what is an application and assignment year's allowance north carolina

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Raleigh Estate Planning and Corporate Law Attorneys

What is a “Year’s Allowance”?

February 24, 2017 By wrlaw

One of the really helpful estate administration forms that folks may not know about is what’s called a “Year’s Allowance”.

The “Year’s Allowance” form is something we use a lot when it comes to dealing with the estate of a spouse who has died and left a widow or widower.  In situations where the couple had most of their assets set up jointly or had named each other as beneficiary, there often is very little that needs to be transferred from the deceased spouse to the surviving spouse.  Most often, it’s things like vehicles or small checks made payable to the deceased spouse as reimbursement for insurance premiums.

The Year’s Allowance allows for the assignment of up to $30,000.00 in personal property (vehicles, money, etc.) from the deceased spouse to their surviving spouse, without having to go through probate.  To the extent that the value of the property in the name of the deceased spouse is $30,000.00 or less, it can be transferred to the surviving spouse by simply completing one form and having it certified by the Clerk of Court in your county.

An example: Joan dies in 2014, leaving her husband, Bill.  Joan had an IRA, of which Bill was the named beneficiary.  Joan and Bill had a checking and savings account, of which they were joint owners.  Joan had a 2010 Honda Accord (worth $12,000.00) that she owned solely.  Their home was owned as tenants by the entirety.

When Joan died, Bill was left wondering what would need to be done from a probate standpoint to transfer Joan’s assets to him.  Fortunately for Bill, out of all the things listed above, he only needs to worry about the 2010 Accord.  The IRA has Bill listed as beneficiary, meaning he need only file a death claim with the company managing the IRA.  The jointly-owned checking and savings accounts can be closed by Bill and reopened in his name alone without any legal authority.  Joan’s interest in the home automatically transferred to Bill upon Joan’s death because they owned it as tenants by the entirety.  The only thing that Bill can’t transfer without legal authority is the car.

Bill would simply fill out the Year’s Allowance form, sign it and have his signature notarized, and take it, along with Joan’s death certificate and her original will (if she had one) to the Clerk of Court.  (There is a fee associated with the Year’s Allowance — currently it is $8.00 — so Bill needs cash as well).  Once there, the Clerk will review the documentation, and assuming everything is complete, he or she will sign it, place a raised seal on it, and hand it back to Bill.

From there, Bill would take the certified Year’s Allowance, along with the title to the Accord, to the DMV, present both, and ask that title be transferred to him.

What this means is that Bill has completed the administration of his Wife’s estate with one form.

Behold, the magic of the Year’s Allowance!

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A frequent flyer in estates: the spousal year’s allowance.

If I had to guess, I would say the most common filing in a decedent’s estate is the year’s allowance.  Last year in NC, there were 18,000 filings for a year’s allowance.   There are two types of year’s allowance: one for children of the decedent and one for the spouse of the decedent.  This post focuses on some basics of the spousal year’s allowance.

What is the spousal year’s allowance?

The spousal year’s allowance is intended to provide a means of support for the surviving spouse of a decedent upon the decedent’s death and during the administration of the decedent spouse’s estate.   It first appeared in NC statutory law in 1796.  See 1796 N.C. Session Laws, ch. 469.  Prior to the enactment in 1796, the estate administrator could sell “the whole crop and provisions” of the deceased, and thereby deprive the widow of the means of subsistence for herself and her family.  Pritchard v. First-Citizens Bank and Trust Co., 38 N.C. App. 489, 492 (1978).

The 1796 law creating the year’s allowance in NC authorized the widow to use property of the decedent’s estate (“crop, stock, and provisions then on hand”) that was absolutely necessary for the support of herself and her family before the appointment of the administrator.  Id. The widow could then petition the court to appoint persons who would allot portions of the crop, stock, and provisions to support her and her family for one year.  Id. The amount of the allotment was determined based on the necessities of the widow and her children.   Id.  The purpose was “to make provision for the pressing wants of the widow, personally, and to enable her at a mournful juncture, to keep her family about her for a short season.” Kimball v. Deming, 27 N.C. 418, 419 (1845).  It was not intended to provide the widow with an additional interest in the decedent’s estate.  Id. 

