August 1, 2017 Statute of Limitations on Counterclaims Against Decedent’s Estate Generally, statute of limitations issues applicable to claims against an estate are governed by Chapter 355 of the Texas Estates Code (“Estates Code”). Accordingly, § 355.065 of the Estates Code states that “[a] judgment may not be rendered in favor of a claimant on a claim for money that has not been (1) legally presented to the personal representative of an estate; and (2) wholly or partly rejected by the representative or disapproved by the court.” In the case of a claim for money, the applicable statute of limitations for claims against an estate are some of the shortest in Texas jurisprudence. However, commentary to § 355.065 of the Estates Code states that “[t]he requirement of presentment and disallowance of a claim before it can be sued upon applies only to ‘claims for money.’ It does not apply to unliquidated claims, such as tort claims.” See Wilder v. Mossler, 583 S.W.2d 664 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (emphasis added). As such, the applicable statute of limitations set forth in the Texas Civil Practice and Remedies Code (“CPRC”) would govern these tort counterclaims, including any issues related thereto. CPRC § 16.003 provides that a person must bring suit for a personal injury within a two-year limitations period. See also Valverde v. Biela’s Glass & Aluminum Prods., 293 S.W.3d 751, 753 (Tex. App.—San Antonio 2009, pet. denied). However, § 16.062 of the CPRC tolls for one year any action in favor of or against a dead person. See CPRC § 16.062(a). Thus, if a plaintiff dies before suit is filed, there can be up to one additional year to bring an action. Likewise, if a defendant dies before suit is filed, the plaintiff has an additional year to bring an action. Realize, however, that if a personal representative is appointed within those 12 months, then the tolling is only from the date of death to the date the personal representative qualifies. See id. at § 16.062(b); see also Sowell v. Dresser Indus., 866 S.W.2d 803, 807 (Tex. App.—Beaumont 1993, writ denied). The presumption is that a personal representative will sue or defend as appropriate. In the event there is an issue with the expiration of the above-described statute of limitations period, § 16.068 of the CPRC provides for the following: If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence. (emphasis added); see also Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990); Ware v. Everest Grp., 238 S.W.3d 855, 866 (Tex. App.—Dallas 2007, pet. denied). There may, however, be issues with the applicability of this “relation back doctrine” if the underlying lawsuit was brought solely as a wrongful death cause of action, as the wrongful death cause of action belongs solely the to the surviving spouse, children and the parents of the deceased, but not the heirs at law or the estate of the deceased. See Sowell, 866 S.W.2d at 807. Further, while the “relation back doctrine” operates to cure potential statute of limitations problems, failing to name the proper party when suing or defending an estate can be fatal. Estates, guardianships and trusts are not legal entitles and cannot sue or be sued. The proper defendant or counter-defendant, the personal representative of the estate, must be made a party. See, e.g., Price v. Estate of Anderson, 522 S.W.2d 690 (Tex. 1975); Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987). If you have a claim against someone and they die, you may need to contact an attorney immediately to protect your rights. March 18, 2019 CELEBRATING 90 YEARS (1929 -2019) McWhorter, Cobb and Johnson, LLP January 18, 2019 MCJ is pleased to announce that Michael J. Zant has been named a Stakeholder of the Firm. MCJ July 2, 2018 Establishing Venue in Civil Trials MCJ June 28, 2018 Wrongful Death–Texas Workers’ Compensation Act MCJ June 27, 2018 Texas Cemetery Law MCJ April 17, 2018 Informal Marriage (aka “Common-Law Marriage”) MCJ April 9, 2018 Homestead Exemptions MCJ October 25, 2017 Go Tech! MCJ August 31, 2017 Texting & Driving in Texas MCJ August 15, 2017 Jurisdiction for Will Contest MCJ August 1, 2017 Statute of Limitations on Counterclaims Against Decedent’s Estate MCJ June 26, 2017 Contesting a Will MCJ June 9, 2017 Welcome to our new website! 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