How Do I Open An Estate So I Can Pursue A Wrongful Death Claim?

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In this blog post, we provide a step-by-step procedure for people wanting to open an estate and provide some commentary on the estate administration process.  

How to initiate the estate administration process?

In order to bring a wrongful death claim, the estate administration process must be initiated and the Clerk of Court must open an estate for the deceased.  Generally, opening an estate begins with making an application to the Clerk at the Superior Court Clerk’s Office in the deceased’s county of residence at the time of death.  If a decedent was not a resident in North Carolina at the time of death, the estate may be administered in any county in which the decedent left property or assets or into which any property or assets belonging to the estate may have come.  If a nonresident died in any North Carolina county, the estate may be administered in any North Carolina county.

Prior to going to the Clerk’s office to open the estate, you’ll want to take the following steps to prepare:

  1. Find the decedent’s will, if there was one.  Wills are often kept in safe places such as safes, locked desk drawers, safe deposit boxes, or with other important documents.  Wills are sometimes held by an attorney for the decedent, or sometimes they are deposited with the Clerk of Court by the decedent prior to their death for safe keeping.  If you think there was a will but you have been unable to locate the will where you think the decedent would have kept it, check with the Clerk of Court in counties where the decedent formerly lived.
  1. Obtain a certified copy of the death certificate.  In many cases, funeral homes will handle obtaining death certificates as part of the services they provide.  Ask whether the funeral home will handle this process for you.  If not, or if the funeral was a while ago, these documents can be obtained through the NC Department of Health and Human Services.  We can help with that too.
  1. Locate and Identify Assets, to the extent possible.  It will be helpful to have an understanding of the deceased’s assets.  However, it might not be possible to have a complete picture before the estate is opened.  A letter of authority from a Clerk of Court is often required to access information regarding a decedent’s assets.  Banks and other institutions typically require it before they will disclose information about a deceased’s assets.
  1. Identify next of kin, and make a list.  If there is not a will specifying who gets what, it will be helpful to know who might be entitled to assets from the estate when the estate is administered under North Carolina’s intestate succession laws.
  1. Contact the Clerk of Court in the appropriate North Carolina county.  The clerks at the Clerk of Court’s office are always very friendly and can be a wealth of information.  Give the clerk’s office a call and confirm that you have all the materials necessary.

When making the application, you should bring with you: (1) a will, if there was one, (2) a certified death certificate, (3) an application and preliminary inventory of the decedent’s property, and (4) a check made out to the Clerk of Court for the appropriate county in the amount of $120.00.

Who can open an estate?

If there is a will, the executor or executrix named in the will should open the estate.  If there is no will or the person in the will is unable or not willing to serve, a person qualified to be an administrator under North Carolina’s intestate succession laws will be named.  The qualifying person will be granted letters of testamentary or letters of administration.

Letters testamentary and letters of administration are legal documents issued by the Clerk of Court.  These letters give a person formal authority to serve as the personal representative of the estate. There are generally two types of letters. Testate letters are issued to the executor or personal representative named in a will.  Letters of Administration are granted to an Administrator when a person dies without a will and intestate succession laws apply.

Persons who may be granted testamentary letters or letters of administration are, in the following order of priority: (1) the surviving spouse, (2) anyone receiving property under the will, (3) anyone who would receive property if there was no will, (4) any next of kin, (5) creditors of the decedent, and (6) anyone of good character living in the county.

Once the letters are issued and an executor or administrator is appointed, that person can now act to pursue a wrongful death claim on behalf of the estate.  As explained on our practice area page about wrongful death, the wrongful death claim is treated as an asset of the estate. 

Different estate administration processes explained.

There are different types of estate administration.  Many people know the estate administration process by the term “probate.”  Indeed, probate is another word for estate administration.  Probate or probating the will also refer to the process by which a court determines that a “purported” will is actually the final will and is legally valid to pass title to property.

The types of estate administration, and the individual complexities within each estate, can vary.  Some estates are administered by “full administration.”  Many small estates may be administered through simpler processes.  

In full administration, the clerk of superior court gives authority to a personal representative of the decedent who inventories the decedent’s assets, gives public notice to the decedent’s creditors, pays the valid debts of the decedent, and distributes the decedent’s remaining property to the appropriate persons.

For smaller estates, full administration is not necessary.  Qualifying estates are estates that generally contain less than $30,000.00 of assets.  After the appointment of an administrator or executor, qualifying estates can be administered by the use of an Affidavit for Collection of Personal Property of Decedent.  

There is also a streamlined process for estates where the spouse will receive all the property, or where the estate only includes enough money to cover funeral and burial costs. There may be other small estate options available depending on the circumstances of each estate.  A summary administration may be pursued when the surviving spouse is the sole heir.  This option is available regardless of whether there was a will.

What if I need help?

The experienced North Carolina wrongful death attorneys at Horton & Mendez are available to assist our clients with this process.  We do everything we can to aid our clients during the difficult time following an untimely death.  That includes assistance with the estate administration process.  We also can bring clarity to our clients by providing insight on how wrongful death claims are handled by insurance companies.  Put our experience on your side.  Contact us today.  

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