How Wrongful Death Claims Interact with North Carolina Probate
When someone passes away due to another party’s negligence or misconduct, their personal representative (also called a fiduciary) may file a wrongful death action under North Carolina law. These proceeds remain separate from the decedent’s probate estate. Understanding this separation, along with how attorney fees are paid and what happens when contractual distribution terms clash with intestate rules, helps you protect the estate and the claim.
1. Separation of Wrongful Death Proceeds and Probate Assets
Under North Carolina law, damages recovered in a wrongful death action do not become part of the decedent’s probate estate. Instead, the personal representative handles those funds outside of probate. This separation means:
- The probate court distributes only the assets that belonged to the decedent at death, such as bank accounts, real property, and personal belongings.
- Wrongful death recoveries flow through the wrongful death proceeding itself and then to the beneficiaries designated by statute or contract in that action.
2. Payment of Attorney Fees
Attorneys who handle wrongful death claims work on a contingency basis. They receive a percentage of the recovery awarded in the wrongful death action—not from probate assets. By statute and ethical rule, these fees come directly out of the wrongful death award before it goes to the beneficiaries. This ensures probate distributions remain intact for heirs under N.C. Gen. Stat. § 28A-13-3, which governs the distribution of personal property.
3. Distributions Under Intestate Law vs. Contractual Terms
If the decedent died without a will, North Carolina’s intestate laws in Chapter 28A determine who inherits the probate estate. However, a valid contract (for example, a beneficiary designation or a written agreement signed by the decedent) can direct certain assets outside of intestacy.
When contractual distribution terms conflict with intestate rules:
- The probate court first verifies whether the contract meets North Carolina’s requirements for enforceability.
- If the contract qualifies as a transfer by operation of law or nonprobate transfer, the court enforces it under N.C. Gen. Stat. § 28A-15-2.
- If the contract fails to meet the statute’s formalities, the court defaults to the intestate distribution scheme.
4. Resolving Disputes
Disputes over fee separation, wrongful death proceeds, or conflicting contracts often end up before the clerk of superior court. The court may:
- Hold a hearing to interpret the contract and the decedent’s intent.
- Appoint a special administrator to protect the estate until issues resolve.
- Apply controlling statutes to settle questions about fee priority and beneficiary rights.
Throughout this process, careful documentation and clear pleadings help speed an equitable resolution.
Key Points to Remember
- Wrongful death recoveries remain outside probate and go directly to beneficiaries under the wrongful death action.
- Attorney fees for wrongful death claims come from the award itself, not the probate estate.
- Valid contracts can override intestate laws if they meet statutory requirements.
- The probate court enforces contracts properly executed under N.C. Gen. Stat. § 28A-15-2 or defaults to intestate succession otherwise.
- When conflicts arise, the clerk of superior court resolves them based on evidence, statute, and case law.
If you face a wrongful death claim and need guidance on separating attorney fees, distributing estate assets, or resolving conflicts with North Carolina’s intestate laws, contact Pierce Law Group. Our attorneys have decades of experience and can help you protect your rights and the estate’s integrity. Reach out today by emailing intake@piercelaw.com or calling (919) 341-7055.
