What are the laws regarding a wrongful death recovery?

There is no more difficult case than one where a loved one has been lost due to the negligence of another.  How can you begin to place a monetary value or something that is priceless?

When faced with a wrongful death situation, here is an outline of the steps that will need to be taken.

1.  You must open an estate.  This is done by going to the Clerk of Court in the county where the person lived or died, and making an application to open the estate.  If the person who died left a will,  then the person appointed in the will to serve as executor will be responsible for opening the estate.  If the person died without a will, then the Clerk will appoint the next of kin to serve as the administrator of the estate, after getting the consent of the other heirs.

2.  Once the estate is opened, the Clerk will issue "Letters of Testamentary".  These "Letters" are somewhat like a power of attorney and it authorizes you to manage the affairs of the estate - from paying creditors to collecting the assets of the estate and distributing them.

3.  North Carolina General Statute 28A-13-3 gives the executor or administrator the exclusive right and responsibility for bringing a wrongful death claim.  The statute of limitations to bring a legal action to recover for wrongful death is two years from the date of death.

4. What may be recovered in such an action is also set forth in the statute.  What may be considered in evaluating such a claim are:

    (1) Expenses for care, treatment and hospitalization incident to the injury resulting in death;

    (2) Compensation for pain and suffering of the decedent;

    (3) The reasonable funeral expenses of the decedent;

    (4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;

        a. Net income of the decedent,

        b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

       c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;

4.  Proceeds from a wrongful death statute are distributed to the deceased person's heirs pursuant to a statute and regardless of whether the person had a will.  Any money recovered is distributed as if the person died without a will.  Also, any proceeds that you may recover may not be used to be creditors of the estate (except for some limited funeral and medical expenses).  However, if the person lived and was conscious before he or she died, the estate may also be entitled to recover for personal injuries (medical expenses, pain and suffering, etc.) in addition to a wrongful death recovery.  In this case, the funds do pass through the estate (under the will, if one exists).

5.  If a settlement is reached in a wrongful death action, it must be approved by all of the heirs or by court order.  (Court approval is always required if an heir is a minor).

If you have additional questions, email me.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.