WHO SUES WHEN THE PERSONAL REPRESENTATIVE OF AN ESTATE IS ALSO A DEFENDANT?

In Fisher v. Huckabee, the SC Supreme Court affirmed the circuit court’s dismissal of a relative’s lawsuit seeking to remove the personal representative of an estate because the relative believed the estate had a claim against the personal representative.

The relative filed suit, litigated the matter in the probate and circuit courts, appealed to the SC Court of Appeals and lost, then appealed to the SC Supreme Court and lost again. Why?

She didn’t lose the case based on the merits – in the end, the Supreme Court ruled against her because of a “technicality.” She filed the lawsuit on behalf of the estate as the estate’s “real representative,” and, although there is a clear procedure in the probate code to have a “special administrator” appointed in this situation and caselaw that explains the process, she never asked the probate court to appoint her as “special administrator.”

Because the civil rules require that actions be prosecuted “in the name of the real party in interest,” and, in this case, the only authorized representatives for an estate would be the personal representative or a “special administrator,” the SC Supreme Court affirmed the dismissal of her case.

WHO REPRESENTS THE ESTATE?

The personal representative of the estate winds up business, settles claims against the estate, and files lawsuits on behalf of the deceased to recover funds that are owed to the estate.

There are a lot of other terms floating around that can complicate the process – but, most of them mean the same thing. Before the probate code was passed into law in SC, for example, “executor” and “administrator” were terms with specific meanings – only an “executor” or “administrator” could bring a lawsuit for wrongful death on behalf of an estate.

After the passage of SC’s probate code, however, only the personal representative is authorized to bring a wrongful death action, and the terms “executor” and “administrator” are now defined as the “personal representative.”

The term “real representative,” used by the pro-se litigant in Fisher, also had a separate meaning over a hundred years ago, but it was left out of SC’s probate code and has no use in today’s probate courts. Today, all these terms are interpreted to mean “personal representative:”

• Personal representative: Is authorized to file suit on behalf of the estate.
• Executor: is a personal representative.
• Administrator: is a personal representative.
• Real representative: is a personal representative.

There is only one other related term that has meaning in today’s probate courts: Special administrator.

Who Can File Suit if the Personal Representative Has a Conflict?

So, what happens when there is a potential claim on behalf of the estate against the personal representative?

When there are “circumstances where a general personal representative cannot or should not act,” the SC Probate Code provides for the appointment of a “special administrator.”

So, if the estate may have a claim against the personal representative, and 1) the personal representative is not taking action, or 2) the personal representative cannot take action because they have an inherent conflict in the matter, someone needs to ask the probate court to appoint a special administrator pursuant to the SC Probate Code.

Once the special administrator has been approved and appointed by the probate court, the administrator can act against the personal representative on behalf of the estate…

Do I Need a Probate Lawyer?

The relative who litigated Fisher v. Huckabee may have an opinion.

You can represent yourself in court, whether the case is criminal or civil. But, should you? As the Fisher case illustrates, probate law can be complex, confusing, and the courts are not forgiving of mistakes made by pro-se litigants – for the most part, people who try to do it on their own are at a severe disadvantage.

GOT AXELROD?

A probate and estates lawyer on the Axelrod team, with both probate experience and trial experience, can maximize the chances of success when difficult issues arise in a complex probate case. Call your SC estate planning and probate attorney at Axelrod and Associates today at 843-353-3449 or complete our contact form to set up an initial consultation.