Detailed Answer

When a loved one dies because of someone else’s negligence or wrongful act, their family may pursue two separate legal actions under North Carolina law: a survival action and a wrongful death claim. Each affects the probate process and estate distribution in different ways.

1. Survival Action vs. Wrongful Death Claim

Under N.C. Gen. Stat. Chapter 28A, a personal representative steps into the decedent’s shoes to pursue a survival action. This allows recovery for the decedent’s medical bills, lost wages, and pain and suffering before death. Any award from a survival action becomes part of the probate estate.

The wrongful death claim is a separate cause of action under N.C. Gen. Stat. § 28A-18.2. It compensates surviving spouses, children, and—if no spouse or child—parents for loss of support, society, and companionship. Courts distribute wrongful death awards directly to these beneficiaries, bypassing probate.

2. Probate Administration and Personal Representative Duties

The personal representative must list the survival action in the estate inventory under N.C. Gen. Stat. § 28A-13-3. They must decide whether to file the action by the statutory deadline. Failure to preserve this claim can reduce the total assets available to heirs under the will or intestacy.

Since wrongful death proceeds go directly to beneficiaries, the estate does not include those funds. That means heirs receive any inheritance from probate plus any wrongful death award they qualify for under the statute.

3. Impact on Distribution of Estate Funds

Survival action recovery becomes estate property. After paying final debts, taxes, and administrative expenses, the estate distributes remaining funds according to the will or the North Carolina rules for intestate succession in N.C. Gen. Stat. § 29-14.

Wrongful death proceeds do not reduce the probate estate. Beneficiaries receive them in addition to any share of the probate estate. If a beneficiary is both an heir and a wrongful death recipient, they receive both payments.

4. Timing and Coordination

Many survival actions continue alongside probate. A personal representative may need court approval to settle. Wrongful death settlements often occur after probate closes, but they do not reopen the estate. Proper coordination ensures creditors are paid, probate closes on time, and beneficiaries receive every recovery they deserve.

Key Points to Remember

• Distinguish between survival actions (estate asset) and wrongful death claims (paid directly to survivors).
• List any survival action as an estate asset under N.C. Gen. Stat. § 28A-13-3.
• Wrongful death awards bypass probate and go straight to statutory beneficiaries.
• Survival action proceeds become part of the probate estate and follow the will or intestacy rules.
• The personal representative must protect the estate’s right to bring a survival action.
• Distribution rights under the wrongful death statute are separate from inheritance rights.
• Close coordination between probate administration and tort counsel ensures full recovery for heirs and survivors.