[WSBAPT] Deceased defendant not substituted by PR of estate

Tue Feb 9 13:21:16 PST 2021

Roger:  This is covered by CR 25.  What is not clear is "time authorized by law".  This seems to suggest it is the probate statutes that provide the time authorized.
Who will then make motion to dismiss?  The defendant is dead and there is no estate or Administrator/PR.

I assist plaintiff's attorneys in tort litigation when there is a deceased defendant to open probate, appoint Administrator and serve said Administrator with an amended s/complaint in the tort litigation as soon as possible.
Whether the tort litigation is pending at the time of death or filed after defendant dies and then unable to serve deceased defendant provides different timelines for service, substitution and also whether a creditor claim is necessary.
In pending appeals - see RAP 3.2 below.

                                                     CR 25
                                           SUBSTITUTION OF PARTIES

    (a)  Death.

    (1)  Procedure. If a party dies and the claim is not thereby extinguished, the court may order substitution
of the proper parties. The motion for substitution may be made by the successors or representatives of the
deceased party or by any party and, together with the notice of hearing, shall be served on the parties as
provided by rule 5 for service of notices, and upon persons not parties in the manner provided by statute
or by rule for the service of a summons. If substitution is not made within the time authorized by law,
the action may be dismissed as to the deceased party.

    (2)  Partial Abatement. In the event of the death of one or more of the plaintiffs or of one or more of the
defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs
or only against the surviving defendants, the action does not abate. The death shall be suggested upon
the record and the action shall proceed in favor of or against the surviving parties.

    (b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in section (a) of
this rule may allow the action to be continued by or against the party's representative.

    (c)  Transfer of Interest. In case of any transfer of interest, the action may be continued by or against
the original party unless the court upon motion directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party. Service of the motion shall be made as provided
in section (a) of this rule.

                               RULE 3.2
                   SUBSTITUTION OF PARTIES

    (a) Substitution Generally. The appellate court will
substitute parties to a review when it appears that a party
is deceased or legally incompetent or that the interest of a
party in the subject matter of the review has been
transferred.
    (b) Duty To Move for Substitution. A party with
knowledge of the death or declared legal disability of a
party to review, or knowledge of the transfer of a party's
interest in the subject matter of the review, shall promptly
move for substitution of parties. The motion and all other
documents must be served on all parties and on the personal
representative or successor in interest of a party, within
the time and in the manner provided for service on a party.
If a party fails to promptly move for substitution, the
personal representative of a deceased or legally disabled
party, or the successor in interest of a party, should
promptly move for substitution of parties.
    (c) Where To Make Motion. The motion to substitute
parties must be made in the appellate court if the motion is
made after the notice of appeal was filed or discretionary
review was granted.  In other cases, the motion should be
made in the trial court.
    (d) Procedure Pending Substitution. A party, a successor
in interest of a party, a personal representative of a
deceased or legally disabled party, or an attorney of record
for a deceased or legally disabled party who has no personal
representative, may without waiting for substitution file
(1) a notice of appeal, (2) a notice for discretionary
review, (3) a motion for reconsideration, (4) a petition for
review, and (5) a motion for discretionary review of a
decision of a trial court or the Court of Appeals.
    (e) Time Limits. The time reasonably necessary to
accomplish substitution of parties is excluded from
computations of time made to determine whether the following
have been timely filed: (1) a notice of appeal, (2) a notice
for discretionary review, (3) a motion for reconsideration,
(4) a petition for review, and (5) a motion for
discretionary review of a decision of a trial court or the
Court of Appeals.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website:  www.glglawgroup.com

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Roger Hawkes
Sent: Tuesday, February 9, 2021 12:49 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Request for Referral to Professional Fiduciary in King County to Serve as Administrator of Debtor Estate

Husband of recently deceased debtor wants to know what to do with creditors' law suit.  Assuming it is just against decedent, the creditor is supposed to substitute parties; right?  What is the result if creditor is ignorant and does nothing except gain a default judgment?

Roger Hawkes, WSBA # 5173
Hawkes Law Firm and Sultan Lawyers
19944 Ballinger Way NE, Shoreline, WA 98155 and
423 Main, Sultan, WA 98294
206 367 5000
360 799 6438
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