Do I have to open an estate to sue insurance company regarding a personal injury case and the defendant has died?

UPDATED: Oct 1, 2022

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Do I have to open an estate to sue insurance company regarding a personal injury case and the defendant has died?

I’m getting ready to file complaint and I discovered defendant died, not related to the accident. There is no estate and his 2 adult children only survivors and he died intestate have no reason to open one. Were only going after the limits of his auto insurance policy so do I have to open an estate or can I just serve the complaint to the insurance company?

Asked on June 17, 2019 under Personal Injury, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can't open an estate for the deceased--only someone who would inherit from him or was named as executor can do this. A stranger to the deceased, who only wanted to sue him or her, has no right to open an estate. 
If there is no estate, you cannot sue--there is nothing to sue. If you cannot sue, while you could certainly ask the insurer to pay your claim, if they refuse to do so, you can't force them to: you are not their insured, they have no obligation to you, and when they choose to not voluntarily pay, the only way to force them to pay would be to sue their insured and win--which you cannot do. This appears to simply be a situation where you cannot recover anything due to the circumstances.

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