Suggestion of death

On Sep 21, 6:33 am, prucker <pjr...@gmail.com> wrote:
> Personal property tax debt suit has been filed in District Court,
> Dallas County, Texas against my brother in law who is deceased.

Was he served with process, before he died?  Had he already filed an answer to the complaint, either pro se (representing himself) or by his legal counsel?  Or was he already dead when the suit was filed?

> I understand I should file a "Suggestion of death" with the court

Why do you feel "I should" do this?  IMO you have no obligation unless you're the lawyer representing your BIL in a pending suit in which he's already been served.   But I don't know TX law and YMMV.

In general, the only reason a "suggestion of death" needs to be filed is that a suit by, or against, a dead person is a legal nullity.  A lawyer whose client dies while suit is pending, no longer has a client on whose behalf he can legally do anything further in the suit, unless and until the proper substitute party is brought in -- usually, that is the personal representative (sometimes called "executor" or "administrator") of the decedent's estate.  The "suggestion" is a formal filing that puts everyone concerned on legal notice that a party (over whom the court has already acquired jurisdiction) has died and that the PR therefore needs to be substituted.

Once a person has been served with process and is participating in the suit by counsel, legal ethics require the lawyer for the opposing side to have no further direct contact with him, but only thru his lawyer.  So the lawyer for the tax authority has no easy way of knowing your BIL died _after_ he was served, unless BIL's lawyer tells him, by filing such a paper.  As you state below, this filing is a formal notice that starts the clock ticking for the plaintiff to amend his suit to name the personal representative of BIL's estate (they probably do not need to individually sue all his "heirs" as you state) as the nominal defendant.

Service of process on the defendant is the necessary first step for the court to acquire personal jurisdiction over him and this is a requirement of 5th and 14th amendment "due process": you know, the part that says no one shall be deprived of life, liberty or property without due process of law.   If BIL has not yet been served, no one on your side of the case needs to do _anything_ IMO unless there is some peculiar (and possibly unconstitutional) quirk of TX law I don't know about.

> and the suit will have to be changed within 90 days to be against his
> heirs or it will be dismissed.

Why do you feel that is _your_ problem to solve?   If plaintiff is unable to serve your BIL (perhaps because he's dead) they will have to figure this out on their own.  You have no duty to help them sue BIL's estate.

> BTW, there is no estate.

By definition, there's _always_ an estate.  What I think you may mean is, "BIL's estate is worthless" or "his estate has no assets", or "we the heirs are not planning to submit the estate to probate".  If someone is being sued on a matter that survives his death (I don't know if a TX personal property tax claim is such) most USA states have a procedure whereby the plaintiff may open a probate estate for the decedent solely for purposes of having a party they can sue, even over the objections and without the cooperation of the natural heirs.  And such a suit may be able to seize assets of the decedent that would not otherwise have to pass thru probate.

> His business
> equipment is worthless, but available to be seized.

See, you recognize he _does_ have an estate, even if you the heirs were not planning to do anything about it.

> I mailed certified
> letters and death certificates to the legal firm who filed the suit
> and to the District Court clerk.

IMO you had no duty to do that, but it's not like you were giving away state secrets -- the plaintiff firm could have looked him up in the state or county vital records if they were wondering why they were unable to serve him, and they would eventually figure it out on their own.

> The clerk didn't know if this was
> sufficient to be the "Suggestion of death" filing - she did put my
> letter and the death certificate in the casefile.

It may or may not be what TX procedure requires the lawyer of a person who dies after being served to do, but again, IMO unless you are BIL's lawyer, you are simply being a volunteer with no legal obligation when you are doing these things.   The legal term "officious intermeddler" was invented to describe this type of getting legally involved in matters where you are not required to do so because they are really no official business of yours.

> I called the lawfirm
> and had to leave a voicemail. Do I have to go to the Court, by Monday
> (the date my brother in law was directed to appear)

OK, finally you imply that BIL may in fact have been served, but you give no hint whether or not this happened before he died.  If the process papers came after he died, I'm guessing they were handed to someone else in BIL's household, as many states' service of process rules permit?  Or were they sent to BIL's address by certified mail and someone of his relatives signed for the receipt?

In either event, though, I'm guessing that no actual appearance in person on the appointed date is required even of a live defendant; that is just the deadline by which a written answer needs to be filed with the court clerk.   But TX law on this may be weird and YMMV.

And even more, why do YOU feel you need to be the one to appear in court, or file any papers?   You can't appear in court on behalf of someone else unless you are a member of the bar.  So, even if all the stuff you've been doing was necessary (as I'm not sure it was) YOU WILL DEFINITELY need to hire a lawyer for BIL's estate if you intend to take it to the next step, i.e. filing a written answer, and entering an appearance on behalf of BIL's estate.

> to file something
> else that is the "suggestion of death". I'm trying to help out my
> sister in law and her kids. Thanks for your help.

The best thing you can do to help them now is to hire a lawyer to do this because, frankly, what you are doing sounds awfully lot like practicing law without a license.

This lawyer you consult may be able to give you simple, quick, cheap advice that no further procedure is necessary, and that there is no further liability exposure to the heirs; that's certainly worth paying for half an hour of his time, or he may even tell you that for free in an initial consultation (be sure to ask first).

Or, he may tell you that it is necessary to open an estate, appoint a PR, and have a lawyer enter an appearance and fight the suit, if you and your fellow heirs want any hope of not winding up in the poorhouse yourself because otherwise the tax authorities will seize your house, etc.

I really don't know which will be the case here based on your sketchy post, but once you give a local lawyer all the facts he can tell you which, and can be of great help either way.  So, you need to consult a local lawyer versed in TX tax law and familiar with local procedure and follow his advice.   If you don't, and if you continue to try this equivalent of a do-it-yourself appendectomy, don't say I didn't warn you.  Good luck,

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