How Pursuing a Wrongful Death Claim Affects Probate When There Is No Will

Detailed Answer

When a person dies without a will in North Carolina, the court appoints an administrator to manage the estate under Chapter 28A of the North Carolina General Statutes. If the decedent’s death results from another party’s negligence or intentional act, the administrator may pursue two distinct legal actions:

• Survival Action: This claim addresses the decedent’s own losses—such as medical expenses and pain and suffering before death. Under N.C.G.S. § 1-53.1, the cause of action survives the decedent’s death and becomes an asset of the estate. N.C.G.S. § 1-53.1
• Wrongful Death Action: This claim compensates the decedent’s heirs for their pecuniary losses—like funeral expenses, loss of support, and loss of companionship. The personal representative files it on behalf of statutory beneficiaries under N.C.G.S. § 1-53.2. N.C.G.S. § 1-53.2

Because the survival action proceeds form part of the probate estate, the administrator must include any recovery in the inventory of assets. The wrongful death award for heirs does not pass through probate in the same way; it bypasses estate distribution rules and goes directly to the beneficiaries designated by statute.

Impact on Probate Administration

Pursuing a wrongful death claim alongside probate can affect timing and distribution in several ways:

1. Asset Inventory and Valuation: The administrator must list the survival action as an estate asset. All recoveries for decedent-related losses become available to pay debts and expenses.
2. Creditor Claims and Priority: North Carolina requires the administrator to notify creditors. Recovery from the survival action may satisfy outstanding debts before distributing any remainder to heirs. See Chapter 28A, Article 7.
3. Distribution of Proceeds: After paying valid debts and administrative expenses, the estate distributes remaining survival-action proceeds under intestate succession rules in Chapter 28A. Meanwhile, wrongful death awards go directly to beneficiaries named by statute.
4. Statute of Limitations: North Carolina sets a two-year deadline to file a wrongful death claim (N.C.G.S. § 1-53.2). Missing that deadline can forfeit both the wrongful death and survival actions, leaving no recovery for the estate or heirs.
5. Probate Timeline: Litigation can extend the probate process. Administrators often wait for claim resolution before final distribution to ensure all assets and liabilities are accounted for.

Key Considerations for Administrators and Heirs

• Appoint an experienced administrator as early as possible so claims are timely filed.
• Review all potential claims—including survival and wrongful death—before finalizing the estate inventory.
• Communicate with heirs about how different portions of any recovery will be allocated.
• Monitor statute of limitations deadlines to protect survival and wrongful death causes of action.
• Keep detailed records of expenses, debts, and distributions to comply with Chapter 28A accounting requirements.

Conclusion and Call to Action

Navigating wrongful death claims alongside probate administration can be complex—especially when there’s no will. You need clear guidance on filing deadlines, asset classification, creditor notice and distribution rules under North Carolina law.

Pierce Law Group has years of experience helping families and administrators through both probate and wrongful death litigation. For a consultation, email intake@piercelaw.com or call us at (919) 341-7055. We’ll explain your rights and help you pursue the full recovery you deserve.