian manages personal and health decisions; a conservator manages property and finances. Either or both can serve as the substitute, depending on what the lawsuit involves.

Adapting the Motion for Transfer of Interest

When someone has sold, assigned, or otherwise transferred their interest in the subject of the litigation, describe the transaction in your motion, attach the operative documents (assignment agreement, deed, merger filings, and so on), and explain why the transferee has assumed the rights or obligations at issue. If you want the original party to remain in the case alongside the transferee, say so explicitly and give the reason both are needed. Georgia courts sometimes keep both in when the transferee’s rights depend on the original party’s conduct or when complete relief requires both.¹

Proposed Order to Submit With the Motion

Georgia judges generally expect a proposed order along with the motion. A basic version reads:

ORDER ON MOTION TO SUBSTITUTE PARTY

Having considered the Motion to Substitute Party filed by [Movant Name], and finding good cause therefor, it is hereby ORDERED that [Proposed Substitute Name] is substituted as [Plaintiff/Defendant] in place of [Deceased Party Name] in the above-styled action, effective as of the date of this Order. All subsequent pleadings and filings shall reflect this substitution.

SO ORDERED this ___ day of __________, 20__.

_________________________________
Judge, Superior Court
[County] County, Georgia

How the 180-Day Clock Actually Works

The deadline is the part people miss. The 180 days does not run from the date the party died. It runs from the date a suggestion of death is served on the record. A suggestion of death is a short written statement identifying the deceased party, the date of death, and the case. It must be served on existing parties under O.C.G.A. 9-11-5 and on non-parties, such as the estate representative or heirs, in the same manner as an original summons under O.C.G.A. 9-11-4.¹

If no one files a suggestion of death, the clock never starts. An opposing party can file one to start it. Once 180 days pass after service without a substitution motion being filed, the court must dismiss the claims involving the deceased party. If several parties are in the case and only one has died, the case continues without interruption as to the surviving parties.

One substitution happens automatically and needs no motion: when a public official sued in their official capacity leaves office, the successor is substituted by operation of the statute.¹

Who the Proper Substitute Is

For a deceased party, the proper substitute is almost always the executor or administrator of the estate. If no estate has been opened yet, the party seeking substitution may need to petition the probate court for appointment of an administrator before the motion can proceed. Start that process early, because the 180-day clock does not pause for probate.

Wrongful death claims follow a statutory priority. The surviving spouse has first right to bring or continue the action. If there is no surviving spouse, the decedent’s children can pursue it. If a wrongful death plaintiff dies while the action is pending, the claim survives to the decedent’s children.² Where minor children are involved, a guardian or conservator must be appointed to receive and manage any settlement funds on the child’s behalf.

For an incompetent party, the substitute must be a court-appointed guardian or conservator. If none exists, interested parties will need to initiate those proceedings in probate court before filing the substitution motion.

Whether the Claim Survives at All

Substitution only matters if the claim survives the party’s death. Under Georgia law, tort claims for personal injury, property damage, and wrongful death do not disappear when either the plaintiff or the defendant dies; the claim passes to or against the personal representative. One limitation to know about: you cannot recover punitive damages against the estate of a defendant who died before the lawsuit was filed.³ Contract claims, business disputes, and real estate litigation also typically survive, because those rights run with the parties rather than being personal to the individual.

Serving the Motion

Serve the motion and any notice of hearing on every party already in the case under O.C.G.A. 9-11-5: deliver a copy to the party’s attorney, or to the party directly if unrepresented, by hand, by mail to the last known address, or by email in PDF format if the party has consented to electronic service. Email service requires the subject line to read “STATUTORY ELECTRONIC SERVICE” in capital letters.⁴

Non-parties being brought into the case, such as an estate representative or heirs who are not already involved, must be served the way you would serve an original lawsuit: personal service through a sheriff, marshal, or process server under O.C.G.A. 9-11-4.¹ Mailing a motion to an heir who is not already a party will not satisfy the statute.

Attach a certificate of service to the motion identifying each person or attorney served, the address, the date, and the method. It does not need to be notarized.

Filing the Motion

File the motion in the same court where the underlying case is pending, along with all supporting exhibits: death certificate, letters testamentary or of administration, guardianship or conservatorship orders, or transfer documents, depending on the situation.

Many Georgia courts require electronic filing through platforms such as Odyssey eFileGA, Peach Court, or GreenFiling/InfoTrack. Counties with mandatory e-filing include Fulton, DeKalb, Gwinnett, Chatham, Cherokee, and Clayton, among others.⁵ Check the Georgia Courts website or contact the clerk to confirm. In courts without mandatory e-filing, you can file in person at the clerk’s window.

Filing fees for civil motions vary by county. If you cannot afford the fee, Georgia law allows you to file an affidavit of indigency swearing that you cannot pay. Once approved, the clerk must accept your filings without payment until the case concludes or is dismissed.⁶ The opposing party or the court can challenge the affidavit, and if a hearing shows you can pay, the court can order you to do so.

After You File

If no one objects, the court can grant the motion without a hearing, and many judges will simply sign the proposed order. If someone opposes, the judge will schedule a hearing. Common objections include claims that the proposed substitute is not the right person, that the motion was filed too late, that service was defective, or that the underlying claim did not survive the party’s death.

When the court grants the motion, all future filings should reflect the substitution in the case caption. The substitute steps into the shoes of the original party and is bound by any prior orders, discovery obligations, and scheduling deadlines already in place.

A denial usually comes with an explanation. Most denials rest on procedural defects such as bad service, missing documentation, or an untimely filing, and those can often be fixed and refiled. Move quickly; the 180-day deadline does not pause while you sort out paperwork. Appealing a denied substitution motion is difficult. In Georgia, an order denying substitution is generally interlocutory, which means it is not directly appealable as a final judgment. To get immediate appellate review, the trial judge would need to certify within ten days that the order warrants immediate appeal, and then the appellate court would have to agree to hear it.⁷ Most people fix the deficiency and refile.

The one scenario with almost no room to recover is a denial based on the 180-day deadline. If the court finds your motion untimely, dismissal of the claims involving the deceased party is mandatory.¹

If Your Case Is in Federal Court

The template above is written for Georgia state courts. If your case is in a federal court sitting in Georgia, Federal Rule of Civil Procedure 25 governs, and the deadline is shorter: 90 days after a suggestion of death is served, not 180. The suggestion must be served on existing parties under Federal Rule 5 and on non-parties under Federal Rule 4, and service can be made in any judicial district. Missing the deadline dismisses the action involving the deceased party.⁸

1
Justia. Georgia Code 9-11-25 – Substitution of Parties
2
Justia. Georgia Code 51-4-2 – Wrongful Death of Spouse or Parent
3
Justia. Georgia Code 9-2-41 – Nonabatement of Tort Actions
4
Justia. Georgia Code 9-11-5 – Service and Filing of Pleadings Subsequent to the Original Complaint and Other Papers
5
Georgia Courts. E-File Court Records
6
Justia. Georgia Code 9-15-2 – Affidavit of Indigence; Procedure
7
Justia. Georgia Code 5-6-34 – Judgments and Rulings Deemed Directly Appealable
8
Legal Information Institute. Rule 25. Substitution of Parties