The "Standing" Obstacle
To file a lawsuit, you must have what the courts call "standing." In NC, two of the most common estate planning tools cannot help you here:
- Power of Attorney
(POA): A POA completely extinguishes the moment a person passes away.
- Trustees: A Trustee represents the trust's assets, not the deceased person.
The Bottom Line: Only a court-appointed Personal
Representative (an Executor or Administrator) has the legal authority to bring a wrongful death claim. To get one appointed, you must "pop open" a probate estate.
The Clock is Ticking
Subject: Why family ties aren't enough in an NC wrongful death claim ⚖️
Dear [First Name],
Losing a loved one to someone else's negligence is an overwhelming tragedy. Beyond the immense grief, families are suddenly forced to navigate a confusing legal landscape.
Many people assume that being the closest living relative automatically gives them the right to seek justice. However, in North Carolina, simply being a family member does not give you the legal right to file a wrongful death claim.
On a recent episode of The Elder Law Report, attorneys Brenton Begley and Haley Matson sat down to discuss a critical legal hurdle: Why probate is an absolute prerequisite for a wrongful death case.
The "Standing" Obstacle
To file a lawsuit, you must have what the courts call "standing." In NC, two of the most common estate planning tools cannot help you here:
Power of Attorney (POA): A POA completely extinguishes the moment a person passes away.
Trustees: A Trustee represents the trust's assets, not the deceased person.
The Bottom Line: Only a court-appointed Personal Representative (an Executor or Administrator) has the legal authority to bring a wrongful death claim. To get one appointed, you must "pop open" a probate estate.
The Clock is Ticking ⏱️
In North Carolina, the statute of limitations for wrongful death is two years from the date of death.
While two years sounds like plenty of time, gathering medical records, hiring
experts, and navigating the courts takes months. Haley Matson recommends opening the probate estate at least eight months before the deadline to ensure your family's rights are protected.
Where Does the Money Go?
Surprisingly, wrongful death settlements do not follow a Will. By North Carolina law, these funds must go to intestate heirs (the default legal relatives). This means step-children, friends, or charities named in a Will cannot receive these specific proceeds.
Why do you still need a Will? Control. A Will allows you to choose exactly who
will serve as your Personal Representative—ensuring a trusted, capable person is in the driver's seat to manage complex litigation.
![[Elder Law Report] Wrongful Death and Probate in North Carolina](https://hostedimages-cdn.aweber-static.com/NjcxMjE0/original/7973b065265e4fb8975843de54c75cb2.png)
