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Who Can File a Wrongful Death Lawsuit?

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Losing a loved one due to the negligence of another person or party can give rise to a claim for wrongful death and may lead to the filing of a wrongful death lawsuit. A wrongful death claim can help bring you and your family financial stability in this challenging time. If you believe your loved one has suffered a wrongful death and want to pursue action, you need to know some important information before attempting to file a wrongful death lawsuit. This blog will discuss who can file in the state of North Carolina and how to file when you’re ready.

What is Wrongful Death?

Each state has a different definition when it comes to wrongful death. In the state of North Carolina, wrongful death is defined as a death “caused by a wrongful act, neglect, or default of another” person or entity (N.C. Gen. Stat. § 28A-18-2 (2021). Wrongful death can occur as the result of an automobile accident, a slip and fall, through medical malpractice, or from intentionally inflicted injury.

Had the victim survived, they could have pursued a personal injury case to receive compensation for their injuries, medical expenses, and mental anguish. Because the victim died, a wrongful death action for monetary compensation can be filed by the decedent’s personal representative on behalf of the decedent’s estate.

Who Can File a Lawsuit?

Each state has different rules about filing a wrongful death lawsuit. In North Carolina, to bring a wrongful death claim the decedent’s personal representative must open an estate. If decedent had a Will, the Executor identified in the Will must obtain Letters Testamentary from the state’s probate court.

If the decedent did not have a Will, an Administrator of the Estate will be appointed by the court. Almost anyone can serve as Administrator of the Estate. Persons who qualify may be surviving spouse, anyone who is entitled to receive property through the estate, any next of kin, any creditor, and any person of good character residing in the county where the action would be filed. This person must apply for Letters of Administration to file a wrongful death claim. But it is important to note that there are some disqualifiers when it comes to serving as the Administrator, like being a convicted felon whose citizenship has not been restored, anyone under 18, anyone adjudged incompetent, a non-resident of the state who has not appointed a resident of the state to accept service of process, a corporation, someone who has committed acts which by law constitute a forfeiture of the right to serve, someone who is illiterate, someone who the Clerk finds unsuitable, or someone previously designated as personal representative but who renounced the appointment. A bond will be required if minor children are in line to receive proceeds from the estate or in the discretion of the Clerk of Court. If a person qualified to serve as personal representative fails to do so within the first 30 days, they may be deemed to have impliedly renounced. After 30 days the Clerk of Court may appoint any interested party as personal representative. After 90 days the Clerk of Court may appoint any suitable party as personal representative.

Who Is Able to Receive the Compensation?

The compensation received in a wrongful death case will cover medical and funeral expenses as well as attorney fees. The remainder of the proceeds goes to the person or persons who are in line to inherit from the decedent through the North Carolina Intestate Succession Act. The Intestate Succession Act directs funds be distributed in classes that are prioritized based on the degree of relationship to the descendant. The surviving spouse and children (or grandchildren if children pre-deceased) are first in line. If no spouse or children survive, the parents of the deceased are next in line. Brothers and sisters of the deceased (or their children if they pre-deceased) are next. These rules are strict and illegitimate relationships are not recognized in court. Unmarried partners do not qualify as spouses and children born outside of marriage do not qualify unless legitimized by the deceased during his lifetime.

I’m Able to File the Lawsuit. What’s Next?

Before you file a wrongful death lawsuit, it’s essential to reach out to get legal advice before moving forward with your claim. The complexities of a wrongful death lawsuit are hard to deal with already, and doing it alone is not ideal. Lawyers can do complete investigations into your loved one’s death and can fight for the full compensation you deserve.

If you are seeking legal expertise on filing a wrongful death lawsuit in the state of North Carolina, give our office a call at (855) 757-4204 or fill out this form for a free consultation. You do not deserve to go through this challenging time alone. Let us fight for you.