Wrongful Death Claims and Probate in North Carolina

A wrongful death can leave families grieving and furious, but the legal system has rules that can stop a claim before it even starts. We break down one of the most misunderstood parts of a North Carolina wrongful death lawsuit: you usually cannot file just because you’re related to the person who died. Legal standing belongs to the estate, which means the case must be brought by a court-appointed personal representative through the probate process.

We talk through the common traps people fall into, like assuming a power of attorney still works after death or thinking the trustee of a trust can step in and sue. We explain the difference between an executor or administrator and a trustee, why “letters” from the clerk matter, and how probate becomes the gateway to pursuing the claim. We also cover the two-year statute of limitations for wrongful death and why waiting to “see if there’s a case” can quietly burn your timeline.

Medical records are often the starting point, especially when medical malpractice is suspected, so we outline practical options for getting records after death, including when a small estate affidavit may help versus when a full estate needs to be opened. Finally, we dig into where wrongful death proceeds go under North Carolina law: typically to intestate heirs, even if a will tries to direct those funds elsewhere, which can affect stepchildren, non-adopted children, and other loved ones.

If you’re trying to understand probate, wrongful death claims, and the real first steps in North Carolina, hit subscribe, share this with someone who needs it, and leave a review to help others find the show.

Transcript

Who Can Legally File

Brenton Begley 0:10

Hello and welcome to the Elder Law Report. I am Brenton Begley, attorney and partner with McIntyre Elder Law, and I am joined by esteemed associate Haley Matson. Hey Brenton. All right, Haley. Today I'm good. I'm good. Because today we're talking about something very important, something that folks maybe don't understand. Um, and that is probate and how it relates to a wrongful death case. So uh, you know, you may have a wrongful death claim for a loved one who's passed away. And the question for a lot of people is okay, how can I bring that claim? So if I'm a family member of a loved one who's passed away, I believe that they have a legitimate claim for wrongful death, and I want to make that claim. Can I, by virtue of the fact that I'm related to them, bring that claim in the state of North Carolina?

Haley Matson 1:15

Unfortunately not. Just being a family member doesn't give you like the legal standing, the right to bring that claim. Um, actually, only the representative of the estate can bring that claim.

Brenton Begley 1:29

Well, what if I'm under a power of attorney?

Haley Matson 1:32

Power of attorney extinguishes once somebody dies. So you might have had the right before for maybe negligence, but once that person dies, you no longer have the power over them.

Power Of Attorney Ends At Death

Brenton Begley 1:43

Okay, so during their life as a legal representative, duly appointed under a power of attorney, I could if the power of attorney let me, um, I could likely bring a lawsuit on their behalf. But and maybe if that lawsuit was still going on, you know, I what what happens then if the lawsuit's still going on and they die? Power you said the power of attorney extinguishes, so you would have to substitute the power of attorney for somebody else. Well, what if they have a trust? Right? Couldn't the trustee bring that?

Trusts Don’t File These Lawsuits

Haley Matson 2:21

Trustees not really the same as a personal representative of an estate. An estate is like the personal representative stands in as that person. The estate is now that person legally. So you have to have that PR. A trust is more private and it's kind of a funnel or a bucket for assets to be moved without needing probate, but that trustee is not a representative of the dead person. Trustee is a representative of the trust.

Brenton Begley 2:52

Right, right. So with a personal representative, that could be an administrator or an executor of the estate, and they're appointed by the court.

unknown 3:02

Yes.

Brenton Begley 3:02

So they actually stand in the shoes of the decedent. Whereas the trustee, upon the death of the creator of the trust, no longer represents the the interests of that individual. They may be carrying out their wishes, but they oh, if I do share a duty to the trust and the beneficiaries, the ultimate beneficiaries of that trust.

Haley Matson 3:24

Correct. Yeah.

Brenton Begley 3:26

So they they they aren't the proper party to bring this lawsuit. So you said personal representative. Um, the personal representative is an umbrella term for whoever's been appointed by the court over the estate.

unknown 3:43

Correct.

Probate Timeline And The Two-Year Clock

Brenton Begley 3:43

So what you're telling me is what you're telling me is a probate estate is necessary. A probate estate is necessary to begin a wrongful death claim.

Haley Matson 3:54

Correct. Yep, probate is necessary for wrongful death.

Brenton Begley 3:59

So uh do I have a time limit on when I can open the estate and bring this claim?

