Why Probate is Key to a Wrongful Death Claim in North Carolina

Why Probate is the Key to a Wrongful Death Claim in North Carolina

Attorneys Brenton Begley and Haley Matson

When a loved one passes away due to the negligence or actions of another, the emotional toll is overwhelming. Beyond the grief, families often face a confusing legal landscape. You may know you have a legitimate wrongful death claim, but did you know that in North Carolina, simply being a family member doesn’t give you the legal right to bring that claim?

On a recent episode of the Elder Law Report, Brenton Begley and Haley Matson sat down to discuss why the probate process is an absolute prerequisite for seeking justice in a wrongful death case.

The "Standing" Obstacle: Why Family Ties Aren't Enough

In North Carolina, the law is very specific about who can file a wrongful death lawsuit. Even if you are the closest living relative, you do not have “standing” to sue unless you have been appointed by the court.

Common Misconceptions:

Power of Attorney: Many people believe their Power of Attorney (POA) status allows them to act. However, a POA extinguishes the moment someone dies. * Trustees: While a Trustee manages assets within a trust, they represent the Trust, not the deceased person. They are not the proper party to bring a wrongful death suit.

The Bottom Line: Only the Personal Representative (also known as an Administrator or Executor) of the estate has the legal authority to bring a wrongful death claim.

The Role of the Probate Estate

To pursue a claim, you must “pop open” a probate estate through the court. This allows the court to officially appoint a Personal Representative who “stands in the shoes” of the decedent.

This representative is responsible for:

Gathering medical records (which often require court authorization after death).
Hiring experts to certify the claim.
Managing the litigation process.

The Clock is Ticking: Statute of Limitations

In North Carolina, the statute of limitations for a wrongful death claim is generally two years from the date of death. While two years may seem like a long time, the probate process and the discovery phase of a lawsuit take months. Haley Matson recommends opening the estate at least eight months before the two-year deadline to ensure all necessary evidence is gathered and the legal paperwork is in order.

Where Does the Money Go?

Perhaps the most surprising rule in North Carolina is that wrongful death settlements or awards do not necessarily follow your Will.

Under state law, wrongful death proceeds are distributed to intestate heirs (those who would inherit if there were no Will). This means:

Step-children or unadopted children may not be eligible to receive these specific funds.
Friends or charities named in a Will cannot receive wrongful death proceeds.
Creditors (like Medicare or hospitals) are paid out of these funds before the heirs receive their portion to ensure medical debts related to the death are covered.

Why You Still Need a Will

If the money goes to intestate heirs anyway, why have a Will? The answer is control. A Will allows you to choose exactly who will serve as your Personal Representative. You want to name someone sophisticated and capable of handling complex litigation and making tough decisions during a lawsuit.

McIntyre Elder Law is Here to Help

While we usually help clients avoid probate, a wrongful death claim is the one instance where probate is an essential tool for justice.

If you believe you have a wrongful death claim or need help navigating the probate process, McIntyre Elder Law is here to guide you. We offer free consultations to help you understand your rights and protect your family’s future.