How Are Wrongful Death Claims Handled During North Carolina Probate, and What Expenses Can Typically Be Included in a Settlement Offer?
1. Detailed Answer
When a person dies because of another’s negligence or wrongdoing in North Carolina, the estate can pursue two separate legal remedies: a survival action for injuries the decedent suffered before death, and a wrongful death claim on behalf of the heirs. Both of these claims must interact with the probate process if the decedent left assets subject to distribution.
Filing the Claim During Probate
Under North Carolina law, any creditor or claimant must file a statement of claim against the estate in the county where probate occurs. See N.C. Gen. Stat. § 28A-13-3. A wrongful death or survival claim falls into this procedure, even though these actions often remain pending while the estate continues administration.
The personal representative (also called executor or administrator) must publish notice to creditors and set a deadline—usually three months from first publication—for submitting claims. If the personal representative rejects or doesn’t act on the claim, the claimant must petition the clerk of superior court for allowance. The clerk then reviews the claim and may allow it in part or full.
Settlement vs. Court Judgment
Rather than litigate, parties often negotiate a settlement. The personal representative can propose an amount to resolve both the survival and wrongful death claims. Once reached, the probate court will review the agreement. If the court finds it fair and in the estate’s best interest, it will incorporate the settlement into estate administration and order payment from estate assets.
Statutory Damages and Expenses
North Carolina’s wrongful death statute outlines the types of damages an estate may recover. Under N.C. Gen. Stat. § 28A-18-2, a wrongful death claimant can include the following expenses and losses:
- Medical expenses incurred from injury to date of death.
- Funeral and burial costs.
- Net income the decedent would have earned from injury date to death.
- Pain and suffering the decedent experienced before death.
- Loss of support, companionship, society, and comfort to heirs.
Additionally, a survival action may recover losses the decedent suffered before death. These may overlap with wrongful death items but focus on the decedent’s personal injuries, not the heirs’ losses. When combined in a single settlement, attorneys will clearly allocate amounts to each claim type.
Recovering Costs of Estate Administration
The personal representative may also seek reimbursement for reasonable estate administration expenses. These include filing fees, publication costs, and probate attorney fees approved by the court under N.C. Gen. Stat. § 28A-18-18. The court carefully reviews these requests to ensure they serve the estate beneficiaries’ interests.
2. Key Takeaways
- Wrongful death and survival actions must both follow probate claims procedures (N.C. Gen. Stat. § 28A-13-3).
- Personal representatives publish creditor notices and set a deadline (usually three months).
- North Carolina law allows recovery of medical, funeral, lost income, pain and suffering, and loss to heirs (N.C. Gen. Stat. § 28A-18-2).
- Estate administration costs—filing fees, publication costs, and court-approved attorney fees—can also be included.
- Settlements require court approval to ensure fairness and protect beneficiaries.
If you face a wrongful death or survival claim during probate, you need clear guidance. The team at Pierce Law Group handles probate litigation and settlement negotiations every day. Contact us to protect your rights and achieve fair compensation. Email us at intake@piercelaw.com or call us at (919) 341-7055.
