Short Answer

In North Carolina, only the court‑appointed personal representative (executor or administrator) or a court‑appointed collector can file a wrongful death claim. If the executor refuses, an interested person may ask the Clerk of Superior Court to appoint a neutral fiduciary (such as a collector or replacement personal representative) to file the case, or to revoke the executor’s letters for failing to act. A wrongful death lawsuit generally must be filed within two years of death, so move quickly.

Understanding the Problem

You want to know how, under North Carolina probate law, a wrongful death claim can move forward when the court‑appointed executor will not file it. The decision point is whether you can get someone authorized by the court to file before the deadline. One salient fact here is that the named executor under an old will is uncooperative.

Apply the Law

Under North Carolina law, a wrongful death action must be brought in the name of the decedent’s court‑appointed personal representative or a court‑appointed collector. If that fiduciary will not act, the Clerk of Superior Court can provide remedies in the estate proceeding, including appointing a temporary collector to file the lawsuit, or removing and replacing the personal representative for default or misconduct. Wrongful death claims are filed as civil cases in Superior Court, and the general deadline is two years from the date of death. Settlement approval by a judge is required if any beneficiary is a minor or if competent adult beneficiaries do not all consent in writing. Wrongful death proceeds are not estate assets; after limited expenses, they are distributed by intestacy to the statutory beneficiaries, not by the will.

Key Requirements

• Proper plaintiff: The claim must be filed by the appointed personal representative or a court‑appointed collector.
• Timely filing: File within the two‑year wrongful death limitations period.
• Court relief if executor won’t act: Petition the Clerk of Superior Court to appoint a collector or to remove/replace the executor for failure to act or conflict.
• Settlement approval: A judge must approve settlements if minors or nonconsenting adults are involved; proceeds require a separate accounting.
• Distribution by intestacy: After limited medical/burial expenses and fees, remaining proceeds pass to statutory heirs and are not subject to the will or most creditor claims.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-18-2 (Wrongful death; who may sue; distribution) – Only the personal representative (or collector) may sue; proceeds are distributed by intestacy after limited expenses.
• North Carolina Gen. Stat. § 1-53(4) (Two-year limitation) – A wrongful death action generally must be filed within two years of death.
• North Carolina Gen. Stat. § 28A-11-1 (Collectors) – The Clerk may appoint a collector when needed, including to institute a wrongful death action promptly.
• North Carolina Gen. Stat. § 28A-9-1 (Revocation of letters) – The Clerk may revoke an executor’s letters for default or misconduct and appoint a successor.

Analysis

Apply the Rule to the Facts: Because only a court‑appointed fiduciary can file, an uncooperative executor blocks the claim unless the Clerk intervenes. Here, the spouse or another interested person can petition the Clerk of Superior Court either to appoint a collector to file the wrongful death case now or to remove and replace the executor for refusing to act despite a viable claim. Acting quickly protects the two‑year deadline and ensures any recovery is distributed to the statutory heirs (spouse and minor child), not under the old will.

Process & Timing

1. Who files: An interested person (e.g., surviving spouse or heir). Where: Estate proceeding before the Clerk of Superior Court in the county where the estate is pending. What: Verified petition asking to appoint a collector to prosecute the wrongful death claim or to remove/replace the executor; if a new fiduciary is needed, apply for letters using AOC‑E‑201 (probate and letters) or AOC‑E‑202 (letters of administration). When: As soon as possible to preserve the two‑year wrongful death deadline.
2. Once a collector or successor personal representative is appointed, they file the wrongful death lawsuit in Superior Court. If a settlement is reached and a minor is a beneficiary, a judge must approve the settlement terms and allocations. Timeframes vary by county and case complexity.
3. After recovery, the fiduciary files a separate wrongful death accounting and distributes funds: reimburse pursuit expenses, pay approved attorney’s fees, then limited medical/burial charges, with the balance distributed to the intestate beneficiaries. The estate file reflects the distribution, and the fiduciary is discharged when accounting is approved.

Exceptions & Pitfalls

• Only the personal representative or a court‑appointed collector may file; suits by others risk dismissal.
• Conflicts of interest matter: if the executor’s interests diverge from the wrongful death beneficiaries, seek a neutral appointment promptly.
• Minors require court‑approved settlements; expect oversight of allocations and potential restricted accounts or guardianship arrangements.
• Do not commingle wrongful death proceeds with estate assets; keep a separate accounting and distribution.
• Wrongful death proceeds are not governed by the will and are generally not subject to ordinary estate creditors, but limited medical/burial costs and certain liens (e.g., Medicare/Medicaid) must be addressed.

Talk to a Probate Attorney

If you’re dealing with an executor who won’t file a wrongful death claim, our firm has experienced attorneys who can help you understand your options and timelines. 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.