Rule 25. Substitution of parties
Effective January 1, 2001
(A) Death.
(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by the court, any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons. Motion for substitution may be made before or after judgment, and if substitution is not reflected in the papers upon which the appeal is based, any party shall, by notice filed with the Clerk of the court on appeal, advise the court on appeal of the substitution of any party. However, if the case is returned to a lower court after the judgment or order upon appeal becomes final, the motion may then be made in such lower court.
(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death may be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
(B) Incompetency.
If a party becomes incompetent, the court upon motion served as provided in subdivision (A) of this rule may allow the action to be continued by or against his representative in the same manner as against a decedent party.
(C) Transfer of interest.
In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (A) of this rule.
(D) Persons substituted on death--Personal representative or successors in interest.
The proper party or parties to be substituted for the party who dies under subsection (1) of subdivision (A) of this rule includes:
(1) a successor in interest whose rights or obligations do not pass to the representative of the deceased party’s estate; or
(2) if the interest passes to or binds the representative of the deceased party’s estate, either such representative or, if it is established that the estate of the deceased party is closed or that opening of such estate is unnecessary, the successor of such estate.
(E) Necessity of filing claims against estate when representative substituted--Proceedings to enforce judgment, execution and judgment liens.
A claim based upon a judgment against a party who dies before or after judgment is entered shall be allowed by the court administering his estate even though the claim is not filed with such court if the representative of such estate is substituted as a party within the time when such claim or judgment could have been filed as a claim against the estate under the probate code. Judgments upon an action against a party who dies, whether entered before or after his death shall be satisfied from the assets of his estate by the decedent’s representative, and no execution, proceedings supplemental or enforcement orders shall issue on the judgment after the party has died as against his property; but this provision shall not prevent enforcement of execution liens, judgment liens, liens acquired by judicial proceedings, security interests, mortgages, liens or interests in property acquired before his death and being enforced by or under the judgment, subject to any rights of the representative to redeem or stay enforcement as now provided by law.
(F) Public Officers; Death or Separation from Office.
(1) When a public officer is a party to an action or other proceeding in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is automatically substituted as a party. Proceedings following substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
(2) A public officer who sues or is sued in an official capacity may be described as a party by the officer’s official title rather than by name; but the court may require the officer’s name to be added.