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.

Estate Administration: Qualifying as Administrator

In North Carolina, if a person dies without a Will, that person is said to have died "intestate," and the Administrator is the person who handles the deceased person's (decedent's) estate. If the person died with an original of his/her last Will, that person has died "testate," and the Executor named in the Will would be handling the estate.

This is the most important distinction to make before going through the steps of handling a deceased person's estate. A thorough search should be done to determine whether the decedent left a Will. If there is no Will, and you wish to qualify as Administrator of the decedent's estate, there is a specific protocol you must follow in order to do so.

You must first apply to the clerk of superior court on a form provided by the clerk's office called, Application For Letters of Administration. Letters of Administration are the official written authorization to carry out the responsibilities as Administrator of the estate. This application form calls for a preliminary inventory of all assets of the decedent as of the date of death. This is important because that means you as the applicant must have a general knowledge of the decedent's real estate, bank accounts, stocks, bonds, cars, and other personal property. You must also estimate the value of these assets to complete the application.

Also, the clerk will grant letters of administration to a person who applies and is qualified to serve in the following order:
(1) Surviving spouse, (2) Anyone who is to receive property as indicated by Will, (3) Anyone entitled to receive property by law (w/o Will), (4) Any next of kin, (5) Any creditor to whom decedent became obligated prior to death, (6) Any person of good character residing in the county who applies with the clerk of superior court.

You must also take an oath or make an affirmation to carry out all the duties as Administrator faithfully and honestly, and in most circumstances you will need to furnish a bond as Administrator.

This is only the very beginning of the process. Most estate administration is very time consuming and can become quite complex. If you have never handled an estate before it may be a good idea to seek attorney assitance to help guide you through the process.

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.