Today, the spousal allowance is available for both widows and widowers but it retains the purpose of providing for the surviving spouse subsequent to the death of the decedent spouse.  See Bryant v. Bowers, 182 N.C. App. 338, 340 (2007) (“A year’s allowance is allotted to a surviving spouse to meet immediate needs, maintain a standard of living, ease the mourning process, and keep the family intact.”).

What is the amount of the spousal year’s allowance?

NC has a two-tiered system applicable to the spousal allowance.  The spouse has a right to a statutory minimum allowance that is available to provide for the necessities of the spouse.  Pritchard , 38 N.C. App. at 493.  Effective January 1, 2019, this amount was increased from $30,000 to $60,000.  See S.L. 2018-40 .   One likely outcome of this change will be to reduce the need for full administration of estates and increase the prevalence of estates where the only thing filed is a year’s allowance and small estates such as affidavit by collection under G.S. Chapter 28A, Article 25 .

The spouse may apply to the clerk for an assignment of an allowance greater than $60,000.  Id.   The clerk may then assign a “value sufficient for the support of the spouse” based on the estate and condition of the decedent. G.S. 30-31 .  The purpose is to provide spouse of a solvent decedent with the same level of support during the first year after the decedent’s death that the spouse had been accustomed to receiving from the deceased spouse.  Pritchard , 38 N.C. App. at 493.  The maximum amount assigned by the clerk is one half of the average annual net income of the decedent for the three years immediately preceding the decedent’s death.  Id.    “Net income” means take home pay or after tax income.  Pritchard , 38 N.C. App. at 493.

How does the spouse apply for the year’s allowance?

It is the duty of the personal representative of the estate to assign the allowance if the spouse applies for the allowance within one year of the death of the deceased spouse.  G.S. 30-16 .  If the PR fails to assign the allowance or if there is no PR because a full estate is not opened, the spouse may apply to a magistrate or the clerk. Id.   In practice, most spouses (and attorneys) go directly to the clerk for the assignment of the allowance, skipping the PR.  NC Administrative Office of the Courts Form E-100 is available to apply with the clerk.  The cost is currently $8 to apply. Section 12(a) of recently filed House Bill 226 seeks to raise that amount to $20.

The PR, the surviving spouse, a child through a guardian, or any creditor, devisee, or heir of the decedent may appeal from the clerk’s assignment of the year’s allowance by filing a copy of the assignment and a notice of appeal within 10 days after the assignment.  G.S. 30-23 .  Interestingly, the assignment is appealed de novo to superior court as a special proceeding, rather than an estate proceeding.  Id.

To apply for an amount greater than the statutory minimum of $60,000, the spouse files a petition initiating a special proceeding before the clerk.  G.S. 30-27 ; 30-28 .  The petition must set forth facts entitling the spouse to the year’s support, the value claimed, facts showing the decedent died with an estate greater than $60,000,* and whether or not an allowance has already been made to the petitioner.   Id.

What property is available to satisfy the allowance?

The spousal allowance is only payable from personal property, not real property or proceeds from the sale of real property. G.S. 30-18 ; Denton v. Tyson, 118 N.C. 542 (1896).  Frequently, the year’s allowance is used to assign money in bank accounts and cars to the surviving spouse.

The allowance has priority over claims against the estate, meaning it may be paid before any claims of the estate are paid. However, the property assigned is not free from a security interest in the property.  For example, if the decedent dies with a car worth $10,000 that is subject to a lien in the amount of $5,000, only $5,000 from the value of the car is available to assign to the year’s allowance.

What if there is not enough personal property in the estate to satisfy the allowance?

If the decedent spouse dies and does not own enough personal property to satisfy the minimum year’s allowance of $60,000, then the clerk will prepare and clock a deficiency judgment reflecting the amount of the deficiency. G.S. 30-20. Typically the clerk uses NC AOC E-101 to record the deficiency.  The clerk does not index the deficiency judgment in the judgment abstracting system; instead the judgment is placed in the decedent’s estate “E” file. If assets later come into the PR’s hand, the deficiency is paid to the spouse.

Another likely change to come from the increase in the spousal year’s allowance amount to $60,000, is the increase in deficiency judgments against the PR for the balance owed.  The deficiency has no expiration date; it is cancelled by the clerk when it is paid in full.  It is not clear whether the deficiency survives the death of the surviving spouse and is payable to the surviving spouse’s estate.

