Probate Q&A Series

Are wrongful death settlements part of a probate estate and how to resolve home co-ownership disputes?

1. Detailed Answer

Wrongful Death Settlements and the Probate Estate

Under North Carolina law, a wrongful death settlement arises after the death of the injured person. The decedent did not own or control those funds at the time of death. As a result, wrongful death proceeds do not become part of the probate estate. Instead, beneficiaries named in the wrongful death statute receive those funds directly. The statutory framework for wrongful death claims appears in Chapter 28, Article 6 of the North Carolina General Statutes (see § 28-51 et seq.).

By contrast, a survival action seeks damages the decedent would have recovered had they lived. Courts treat a survival action recovery as belonging to the estate. Those proceeds pass through probate and become part of the assets distributed under the decedent’s will or the rules of intestacy. You can find the definition of the probate estate in N.C. Gen. Stat. § 28A-2-2(4).

Resolving Home Co-Ownership Disputes

When two or more people own a home together, they usually hold title as tenants in common or joint tenants. Disputes can arise over use, maintenance costs, or sale. Owners should first review the deed or any written agreement. That document often spells out each party’s rights and obligations.

If negotiations fail, North Carolina law allows an owner to file a partition action in Superior Court. Under Chapter 46 of the North Carolina General Statutes, the court can appoint commissioners to:

  • Physically divide the property, if feasible;
  • Sell the property and distribute proceeds to each co-owner.

The partition process typically follows these steps:

  1. File a partition complaint in Superior Court.
  2. Serve all co-owners with the complaint.
  3. Attend a hearing on how to divide or sell the property.
  4. Obtain an order that sets out the method of partition.

Parties can also explore mediation before or during the court process. A mediated settlement may save time and legal fees and preserve relationships.

2. Key Points to Remember

  • Wrongful death settlements bypass probate and pass directly to statutory beneficiaries. (G.S. 28-51 et seq.)
  • Survival action proceeds belong to the decedent’s probate estate. (G.S. 28A-2-2)
  • Co-owners may negotiate a buyout or enter mediation to resolve disputes outside court.
  • For unresolved disputes, file a partition action under Chapter 46.
  • Commissioners appointed by the court can divide or sell the property and distribute proceeds.

Need Help with Probate or Property Disputes?

Wrongful death settlements and home co-ownership disputes can involve complex rules and tight deadlines. Pierce Law Group has attorneys with years of experience guiding North Carolina families through probate and partition matters. Contact us today to protect your rights and simplify the process.

Email us at intake@piercelaw.com or call (919) 341-7055.