Detailed Answer
When a loved one dies as the result of another party’s negligence, North Carolina law recognizes two distinct causes of action: the survival action and the wrongful death action. Each affects estate distribution differently, and existing engagement agreements with professionals can further alter net assets available to heirs.
1. Survival Action Proceeds Join the Probate Estate
Under N.C.G.S. § 28A-18-2(a) (link), the personal representative may recover damages the decedent suffered before death—medical expenses, lost wages and pain and suffering. These proceeds become assets of the probate estate. Once collected, the personal representative distributes those funds according to the will or, if there is no valid will, under the intestate succession statutes (see N.C.G.S. §§ 28A-14 through 28A-24).
2. Wrongful Death Action Proceeds Bypass the Estate
The wrongful death statute in N.C.G.S. § 28A-18-2(b) (link) provides compensation for survivors’ loss of support, consortium and funeral expenses. Unlike survival proceeds, wrongful death damages do not become part of the probate estate. The statute requires distribution as follows:
- Spouse: First $150,000 plus one-half of the next $850,000
- Children: Remainder equally, or if no spouse, all to children
These distributions occur outside the probate process and do not follow the terms of a will or the intestate formula in Article 3 of Chapter 28A.
3. Pre-Existing Engagement Agreements Create Estate Claims
When a decedent had retained professionals—lawyers, accountants or other service providers—under written engagement agreements, those contracts survive death. Under N.C.G.S. § 28A-15-3 (link), the personal representative must allow or contest claims for fees and expenses arising from those agreements. Accepted claims reduce the estate’s assets before distribution to beneficiaries.
4. Personal Representative Duties and Timing
The personal representative must:
- File a notice to creditors under N.C.G.S. § 28A-16-1 (link).
- Evaluate and resolve survival action proceeds and engagement-agreement claims before making distributions under N.C.G.S. §§ 28A-18-2 and 28A-28.
- Ensure wrongful death distributions go directly to statutory beneficiaries.
Key Points to Remember
- Survival proceeds enter the probate estate; wrongful death awards go to survivors by statute.
- Survival action damages follow the terms of the will or North Carolina’s intestacy laws (Article 4 of Chapter 28A).
- Wrongful death distributions do not reduce estate assets available to heirs under a will.
- Pre-death engagement agreements generate valid claims against the estate under N.C.G.S. § 28A-15-3.
- The personal representative must give notice to creditors and resolve all claims before distributing estate assets.
Dealing with wrongful death claims and pre-existing engagement agreements can be complex. If you oversee an estate or have lost a loved one to negligence, you need clear guidance to protect your rights and ensure compliance with North Carolina law. Our team at Pierce Law Group has experienced attorneys ready to support you through probate administration and claims resolution. Contact us today by emailing intake@piercelaw.com or calling (919) 341-7055.
