Byte of Prevention Blog

by Mark Scruggs |

The “Dead Defendant” Problem

Hypothetical: You represent an individual in a personal injury case. The tortfeasor died six months after the accident. He had a minimum limits policy, but there are significant assets in his estate. Your client’s medical bills alone exceed the policy limits of the other tortfeasor’s liability policy. Your client has no UIM coverage.

To maximize your client’s chances of recovery, you need to make a claim against the tortfeasor’s estate, as well as seek recovery from his liability insurance. Let’s explore the interplay between probate law and personal injury law with respect to the time limits for making a claim against the assets of the other driver’s estate.

Takeaway #1 – Probate law usually reduces standard tort statutes of limitation.

In this situation, the probate statutes of limitation replace the standard tort statutes of limitation. If you don’t comply with the probate statutes of limitation, you may lose your right to recover damages from the estate of the deceased driver.

Where the tort action arises before the death of the tortfeasor, notice of the injured party’s claim must be presented to the tortfeasor’s personal representative by the deadline in the notice to creditors. This date is usually three months following the personal representative’s initial publishing of a notice to creditors for the deceased tortfeasor. G.S. 28A-19-3(a). So even if there are years to go on the standard statute of limitations, if you are not attuned to the probate statutes of limitation, you may miss the opportunity to recover assets from the tortfeasor’s estate.

Takeaway #2 – Probate law sometimes enlarges the standard tort statute of limitations.

Suppose the tortfeasor died one month before the tort statute of limitations was set to expire. Your client may still present his claim to the tortfeasor’s personal representative by the three-month deadline set out in the notice to creditors. The client’s claim against the estate will not be barred, even though presentation of the claim might be made after the standard three-year tort statute of limitations has run.

There is another situation where the statute of limitations may be enlarged. North Carolina probate law provides that an injured party whose statute of limitations has not run at the time of the tortfeasor’s death, has three years following the tortfeasor’s death to file a claim against the tortfeasor’s estate if no notice to creditors has been published in this three-year period. G.S. 28A-19(3)(f).

In summary, personal injury lawyers need to be attuned to the probate statutes of limitations anytime the tortfeasor dies, and a claim needs to be made against the deceased tortfeasor’s estate. The failure to be aware of the different time limits that apply could severely prejudice your client’s rights.

About the Author

Mark Scruggs

Mark Scruggs is senior claims counsel with Lawyers Mutual specializing in litigation, workers compensation and family law matters. You can reach Mark at 800.662.8843 or at

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