Do I Need to Open an Estate to Pursue a Wrongful Death Car-Accident Claim in North Carolina?
Detailed Answer
Yes—North Carolina law requires that a wrongful-death lawsuit be filed by a duly appointed personal representative of the person who died. Under N.C. Gen. Stat. § 28A-18-2, only the personal representative may sue for wrongful death, negotiate an insurance settlement, or sign a release. In almost every situation, that means opening an estate file in the county where the decedent lived.
Why an Estate Is Needed
- Legal Standing. Courts and insurers will only recognize a personal representative as the proper party to handle the claim.
- Authority to Collect Money. Settlements and jury verdicts are paid to the estate, not to individual family members. The personal representative then distributes the funds according to § 28A-18-2 and the Intestate Succession Act or the will, after costs and liens are paid.
- Statutory Deadlines. The lawsuit must be filed within two years of death. Opening the estate quickly ensures the representative is in place before time runs out.
Who Can Serve as Personal Representative?
Under § 28A-4-1, priority typically goes to:
- The executor named in a valid will.
- If no will, the surviving spouse, adult children, parents, or other heirs in descending order.
The clerk of superior court issues either Letters Testamentary (if there is a will) or Letters of Administration (no will). A bond may be required unless the will waives it or all heirs consent to waive.
Can a “Small Estate” Procedure Work Instead?
The affidavit for collection of personal property (§ 28A-25-1) is not enough. That shortcut only allows collection of bank accounts or similar property under $20,000 ($30,000 if spouse). It does not create authority to file or settle a wrongful-death claim.
Limited Administrator vs. Full Estate
If the only purpose is the wrongful-death case, the family can ask the clerk to appoint a limited administrator whose powers are confined to pursuing the claim (§ 28A-13-3(a)(23)). This avoids some reporting requirements, but a final accounting is still required once the case ends.
Distribution of Wrongful-Death Proceeds
Even though the estate files the lawsuit, the money is not part of the probate estate for creditor purposes. After paying:
- Case expenses and attorney fees approved by the clerk;
- Reasonable funeral expenses;
- Medical bills related to the fatal injury;
- Any Medicaid or state health plan liens (capped at 50% of net recovery under § 108A-57);
the balance passes to the surviving spouse, children, or other heirs as if the decedent died without a will, regardless of the will’s terms.
Helpful Hints
- File Quickly. It can take weeks to obtain Letters; starting early protects the two-year statute of limitations.
- Gather Basic Documents. You will need the original death certificate, paid funeral bill, and a list of heirs with addresses when you apply.
- Bond Waivers Save Money. If all heirs sign a Waiver of Bond, the clerk often eliminates the surety requirement.
- Choose a Trustworthy Representative. The personal representative will handle large sums and negotiate with insurers—select someone organized and dependable.
- Don’t Sign Insurance Papers Prematurely. Any settlement or release signed before Letters are issued is unenforceable.
Bottom line: Opening at least a limited estate is the only lawful way to pursue a wrongful-death claim stemming from a North Carolina car accident. Doing so promptly protects your family’s rights and maximizes recovery.
Need guidance? Our firm’s seasoned wrongful-death attorneys can open the estate, secure appointment of a personal representative, and fight for full compensation. Call (919) 341-7055 today for a free, compassionate consultation.
