Wrongful death cases in North Carolina are not necessarily personal injury cases even though they do involve injury. They cannot be filed with insurance companies. They must be filed in court as a formal litigation lawsuit because there are a number of factors on which the court will be required to rule before the case may proceed. While there will often be a personal injury claim associated with the case, wrongful death claims are actually separate legal matters in North Carolina because the financial proceeds will be the property of the surviving family. They never become a component of the decedent estate when it goes to probate. The preliminary issues can be complicated with legal technicalities, which means it always takes an experienced wrongful death attorney to represent the case in North Carolina.
How, When, and Where To File A Wrongful Death Case in North Carolina
1 – How to File
North Carolina law stipulates that a wrongful death action may only be filed by the personal representative of a decedent estate. The first rule of determination is if there is an enforceable last will and testament. If an individual is named in the will as representative of the estate, they will be assigned standing to file a wrongful death claim first. If there is no one assigned in a will, standing then proceeds to the immediate family, and in particular a legal spouse.
When there is no legal spouse, the next individuals in line will be dependent children if the decedent is an adult. If none of these family connections exist, standing then moves to the closest relative of the deceased. If the deceased is a minor child, standing is assigned to parents or a legal guardian first, which can include grandparents. Each case is unique in this respect. A wrongful death attorney then files the case on behalf of this individual.
2 – When to File
The NC statute of limitations time period on wrongful death legal actions in North Carolina is two years. However, this time can be “tolled” under certain circumstances when the court sees fit and an experienced wrongful death attorney can justify suspending the time clock to the court. This can be a technical process, and there are multiple scenarios when it could happen. One is when the decedent was injured initially and then later succumbed to the injuries.
Personal injury cases also are restricted by a statute of limitations, but this time frame is three years. This is a basic reason why it is important to consult with a legal professional as soon as possible when a family member is seriously injured and cannot handle their own business needs personally. Settling a personal injury case first can be a positive for an eventual successful wrongful death case because all evidence from the prior case can be used in the wrongful death litigation as well. While they are separate legal issues, they are inextricably connected. And, having the same wrongful death attorney who represented the injury case means they know all aspects of the case from the beginning.
3 – Where to File
Most wrongful death cases are filed at the state level, but not always. Federal cases are filed with the federal district court for the region in which the death occurred. State court cases are different. These cases can be filed first in any court within the state system to get them on the record, but they are usually filed with the circuit court in the jurisdiction where the original accident or injury occurred. A change of venue can also be granted in cases that should be handled in a different jurisdiction.
Many wrongful death cases go before a jury, and the jury members cannot have already formed an opinion on what a potential outcome may be. It is not necessarily unusual for a case to be adjudicated in a different location from which it was originally filed, but there must be extenuating circumstances for a change of venue order. Media reports regarding the case can be an issue as well, especially when the death occurred as a result of an intentional heinous act that was worthy of reporting to the public. While this is relatively rare, the details of how the death happened can be vital in determining where the case will finally be adjudicated.
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It is important to understand that winning a wrongful death case is not a simple process. They are indeed more detailed and highly scrutinized than a standard personal injury claim. And not only are they defended stronger due to a variety of potential outcomes, but the level of negligence must also be elevated as well in most situations. Some fatal accident cases will not warrant wrongful death, while others will be relatively obvious based on the material evidence presented in the case. This means that the wrongful death attorney who is chosen to process the case is vital to a successful outcome for the surviving family. Our attorneys have represented multiple wrongful death victims, and we understand how to craft a case for maximum financial compensation while dealing with any potential complications. Call us today because time is of the essence in any wrongful death legal action.