It is also important to note the spousal year’s allowance is not superior to the child’s year’s allowance.  If there is a child entitled to an allowance under G.S. 30-17 and there is not enough personal property to satisfy both the spousal allowance and the child’s allowance, then the amount assigned will be prorated to pay an equal portion of both allowances.

How does it impact the estate?

The allowance is available in both testate (decedent died with a will) and intestate (decedent died without a will) estates.   The amount of the spousal allowance is applied against the amount the surviving spouse takes under a will.  G.S. 30-15 .  It is not credited against the share the surviving spouse takes in an intestate estate.

Is a spouse always entitled to an allowance?

A spouse of a decedent is not always entitled to the allowance.  The spouse is not entitled to an allowance if:

• The spouse committed an act barring property rights set forth in G.S. 31A-1, such as voluntarily separating from the decedent spouse and living in adultery that has not been condoned or willfully abandoning the spouse. S. 31A-1(b).
• The spouse took the life of the decedent and is determined to be a “slayer” under G.S. 31A-3. See S. 31A-4 .
• The spouse waived the right to a year’s allowance in a premarital agreement. See In re Estate of Cline, 103 N.C. App. 83 (1991).
• The spouse renounces or waives the right to a year’s allowance. See NC AOC Form E-213 ; G.S. 31B-1.

Who is a spouse?

It would seem the issue of who is a “spouse” of the decedent entitled to an allowance is pretty straightforward, but the facts involved in two recent NC Court of Appeals opinions indicated otherwise.  A 2016 case from the NC Court of Appeals, In re Estate of Peacock , 788 S.E.2d 191 (2016) , dealt specifically with whether someone was a spouse of the decedent and thus entitled to a year’s allowance.  The case involved Richard and Bernadine, who were married and then divorced.  They reconciled in the last years before Richard’s death.  The day before Richard’s death, while he was in the hospital, a reverend performed a marriage ceremony between Richard and Bernadine.   Richard died intestate and his daughter applied for letters of administration and did not identify Bernadine as an heir.

A proceeding was filed before the clerk to determine whether the marriage in the hospital was valid and thus entitled Bernadine to inherit and otherwise share in the estate.  The clerk entered an order that Bernadine was not an heir because the hospital ceremony was conducted without a marriage license and therefore did not result in a valid marriage.  The petitioner appealed to superior court who affirmed the order of the clerk.

On appeal, the NC Court of Appeals reversed and held that, while it is a Class 1 misdemeanor for a minister or other authorized person to conduct a marriage ceremony without first receiving a license, the absence of a valid marriage license does not invalidate a marriage performed in accordance with the requirements of G.S. 51-1.  As a result, Bernadine was entitled to all rights of a spouse of an intestate decedent, including the right to a spousal year’s allowance in addition to her intestate share of Richard’s estate.

The second case I’ll leave to your weekend reading because this post is already too long.  The facts dealt with a son of the decedent from a previous marriage who sought to set aside a year’s allowance assigned to a surviving spouse, Carol.  The son claimed the marriage between Carol and the decedent was void because the decedent had a living wife, his mother, when he married Carol.  Spoiler alert: the marriage was deemed void ab initio and the assignment was set aside. It is an unpublished decision, In re Estate of Meetze , 802 S.E.2d 916 (2017), available here .

* House Bill 226 filed February 28, 2019 contains a technical correction related to the spousal year’s allowance.  Section 4 of the bill revises G.S. 30-29 reflect the current year’s allowance of $60,000.   The statute currently refers to the prior amount of $30,000.

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Spousal Year’s Allowance

by Durham Law Firm | Probate

Losing a spouse is one of the hardest losses a person can go through. On top of the grief, the surviving spouse also may have to deal with the probate process and all the headaches that can come from that.

They are hearing all sorts of new phrases and balancing that with trying to figure out their next steps. One of those phrases they may hear could be the year’s allowance or the spousal year’s allowance.

This is definitely something that is important for surviving spouses to know about as it impacts them directly and, depending on the size of the estate, could be the main thing they have to worry about.

What is the spousal year’s allowance?

