Claims by the Estate

In General

    All causes of actions or proceedings survive the death of a party or the death of one or more joint parties, whether plaintiff or defendant. See PEF Code §3371; 42 Pa. C.S. §8302. An action or proceeding to enforce any right that survives the decedent may be brought by the personal representative alone or with any parties as though the decedent were alive. See PEF Code §3373.

Generally, any actions which survive the decedent are subject to the usual statutes of limitations. Any statute of limitations, however, which would bar any debt or liability owed to the estate within one (1) year after the decedent’s death is automatically extended until the end of one (1) year following the date of death, whether or not there is a failure or delay in opening the estate. See PEF Code §3376.

The personal representative may be substituted for the decedent in an action or proceeding which is pending on the date of the decedent’s death. If the plaintiff in a pending action dies, a suggestion of death should be filed and a personal representative appointed within one (1) year thereafter. If this is not done, any defendant or respondent may petition the Court to abate the decedent’s cause of action. Copies of the petition are served upon the executor named in the will, if known to the defendant, otherwise upon all next of kin entitled to letters of administration. The Court shall abate the action as to decedent’s cause of action if the delay in taking out letters is not reasonably explained. See PEF Code §3375.

Any action or proceeding to which a fiduciary is a party is not abated by the fiduciary’s death or resignation or by the termination of the fiduciary’s authority. The successor of the fiduciary may be substituted in the action or proceeding in the manner provided by law. See PEF Code §3374.

The funds recovered under any action (other than a wrongful death action) on behalf of the decedent’s estate are includible on death tax returns and are subject to claims of creditors against the estate and are available for distribution to beneficiaries of the decedent’s probate estate.

2.   Survival Actions
    Survival actions are brought by the personal representative on behalf of the estate. While any cause of action or proceeding survives decedent’s death, PEF Code §3371, a “survival action” is that which the decedent could have brought if the decedent had survived. In personal injury circles, it is most commonly thought of as arising from a negligent act, usually one that caused decedent’s death. It must be commenced within two (2) years from the date of the negligent act. See 42 Pa. C.S. §5524.


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