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  1. #1
    Join Date
    Sep 2010
    Posts
    11

    Default Defendant Died Prior to Complaint

    My question involves court procedures for the state of: FL

    Found out during process of service (by sheriff) that one defendant passed away a few months prior to the docketing of my complaint. I have been searching for more information but all I have is the date of death and not even where the defendant died so now doing more searching and probably will hire a PI to get additional information. I have looked in the probate court of the county to see about the estate but nothing there as well.

    Questions.
    1.) In case I do find the executor of the estate, how do I proceed? Do I just amend the complaint and name the Estate of... and then serve the Executor?

    2.) In case I can't find any estate that has been setup, how do I proceed? Do I ask the court to setup an estate from which I can sue? If yes, is there a name for this type of action?

    Any help would be great.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Defendant Died Prior to Complaint

    Basically yes, you would sue the estate of the defendant instead of the defendant, and would serve the administrator. If there is no administrator you would need to open an estate and ask the court to appoint an administrator; but that could mean that there are no assets to pursue.

  3. #3
    Join Date
    Sep 2010
    Posts
    11

    Default Re: Defendant Died Prior to Complaint

    Sorry for the followup question. I will probably just drop the dead defendant and continue to search for whether his estate has been setup or not. Now it looks like I can drop a specific defendant per this rule by Notice of Dropping Party.
    http://phonl.com/fl_law/rules/frcp/frcp1250.htm 1.250 (b)
    With this rule.
    http://phonl.com/fl_law/rules/frcp/frcp1420.htm

    Question.
    1.) Just making sure I can use these rules to drop a specific defendant and not the whole case.
    2.) If yes, if the other defendants have not been served yet on the original complaint, and I want to file this Notice, how do I serve the defendants that have not been served with the original complaint yet? Should I just wait till they are served with the original complaint before moving the Notice?

    Thank you so much for the help. I have already had every strange thing happen during this process so far... adding one deceased defendant to the list. Your help and forum are a great resource, thanks again.

  4. #4
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: Defendant Died Prior to Complaint

    Dropping a defendant would be the proper notice and this is different than a voluntary dismissal which should only be done when the entire case is being dismissed. However, there is certainly no hurry to do so. I would be concerned about getting all the other defendant's served. You can drop the deceased defendant at any time. I would give it some time to see if the estate is filed in probate, if there is an executor, etc. A big question is if he owned a home or other property. In FL a home, one with a homestead exemption, is protected against judgment, but that does not survive the death of the owner, for example.

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