Jan22026
Probate Q&A Series

Do we need to keep the estate open while a separate wrongful death claim is pending, and who should handle communications and any settlement distribution? – North Carolina

Short Answer

Usually, the estate does not need to stay open just because a wrongful death claim is pending in North Carolina, because wrongful death proceeds are generally not estate assets and are handled through the personal representative in a separate track. Even so, the personal representative (executor) is typically the only person with authority to communicate and act for the wrongful death claim, and the personal representative must keep wrongful death money separate and distribute it under North Carolina’s wrongful death statute (not under the will). If a settlement is reached, court approval may be required unless all recipients are competent adults who consent in writing.

Understanding the Problem

In North Carolina, when a person dies and an executor is appointed, questions often come up about whether the estate administration must remain open while a separate wrongful death claim is being pursued. The decision point is whether the wrongful death claim and any recovery must be handled inside the estate administration, or whether it can be handled separately while the executor continues (or finishes) the normal estate tasks. A related issue is who has authority to communicate with the wrongful death lawyer, insurers, and the court, and who is responsible for receiving and distributing any settlement funds.

Apply the Law

Under North Carolina law, a wrongful death claim is brought by the decedent’s personal representative (often the executor named in the will). The money recovered in a wrongful death case is generally not treated as an asset of the decedent’s probate estate, and it is generally not available to pay ordinary estate creditors, with limited statutory exceptions. Because of that separation, the estate administration and the wrongful death claim often run on parallel tracks: the Clerk of Superior Court oversees the estate file and accountings, while a judge (or another approving body in certain cases) may need to approve a wrongful death settlement.

Key Requirements

  • Proper party in charge: The personal representative (executor/administrator) has the authority and responsibility to pursue, settle, receive, and distribute wrongful death proceeds.
  • Separate handling of funds: Wrongful death proceeds generally are not estate assets and should not be mixed with probate estate funds; they require separate tracking and, in practice, separate accounting.
  • Statutory distribution order: After allowed expenses and fees, the remaining wrongful death proceeds are distributed to the heirs under intestate succession rules (not under the will), subject to required approvals and any applicable liens.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, an executor is named, and there are probate assets to administer (vehicles titled to the decedent and a bank/investment account), plus retirement plans that may pass by beneficiary designation outside probate. If a wrongful death claim is pursued, the executor (as personal representative) generally handles the claim and any settlement communications, but the recovery is typically handled separately from the probate estate and distributed under the wrongful death distribution rules rather than the will. That separation often means the estate can move forward on its own timeline, as long as the executor keeps clean records and follows required approval steps for any settlement.

Process & Timing

  1. Who files: The personal representative (executor) brings and controls the wrongful death claim. Where: The probate estate is administered through the Clerk of Superior Court (Estates) in the county where the estate is opened; the wrongful death case is handled in the appropriate civil forum (often Superior Court) or by settlement without a filed lawsuit depending on the situation. What: The executor uses letters testamentary/letters of administration to prove authority and should maintain a separate record (and often a separate account) for wrongful death receipts and disbursements. When: Timing is driven by the wrongful death case and by estate deadlines set by the Clerk; if a limitations issue is in play, § 1-22 can affect timing in certain survival-type situations.
  2. Communications while the claim is pending: The executor is the point person for the wrongful death lawyer and insurers. Communications should be consistent and documented because the executor owes duties to the people who will receive the wrongful death distribution and must be able to account for what happened to the funds.
  3. Settlement and distribution: If a settlement is reached, the executor signs on behalf of the wrongful death claim. Court approval may be required unless all recipients are competent adults and consent in writing. The executor then pays allowed case expenses and attorney fees, addresses any permitted medical/burial payments and any applicable liens, and distributes the remaining balance to the heirs under intestacy rules, keeping wrongful death funds separate from probate estate funds.

Exceptions & Pitfalls

  • Commingling funds: A common mistake is depositing wrongful death proceeds into the estate checking account and treating them like probate money. Wrongful death proceeds generally require separate handling and separate accounting.
  • Assuming the will controls the payout: Even when there is a will and trust, wrongful death proceeds are typically distributed under intestacy rules after allowed deductions, not under the will’s beneficiary scheme.
  • Skipping required approvals: If any recipient is a minor or legally incompetent, or if not all recipients are competent adults who consent in writing, a judge’s approval is commonly required before a settlement can be finalized and distributed.
  • Medical/burial payments and liens: Wrongful death proceeds are generally protected from ordinary creditors, but certain medical, burial, and government reimbursement issues can still affect what gets paid before distribution. Missing these issues can delay distribution and create personal representative exposure.
  • Conflict of interest in communications: The personal representative acts in a fiduciary role. If the personal representative’s personal financial interests diverge from the duties owed in administering and distributing funds, separate counsel or a change in fiduciary may be necessary to avoid a conflict.

Conclusion

In North Carolina, a pending wrongful death claim usually does not require keeping the probate estate open, because wrongful death proceeds are generally handled separately and are not treated as estate assets. The personal representative (executor) is typically the only person authorized to communicate, settle the claim, receive the funds, and distribute them in the statutory order, with the remaining balance paid to heirs under intestacy rules. The next step is to have the personal representative coordinate with counsel and set up separate tracking for wrongful death funds before any settlement is finalized.

Talk to a Probate Attorney

If a wrongful death claim is pending while an estate is being administered, clear roles and clean accounting can prevent delays and disputes. Our firm has experienced attorneys who can help explain who has authority to act, what approvals may be required, and how distributions should be handled under North Carolina law. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.