“My Defendant is Dead”

A deceased defendant can throw a wrench into an injury case.  As discussed in Gomez v. Fradin, 199 So.3d 554 (Fla 4th DCA 2016),  the defendant’s estate must be administered for the case to proceed, however sometimes it falls upon the plaintiff’s firm to jump start this process. When no one related to the decedent/defendant pursues probate, the estate is typically without significant assets. In a situation where no family member or acquaintance of the defendant takes the initiative to administer the estate there are several options to consider:

  • Convince a family member to act as personal representative: One strategy in administering the estate of a deceased defendant is to reach out to the decedent’s family and gently explain that the estate needs to be administered, that attorney’s fees have already been provided for, and that a family member has preference under the law to act as personal representative of the estate. If a family member agrees to act as personal representative, they will likely do so without compensation, and the family member likely has no conflict of interest with the estate. A potential downside to using a family member in this situation is that they have nothing to gain from administering the estate, and may malinger in executing documents and taking steps necessary to secure Letters of Administration.


  • Use the plaintiff as personal representative: As a creditor to the estate, the plaintiff has an interest in the proceedings and may serve as personal representative after noticing all necessary parties. The plaintiff of course has a conflict of interest, having both a claim against the estate and a fiduciary duty to the estate. However, in a situation where you seek damages from an estate there will likely be insurance coverage and defense counsel hired by the insurance company to defend the estate. This dynamic, plus a possible posting of bond by the plaintiff/personal representative, will typically assuage a court’s concern regarding the conflict of interest.


  • Use an attorney or professional to act as personal representative: The probate attorney handling the estate may be allowed by the court to serve as personal representative. Alternatively, a third-party attorney or professional guardian/conservator may be appointed by the court. These parties will generally be efficient, but may charge a fee to serve. In cases where the plaintiff or their probate attorney serves as personal representative, the court may elect to additionally appoint a third party administrator ad litem.


Every case is different, and the nature of your claim against the estate affects the viability of these choices. To facilitate a settlement that has already been negotiated, where the establishment of the estate is a necessary technicality, any of the three approaches described above may be appropriate. For cases that will be extensively litigated, a professional third party is the ideal choice. In any case, Florida Probate Law Group can help guide you to the right solution.

We work statewide with no fees or costs upfront. If you have questions about probate issues affecting your settlements, call 352-354-2654 or email cdavid@circuit8law.com.