How to Protect an Ongoing Lawsuit If You Pass Away

Many homeowners contact us on behalf of elderly parents or loved ones who are involved in solar panel disputes. When age, illness, or end-of-life planning becomes a factor, it’s important to take proactive steps to make sure their legal rights — and yours — are protected.

Most people understand the importance of having a will or trust to handle their property after death. But fewer realize that lawsuits don’t simply pause or disappear when you pass away. If you’re involved in litigation, you need to plan ahead so your case doesn’t stall, expire, or get dismissed because no one has the authority to step in.

One of the biggest misconceptions is that a power of attorney (POA) covers this situation. It does not. A POA ends the moment you die, meaning your agent cannot continue a lawsuit for you. To ensure continuity, you need proper estate planning tools like wills or trusts.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Estate and probate laws vary by state, and real property transfers (including TOD deeds) have strict formalities. For guidance specific to your situation, please consult a qualified estate or real estate attorney.

Below, we’ll walk through the key steps to protect an active case and make sure your wishes are carried out.

Put Instructions in Writing Now

Start by telling your litigation attorney exactly what you want done if you pass away. This can be added as an engagement letter addendum. Specify whether you want the case continued, dismissed, or settled within certain parameters (e.g., “do not settle for less than $X”). A written directive helps your attorney move quickly and prevents confusion among family members.

Keep a copy of those instructions with your estate documents so your executor or trustee can find them.

Name a Litigation Representative in Your Will or Trust

Your executor or trustee is the default decision-maker, but you may prefer someone else to manage the lawsuit. You can authorize this person in your will or trust as the litigation representative.

It’s also critical to give your executor or trustee clear powers in writing: authority to continue, settle, or dismiss claims, with any limits you want spelled out. Many attorneys recommend a revocable trust since it avoids probate delays.

Clarify the Role of a Personal Representative

When a homeowner passes away, a personal representative (sometimes called an “executor” or “administrator”) must be formally appointed through probate before a lawsuit can continue. This representative acts on behalf of the deceased person’s estate – essentially “standing in their shoes” for any ongoing claims.

Make sure your will names who you want to serve in this role. Without that designation, the court will choose someone, which can delay your case or cause family disputes.

Also note that a power of attorney ends at death. It cannot substitute for a personal representative. Having a clearly identified personal representative in your estate documents is essential to keeping your solar case active.

Plan for Litigation Costs

Cases can require filing fees, experts, depositions, and other expenses. If your estate is tied up in probate, there may be no money available to cover these costs in time.

Avoid delays by creating a litigation reserve: either a trust with funds set aside, or a payable-on-death bank account under executor control. If your case is on contingency, confirm with your attorney how post-death costs will be handled and whether the firm will continue on the same terms.

Consider Property Deeds and Trust Options

If your lawsuit involves a lien tied to real property (such as a UCC lien recorded against your home) it’s wise to think about how ownership of that property will be handled if you pass away. Courts and lenders will look to whoever holds legal title, so ensuring smooth transfer of ownership can prevent unnecessary delays.

Quitclaim Deeds

A quitclaim deed is a simple document that transfers whatever ownership interest you currently hold in a property to another person or entity. Unlike a warranty deed, it doesn’t guarantee a clear title. It only conveys the interest you actually have. For estate or litigation planning, this tool can be useful in several scenarios:

• Spousal or Family Transfers: You may choose to transfer your interest to a spouse or adult child so they can immediately control the property if you pass.
• Avoiding Probate Delays: If the property is solely in your name and goes through probate, lien release or litigation issues may stall. A quitclaim deed filed during your lifetime can bypass that bottleneck.
• Coordinating With Litigation: If your property is central to your lawsuit, having the successor already on title may help streamline the litigation process. 

Trust Ownership

For more flexibility, many families prefer placing the property into a revocable living trust:

• Immediate Authority: The named successor trustee automatically steps in to manage or transfer the property at your death. No probate required.
• Consistency With Other Estate Assets: Trusts can hold litigation instructions, financial reserves, and real property in one structure, streamlining the process for your heirs.
• Lien Coordination: If your lawsuit seeks a lien release, the trust provides continuity of ownership so the trustee can accept the release, sign settlement documents, or coordinate payoff without waiting for court appointment.

