Short Answer

In North Carolina, a wrongful death lawsuit for a child generally must be filed by the child’s personal representative (the executor or administrator of the child’s estate), not by individual family members in their own names. If multiple family members are involved, they usually do not file separate wrongful death cases; instead, they participate through the estate case, and any recovery is typically distributed to the legal heirs under North Carolina’s intestacy rules.

Understanding the Problem

If your child was hit by a car and died at the scene, you may be asking who in North Carolina can legally start the wrongful death case: can a parent file, can both parents file, and what happens if other relatives also want to be involved. This question matters because the court can dismiss a case filed by the wrong person, and family disagreements can slow down the appointment of the right person to act for the child’s estate.

Apply the Law

Under North Carolina law, a wrongful death claim is brought through the child’s estate. The person with legal authority to file is the estate’s personal representative (sometimes called an “administrator” if there is no will, or an “executor” if there is a will). The personal representative files the lawsuit in the appropriate North Carolina trial court (typically Superior Court) and has duties to pursue the claim, handle settlement decisions, and distribute any recovery according to North Carolina law.

Key Requirements

• Proper plaintiff (right person to sue): The wrongful death case must be brought by the child’s personal representative, acting on behalf of the estate.
• Estate appointment first: Someone must be formally appointed by the Clerk of Superior Court to serve as personal representative before the case is filed (or very shortly thereafter, depending on timing and strategy).
• One case, not competing cases: Even if several relatives are grieving and involved, the claim is typically pursued as a single wrongful death action through the estate.
• Heirs control distribution, not who files: The people who receive any recovery are usually the child’s legal heirs under North Carolina’s intestacy rules, which may not be the same as “everyone who wants to participate.”
• Fiduciary duties: The personal representative must act in the best interests of the estate and the beneficiaries, keep appropriate records, and follow court/estate procedures.

What the Statutes Say

• N.C. Gen. Stat. § 1-22 (Actions by personal representative after death) - Confirms that certain actions may be commenced by a decedent’s personal representative after death, reflecting the general rule that the estate’s representative is the proper party to sue.
• N.C. Gen. Stat. § 29-13 (Intestate succession framework) - Provides the statutory framework for how an intestate estate is distributed, which is commonly used to determine who receives wrongful death proceeds when there is no will.

Analysis

Apply the Rule to the Facts: Because the child died at the scene after being hit by a car, the wrongful death claim in North Carolina would generally need to be filed by the child’s personal representative, not by individual relatives filing separately. If more than one family member wants to be involved (for example, both parents or other relatives), the key legal step is still the same: the court must appoint one personal representative to act for the estate. The personal representative then pursues the case for the benefit of the heirs, and distribution is handled under North Carolina’s inheritance rules rather than by “who filed first.”

Process & Timing

1. Who files: A parent or other qualified person typically applies to serve as the child’s personal representative. Where: The Clerk of Superior Court in the county where the estate proceeding is properly filed. What: An estate administration application and related paperwork to be appointed as administrator (or executor if there is a will). When: As soon as practical, because the wrongful death lawsuit must be filed within the applicable statute of limitations.
2. Authority is issued: Once appointed, the personal representative receives official authority (letters) and can sign releases, hire counsel for the estate, and file the wrongful death complaint in the appropriate North Carolina court.
3. Resolution and distribution: If the case settles or results in a judgment, the personal representative handles payment of allowed items and then distributes the net recovery to the proper heirs through the estate process, with court involvement if required.

Exceptions & Pitfalls

• Filing in the wrong name: A common mistake is a parent (or another relative) filing the wrongful death lawsuit individually instead of having the estate’s personal representative file it. That can lead to delay or dismissal problems.
• Family conflict over who serves: When multiple family members want control, disputes can arise about who should be appointed personal representative. Those disputes can slow the process and put deadlines at risk.
• Misunderstanding “who gets the money”: Being the personal representative does not automatically mean you personally receive the recovery. Distribution typically follows North Carolina heirship rules, and the personal representative must follow those rules.
• Notice and approval issues: Depending on the circumstances (including the child’s heirs and the structure of the settlement), additional court oversight may be needed, and skipping required steps can create later challenges.

Conclusion

In North Carolina, a wrongful death case for a child is generally brought by the child’s personal representative, not by individual family members filing separate lawsuits. When multiple relatives are involved, the case still proceeds through one estate representative, and any recovery is typically distributed to the child’s legal heirs under North Carolina’s intestacy rules. The most important next step is to open the child’s estate and have the Clerk of Superior Court appoint a personal representative promptly so the lawsuit can be filed before the deadline.

Talk to a Personal Injury Attorney

If you’re dealing with the death of a child after a car crash and you’re unsure who is allowed to file the wrongful death case or how multiple family members fit into the process, our firm has experienced attorneys who can help you understand your options and timelines. Reach out today. (919) 313-2729.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.