Upon a party’s death, the proper party to bring and maintain or to defend a legal action in Decedent’s name or on Decedent’s behalf is Decedent’s Personal Representative. RCW 4.20.046 Beal v. City of Seattle, 134 Wn.2d 769 (1998); Rose v. Fritz, 104 Wn. App. 116 (2001). Consequently, if Decedent will become a party to lawsuit, such as a wrongful death action, you will need to obtain Letters in order to bring and maintain the lawsuit — meaning that a probate will be required in order to appoint you Personal Representative. RCW 4.20.010
Several practical problems, however, arise in connection with bringing a wrongful death action on a Decedent’s behalf:
Consequently, the Personal Representative of an insolvent estate must obtain an Order authorizing the filing of the wrongful death action before the action may be filed.
Consequently, you must obtain and file any Bond imposed, file your Oath of Personal Representative, and probably even actually obtain your Letters before the action may be filed.
Consequently, you must obtain your Letters and file the action within three years of Decedent’s death — or your right will be barred.
Legal Horror Story: In Williams-Moore v. Estate of Shaw, cited above, the purported Personal Representative obtained appointment but never bothered to obtain and file the Bond imposed, file her Oath of Personal Representative, or actually obtain her Letters. Acting as Decedent’s Personal Representative, she accepted on the estate’s behalf her own service of process regarding a personal injury lawsuit she had filed in her individual capacity against Decedent’s estate (she had been injured when Decedent’s car ran into a Metro bus that she was driving). Several months later, she was removed as Personal Representative, and the successor PR affirmatively defended that when she accepted her service of process on behalf of the estate, she was not qualified as Decedent’s Personal Representative. The Court agreed and dismissed her lawsuit. By this time, however, the 3-year statute of limitations had run on her claim, and it was now barred. Don’t make this mistake:
Obtain your Letters before acting as Personal Representative.