Personal Injury, Probate, Employment, & Complex Litigation


How to Pursue a Claim on Behalf of a Decedent

In the news recently was that Led Zepplin was accused of stealing the chords for Stairway to Heaven. The interesting and relevant factoid is that the lawsuit was not filed by the aggrieved band members, but instead by an heir of a deceased band member.

Using this case can be illustrative on how to bring a posthumous action on behalf of a decedent.

If a cause of action survives the decedent (most do) then the personal representative or if none (or the claim is against the personal representative) a decedent’s successor in interest. So in this case, the decedent’s children were able to bring the claim on behalf of the decedent’s estate.

However, there are times when someone is in possession of property, whether it is personal or real property that in fact legally belongs to the estate. Let’s say for example instead of Led Zepplin being accused of stealing the chords for Stairway to Heaven they were accused of borrowing the literal and physical sheet music and failed to return it. At that point it is likely the best option to pursue a Probate Code Section 850 petition. What an 850 petition does is allows the return of property that is in the possession of another person but is the legal property of the Estate (it can also be used the other way where the Estate is in possession of property that is owned by another).

So, if that were the case then the personal representative of the estate could have filed an 850 petition wherever the estate was being probated and request that the court order the return of the sheet music.