How can I ensure my son’s inheritance and pursue a wrongful death claim after my ex-husband?
Detailed Answer
1. Securing Your Son’s Inheritance
In North Carolina, you must first identify all assets owned by your ex-husband at the time of his death. Assets include bank accounts, real estate, retirement plans and personal property. If your ex-husband left a valid will, the terms of that will govern how assets pass to heirs. If he died without a will, the state’s intestacy rules determine who inherits. Under N.C. Gen. Stat. § 28A-15, a minor child may inherit directly or through a representative.
2. Handling the Probate Process
You or another close family member can petition the clerk of superior court to open a probate estate. The clerk will appoint a personal representative (formerly called executor or administrator). That representative gathers assets, pays debts and distributes property according to the will or intestacy law. Working with an attorney ensures you meet all deadlines and follow statutory procedures under N.C. Gen. Stat. § 28A-2-1.
3. Establishing a Trust or Guardianship of Property for a Minor
When an heir is under age 18, a guardian of the estate or a minor’s trust will hold inherited assets until your child reaches adulthood. You can ask the court to appoint you as guardian of your son’s property. Under N.C. Gen. Stat. § 35A-1211, a guardian may manage and invest funds on behalf of the minor. Alternatively, the court can order a custodial trust under the North Carolina Uniform Transfers to Minors Act.
4. Pursuing a Wrongful Death Claim
North Carolina law allows certain family members or the personal representative of the estate to file a wrongful death action when death results from negligence or intentional harm. Under the Wrongful Death Act, N.C. Gen. Stat. § 28A-18, only the personal representative may bring suit. Damages can include loss of financial support, loss of services and loss of consortium.
5. Meeting Key Deadlines
North Carolina imposes a two-year statute of limitations for wrongful death claims. See N.C. Gen. Stat. § 1-53(4). If you miss this deadline, the court will dismiss your case. Similarly, probate petitions must occur promptly under N.C. Gen. Stat. § 28A-3-1 to avoid administrative issues.
6. Coordinating Probate and Wrongful Death Proceedings
The personal representative handles both estate administration and the wrongful death lawsuit. If you wish to pursue the claim, you should seek appointment as personal representative. After appointment, you file the wrongful death suit in the appropriate superior court. You must prove negligence, causation and damages under civil procedure rules.
7. Working with an Experienced Probate Attorney
Probate and wrongful death cases involve complex procedures and strict deadlines. An attorney with substantial probate administration experience will guide you through preparing petitions, drafting guardianship or trust documents, and filing a wrongful death complaint.
Checklist: Steps to Protect Your Son’s Inheritance and Pursue a Wrongful Death Claim
- Identify all assets and debts of your ex-husband.
- File a petition to open probate and request appointment as personal representative (N.C. Gen. Stat. § 28A-2-1).
- Set up a guardianship of property or minor’s trust under N.C. Gen. Stat. § 35A-1211.
- Gather necessary documents: death certificate, asset lists, creditor notices.
- File a wrongful death complaint within two years of death (N.C. Gen. Stat. § 1-53(4)).
- Serve the complaint on the responsible party and follow discovery rules.
- Negotiate or litigate for fair compensation to benefit your son and family.
Next Steps
If you need help ensuring your child’s inheritance and pursuing a wrongful death claim, turn to Pierce Law Group. Our attorneys have extensive experience in North Carolina probate administration. We will guide you through each step. Contact us today for a consultation by emailing intake@piercelaw.com or calling (919) 341-7055.