There are two types of year’s allowance that the executor of an estate may hear about: one for children of the decedent and one for the surviving spouse. A spousal year’s allowance is intended to provide a means of support for the surviving spouse throughout the administration of the estate.

When it was originally written into law, it was to help widows and children of the decedent in their time of need and to prevent the time it takes to administer the estate of a deceased person from impoverishing the family in the meantime.

Today, the allowance applies to both men and women but still exists to help them during an already difficult time. It is available in both testate and intestate estates, meaning surviving spouses are entitled to it whether or not the decedent had a will.

If the decedent had a will, the spousal allowance is applied against the amount the surviving spouse takes under that will. It is not credited against the share the surviving spouse takes if there is not a will.

How much is it?

There are two different ways to figure out the spousal allowance. The minimum amount according to North Carolina statutes is $60,000. The spouse may also apply for an allowance of greater than $60,000 depending on the income of the deceased person.

The maximum amount is one half of the average annual net income of the decedent for the three years immediately preceding the decedent’s death. This net income means take home pay after taxes. These amounts are to provide the surviving spouse the same level of support they may have been accustomed to prior to losing their loved one.

What can be used to pay?

The spousal allowance is paid using personal property, including but not limited to money in accounts and from any vehicles the decedent owned. Real property, meaning land and buildings, cannot be used to satisfy the spousal allowance. The spousal allowance also takes priority over claims against the estate. This means that the spousal allowance gets paid before any other claims.

However, if there is a secured interest in the personal property, such as a lien against it, that amount is subtracted from what can be used to pay the spousal allowance. For example, if the person dies with a car worth $10,000 and the car has a lien of $4,000 on it, only $6,000 can go towards the spousal allowance.

What if there is not enough personal property?

If there is not enough personal property to cover the $60,000 for a spousal allowance, the clerk will file a deficiency judgement in the estate. If additional assets later get put into the estate, those can be used to pay towards the deficiency.

The deficiency has no expiration date; however, it is important to note that if there is a child’s year’s allowance, the amount assigned will be prorated to pay an equal portion of both allowances.

How does a surviving spouse apply for the year’s allowance?

Generally, it is the duty of the personal representative of the estate, also often called an executor or administrator, to assign the allowance if the spouse applies for it within one year of the decedent’s death.

However, if there is no personal representative or if the personal representative fails to assign the allowance to the surviving spouse, the spouse or their attorney can go directly to the clerk to apply for the spousal allowance using form E-100 and including the filing fee for that document.

If the surviving spouse wishes to apply for more than the $60,000 minimum, they will need to file a petition and have a special proceeding before the clerk. This filing must show that the spouse is entitled to the greater amount by showing that the estate is worth more than $60,000 and whether an allowance has already been made to the spouse or not.

What would keep the surviving spouse from getting their yearly allowance?

There are a few times that a spouse legally would not be entitled to the spousal allowance. Those situations include:

• If the decedent and surviving spouse were separated at the time of death, if the surviving spouse was living in adultery at the time of the death, or if the surviving spouse is considered to have willfully abandoned their spouse • If the surviving spouse is determined to be a “slayer” under North Carolina law, meaning that they are found guilty or plead guilty to killing the decedent • If the surviving spouse waived the right to a year’s allowance in a premarital agreement • If the surviving spouse renounces or waives the right to a year’s allowance

There may also be times that other heirs challenge whether someone is really a spouse or not. For example, if there is not a valid marriage license or if the decedent was already married when they got remarried.

While these cases are not common, they have happened and have led to challenges against the estate and the spousal allowance for some individuals. You can prevent many of these types of situations by having a proper estate plan in place, especially if you and your significant other are not legally married.

It is also possible for the personal representative, surviving spouse, a child/the child’s guardian, or a creditor, or other heir to appeal the assignment of the spousal allowance if they file a notice of appeal within 10 days after the assignment. If they do appeal, there will be a hearing in superior court.

The spousal year’s allowance is designed to make sure they are able to do just that while navigating the estate administration process and waiting for any inheritance. With some small estates, this may be the only thing the surviving spouse has to do.