Getting Medical Records After Death

Haley Matson 4:06

Wrongful death is two years from the date of death. So usually when I have folks coming in who have questions about wrongful death, I let them know you want to get the estate popped open probably eight months at least, if not longer, before that statute of limitations, that two years is up because there's a whole bunch of other stuff with wrongful death that needs to be discovered, certified, all of that good stuff, which I'm sure we can get into in another ELR instead. But usually you want to get that popped open sooner rather than later death.

Brenton Begley 4:40

What if I'm trying to get what if I'm just look, you know, I don't even know if I have a claim yet. I want to see if there was medical malpractice. Really, what I need to get a hold of is medical records. Um and my loved one has passed away. Can I just, you know, as power of attorney, get the medical records or while somebody's alive, sure.

Haley Matson 5:01

But once they die, you're gonna need to either pop open a full estate for if the person who died at over 20K in assets, or you can try to work with an attorney to open up a small estate where you can get an affidavit that will allow you to collect those medical records. And if they're good, they look good for the case and they're certified by an expert, you'll pop that open to a full estate to manage.

Why Wrongful Death Money Ignores Wills

Brenton Begley 5:26

So the full estates where I'm you know, the full estates where I'm appointed as personal representative, I have letters, I have this order from the court saying that I can act on behalf of the estate, and that's necessary uh as a prerequisite to be able to bring a wrongful death case, right? So what about okay? So if I think that I could someday be subject to some action that causes my wrongful death, can I anticipate that in the will and direct where those wrongful death funds go in the will?

Haley Matson 5:59

Technically, wrongful death funds are going to go intestate. That's what the statute says. So even if we're anticipating it, it technically has to go to the intestate heirs.

Brenton Begley 6:12

Okay. Okay. So this is really important in the context of when like a male dies in North Carolina with children that were born outside of a marriage. You know, they may not be entitled to any of the funds. Because even if you left the will naming those children, they're not intestate heirs because they're illegitimate children.

Haley Matson 6:31

Yep. Same with like stepkids or anything like that, kids who you've not legally adopted, friends, anyone else you would might want to give those to, it's not gonna matter.

Brenton Begley 6:43

Gotcha. So really, uh the best reason to have a will in this context. Uh, there's many good reasons to have will if you're going through the probate process, but in this context, is really the name the proper person to be able to bring an action like this on behalf of your intestate heirs and your state.

Haley Matson 7:04

Correct. Yep.

Brenton Begley 7:05

Because many times for most people, you know, the the people who are they're gonna leave the something to in the will is similar to the intestate heirs, usually pretty similar.

Haley Matson 7:15

Sometimes there's changes, but yeah.

Why Probate Exists Plus Next Steps

Brenton Begley 7:18

Right. Good, good. So um absolutely probate is is something necessary um in this context. We usually counsel our clients to avoid probate if they can, but there's just some situations where you cannot avoid probate. This is one of them. Um, the state has decided to run these cases through the probate process really to ensure that the funds are accounted for, that predators are paid. A lot of times those creditors are Medicare, Medicaid, or some other medical creditor that where some type of medical debt was incurred incident to the wrongful death because of somebody's actions, maybe in a car wreck, for example. They were the person was hospitalized before they ultimately passed away. And it's to make sure that those funds are paid and the estate is reimbursed and the money ultimately goes to those heirs and everything's done properly. They can't account for that without making everything go through this process. And we already have a process in place called probate, so they run it through that. That's kind of the rationale behind it. Um, so for most things, you should still set your assets up to avoid probate. Um, we uh we don't plan uh to ever have to you know deal with wrongful death necessarily, um, as far as uh anticipating it, wanting it, advocating for it. But you know, things happen, so you should have um you know those contingencies covered. A will can be very helpful to name the right person to act in your behalf. Um, if you name somebody just because you think that they would be offended if they weren't named executor, you know, it might not be the right move. You should probably name somebody that's going to be sophisticated enough to be able to decide um what to do after you've passed away and to make the the right choices whether to pursue litigation on your behalf, because more than just wrongful death. I mean, what if someone owed me money and uh they didn't pay me, right? True, true, they can pay that too. That guy's no longer around because I owed him a bunch of money, right? But if I'm under a contract, they can still uh my state can still go after them through my personal representative, through my executor. So absolutely, it's a great discussion. If you're looking to pursue possibly a wrongful death case, um probate is the first step. So give us a call. We're happy to help. We offer a free consultation for anyone looking to um engage in those types of services. So to take advantage of that free consultation, all you need to do is give us a call, 704259-7040, or you can visit our website, mcelderlaw.com, and schedule your free consultation online. Thank you, Haley.

Haley Matson 10:15

Thanks, Brenton. Bye.