Which Option to Choose?

Quitclaim Deed: Quick, inexpensive, and often useful when transferring property directly to a spouse or single heir. Best for simple ownership situations.

Trust Transfer: More comprehensive, often recommended if you have multiple heirs, multiple properties, or want to integrate the property with broader estate planning.

Work with an estate planning lawyer to decide whether a quitclaim deed, trust, or both fit best with your overall strategy.

Transfer on Death (TOD) Deeds

Some states allow homeowners to record a Transfer on Death (TOD) Deed, also called a Beneficiary Deed, which automatically transfers the property to a designated heir when you pass away.

This can simplify ownership transfer and may make it easier for your heirs to resolve or release any solar-related liens. However, a TOD deed does not remove valid liens or obligations, and it should always be prepared by an estate or real estate attorney to ensure it complies with your state’s laws and coordinates properly with your ongoing case.

Preserve Key Evidence and Documents

Litigation relies on documents and proof. Don’t leave your executor scrambling.

Create a folder (both physical and digital) containing your retainer, pleadings, contracts, photos, inspection reports, expert opinions, utility bills, and communications with installers or lenders. Include a log of missed deadlines if relevant. Make sure your executor knows where to find passwords or keys.

Also, alert witnesses or vendors where to send updates (such as your attorney’s email) if you die.

If you are elderly, seriously ill, or have memory issues such as dementia, consider documenting their experience as soon as possible.

While an informal video or written statement can help family members recall key facts, only a properly recorded deposition carries legal weight as sworn evidence. If you’re concerned about preserving testimony, talk to your attorney about scheduling a recorded deposition before it becomes too late.

Address Substitution and Probate Deadlines

Courts typically require a formal “notice of death” and then a motion for substitution of parties within a strict timeframe (federal courts use Rule 25 as the model). If nobody acts, the case can be dismissed.

To prepare, include instructions in your will or trust. Share your litigation file with your probate lawyer so they understand the stakes and deadlines.

Clarify Settlement Preferences

Disputes often arise when heirs disagree about settlement terms. You can prevent this by documenting your wishes.

Write down whether your estate may accept settlements, set minimum or maximum numbers, and specify any non-monetary deal terms you support or oppose. Clarify who it is that will make decisions regarding the settlement.

Keep these notes in both your estate documents and your attorney’s engagement addendum.

Maintain Continuity of Counsel

If you want your current law firm to continue representing your estate, authorize it in writing. Alternatively, nominate a backup firm you trust. This avoids the risk of your case being delayed while a new attorney gets up to speed.

Keep Family and Beneficiaries Informed

Surprises fuel conflict. Let your executor, trustee, and at least one backup know where your litigation file and login information are stored. The more transparent you are, the less chance your heirs will fight about how the case should proceed.

Common Pitfalls to Avoid

• Relying on a POA: Power of attorney ends at death; use wills or trusts instead.
• Failing to fund costs: Without liquidity, estates can’t pay fees or experts in time.
• No written instructions: Ambiguity invites disputes and delays.

Three Steps You Can Take Today

1. Ask an estate attorney for a short written addendum naming a successor decision-maker and authorizing substitution.
2. Add a clause in your will or trust giving your executor or trustee authority over “all pending and future claims,” with any limits you prefer.
3. Put a copy of your litigation folder with your estate papers and tell your executor where to find passwords.

Final Thoughts

Planning for litigation after death isn’t morbid. 

It’s practical. 

Court rules and deadlines vary by state and tribunal, so consult both your estate attorney to tailor these steps. With clear instructions, proper funding, and coordinated estate documents, you can ensure your case continues without unnecessary delays or disputes.

Important Limitations on Claims After Death

When a homeowner passes away, some legal claims, especially those based on personal experiences or emotional distress, may no longer apply because the original witness can’t testify. However, property-related claims such as breach of warranty, lien disputes, or damage to the home can usually continue through the estate.

Your estate attorney can help evaluate which parts of your case remain viable and guide your personal representative on next steps.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Estate and probate laws vary by state, and real property transfers (including TOD deeds) have strict formalities. For guidance specific to your situation, please consult a qualified estate or real estate attorney.