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 personal representative may pursue a wrongful death claim under N.C. Gen. Stat. § 28A-18-2. North Carolina does not recognize a separate survival action for personal injury claims that do not survive the decedent’s death under the wrongful death statute. These claims may interact with the probate process because the action must be brought by the personal representative, although wrongful death proceeds are not estate assets for general distribution.
Filing the Claim During Probate
Under North Carolina law, the personal representative brings the wrongful death action. See N.C. Gen. Stat. § 28A-18-2. A wrongful death claim is not a creditor’s claim against the estate under N.C. Gen. Stat. § 28A-13-3, even though the personal representative prosecutes the action while the estate may remain open.
The personal representative must publish notice to creditors and set a deadline—generally three months from first publication—for submitting claims against the estate. That creditor-claims procedure does not govern the estate’s wrongful death claim against a third party.
Settlement vs. Court Judgment
Rather than litigate, parties often negotiate a settlement. The personal representative can propose an amount to resolve the wrongful death claim. Once reached, court approval may be required in appropriate circumstances, including for the compromise of claims involving estates, wrongful death proceeds, or minors or incompetents. If approved, the recovery is administered and distributed as provided by law.
Statutory Damages and Expenses
North Carolina’s wrongful death statute outlines the types of damages that may be recovered. Under N.C. Gen. Stat. § 28A-18-2, a wrongful death claimant can include the following expenses and losses:
- Expenses for care, treatment, and hospitalization incident to the injury resulting in death.
- Compensation for pain and suffering of the decedent.
- The reasonable funeral expenses of the decedent.
- The present monetary value of the decedent to the persons entitled to receive the damages recovered, including net income, services, protection, care, and assistance.
- Society, companionship, comfort, guidance, kindly offices, and advice to the persons entitled to the damages recovered.
Additionally, damages recoverable under the wrongful death statute may include items relating to the decedent’s injuries before death. When combined in a single settlement, attorneys will clearly allocate amounts as needed.
Recovering Costs of Estate Administration
The personal representative may also seek reimbursement for reasonable costs and expenses of pursuing the wrongful death action, including attorneys’ fees, as provided by N.C. Gen. Stat. § 28A-18-2. The clerk or court may review these matters as required by law.
2. Key Takeaways
- In North Carolina, the personal representative brings the wrongful death claim under N.C. Gen. Stat. § 28A-18-2.
- The estate’s notice-to-creditors procedure generally does not govern the estate’s wrongful death claim against a third party.
- North Carolina law allows recovery of injury-related medical expenses, funeral expenses, the decedent’s pain and suffering, and the present monetary value of the decedent to the beneficiaries, including society and companionship (N.C. Gen. Stat. § 28A-18-2).
- Reasonable expenses of pursuing the wrongful death action, including attorneys’ fees, may also be allowed as provided by statute.
- Settlements may require court approval in appropriate circumstances to protect those entitled to the recovery.
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.
