Making a Claim When the Driver Who Caused the Crash Has Died

On this page:

• Start with the insurance claim
• Suing the estate within the insurance
• If your losses exceed the insurance
• How the deadlines change
• If the driver had little or no insurance
• If you are the driver's family
• At a glance

Some crashes end with the death of the driver who caused them, while the other people involved are left with injuries and damaged cars. Grief and confusion follow, and so do practical questions about how anyone is compensated when the responsible person is gone. California has specific rules for this, designed so that an injured person can reach the driver's insurance without a long probate process.

Start with the insurance claim

A driver's liability insurance for a crash does not disappear because the driver died. In many cases the injured person simply files a claim with the deceased driver's insurer, as they would with any at-fault driver, and the insurer investigates and resolves it. Report the claim promptly, provide the police report and medical records, and keep a record of every contact. Your own insurer can help, and your own collision coverage can repair your car while the liability claim is pending.

Suing the estate within the insurance

If a lawsuit becomes necessary, the Probate Code offers a streamlined route for claims the driver was insured against:

• No personal representative needed. Under section 550, an action to establish the deceased person's liability, where that liability was covered by insurance, may be started or continued against the estate without joining a personal representative or successor.
• How the case is named and served. Section 552 requires the defendant to be named as "Estate of (name of decedent), Deceased," with the summons served on a person the insurer designates in writing or, if none, on the insurer itself.
• Recovery is limited to the insurance. Under section 554, the damages sought must be within the insurance limits and coverage, or any recovery beyond them is waived, and a judgment can be collected only from the insurance, not from property in the estate.

If your losses exceed the insurance

When the damages are larger than the policy limits, section 554 allows the case to reach beyond the insurance only if the personal representative is joined as a party and the injured person files a creditor's claim in the estate under the Probate Code's claim procedure. That route involves the probate process and its own deadlines, and it is where legal advice becomes essential.

How the deadlines change

Ordinarily, a lawsuit for personal injury has a two-year deadline, as our guide to California deadlines explains. A death changes the calculation. Section 366.2 of that code says that when a person who could be sued dies before the limitations period runs out, an action may be brought within one year after the date of death, and that one-year period is tolled only in narrow circumstances. For insured claims brought under the Probate Code route, section 551 provides that, if the normal limitations period had not expired at the time of death, the action may be started within one year after that normal period expires.

These rules interact in ways that depend on the facts, so treat them as a reason to act early rather than as a calculation to rely on. A lawyer can tell you which deadline applies to your situation.

If the driver had little or no insurance

If the deceased driver had no insurance or not enough, your own uninsured or underinsured motorist coverage may pay, up to your limits. In California that coverage is included with bodily injury liability unless you rejected it in writing, so check your declarations page. Medical payments coverage, if you carry it, can also help with medical bills regardless of fault.

If you are the driver's family

If someone close to you caused a crash and died, the claims from others involved are generally made against the estate and handled by the deceased driver's insurer, which will usually defend them within its policy limits. Family members do not generally become personally responsible for the deceased person's liabilities simply by being family. Notify the insurer of the death, pass along any letters or legal papers you receive, and consider getting advice before agreeing to anything on the estate's behalf.

At a glance

Your own uninsured and underinsured motorist limits matter most in situations like this. If you want to review them, you can talk to a licensed broker.