If you’re not sure how to apply for the spousal year’s allowance or if you’re eligible for it, the probate attorneys at Hopler, Wilms, & Hanna are happy to walk you through the process and answer any questions you have about the spouse’s year’s allowance, or any other probate questions you may have. Please reach out to schedule a consultation with one of our knowledgeable and experienced attorneys!

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2005 North Carolina Code - General Statutes Article 4 - Year\'s Allowance.

Year's Allowance.

Part 1.� Nature of Allowance.

§ 30‑15.� When spouse entitled to allowance.

Every surviving spouse of an intestate or of a testator, whether or not he has petitioned for an elective share, shall, unless he has forfeited his right thereto, as provided by law, be entitled, out of the personal property of the deceased spouse, to an allowance of the value of ten thousand dollars ($10,000) for his support for one year after the death of the deceased spouse. Such allowance shall be exempt from any lien, by judgment or execution, acquired against the property of the deceased spouse, and shall, in cases of testacy, be charged against the share of the surviving spouse. (1868‑9, c. 93, s. 81; 1871‑2, c. 193, s. 44; 1880, c. 42; Code, s. 2116; 1889, c. 499, s. 2; Rev., s. 3091; C.S., s. 4108; 1953, c. 913, s. 1; 1961, c. 316, s. 1; c. 749, s. 1; 1969, c. 14; 1981, c. 413, s. 1; 1995, c. 262, s. 4; 2000‑178, s. 4.)

§ 30‑16.� Duty of personal representative, magistrate, or clerk to assign allowance.

It shall be the duty of every administrator, collector, or executor of a will, on application in writing, signed by the surviving spouse, at any time within one year after the death of the deceased spouse, to assign to the surviving spouse the year's allowance as provided in this Article.

If there shall be no administration, or if the personal representative shall fail or refuse to apply to a magistrate or clerk of court, as provided in G.S. 30‑20, for 10 days after the surviving spouse has filed the aforesaid application, or if the surviving spouse is the personal representative, the surviving spouse may make application to the magistrate or clerk, and it shall be the duty of the magistrate or clerk to proceed in the same manner as though the application had been made by the personal representative.

Where any personal property of the deceased spouse shall be located outside the township or county where the deceased spouse resided at the time of his death, the personal representative or the surviving spouse may apply to any magistrate or to any clerk of court of any township or county where such personal property is located, and it shall be the duty of such magistrate or clerk to assign the year's allowance as if the deceased spouse had resided and died in that township. (1868‑9, c. 93, s. 12; 1870‑1, c. 263; Code, ss. 2120, 2122; 1889, cc. 496, 531; 1891, c. 13; Rev., ss. 3096, 3098; C.S., ss. 4113, 4115; 1961, c. 749, s. 2; 1971, c. 528, s. 21; 1997‑310, s. 1.)

§ 30‑17.� When children entitled to an allowance.

Whenever any parent dies survived by any child under the age of 18 years, including an adopted child or a child with whom the widow may be pregnant at the death of her husband, or a child who is less than 22 years of age and is a full‑time student in any educational institution, or a child under 21 years of age who has been declared mentally incompetent, or a child under 21 years of age who is totally disabled, or any other person under the age of 18 years residing with the deceased parent at the time of death to whom the deceased parent or the surviving parent stood in loco parentis, every such child shall be entitled to receive an allowance of two thousand dollars ($2,000) for the child's support for the year next ensuing the death of such parent. Such allowance shall be in addition to the child's share of the deceased parent's estate and shall be exempt from any lien by judgment or execution against the property of such parent. The personal representative of the deceased parent shall, within one year after the parent's death, assign to every such child the allowance herein provided for; but if there is no personal representative or if he fails or refuses to act within 10 days after written request by a guardian or next friend on behalf of such child, the allowance may be assigned by a magistrate or clerk of court upon application of said guardian or next friend.

If the child resides with the widow of the deceased parent at the time such allowance is paid, the allowance shall be paid to said widow for the benefit of said child. If the child resides with its surviving parent who is other than the widow of the deceased parent, such allowance shall be paid to said surviving parent for the use and benefit of such child, regardless of whether the deceased died testate or intestate or whether the widow dissented from the will. Provided, however, the allowance shall not be available to an illegitimate child of a deceased father, unless such deceased father shall have recognized the paternity of such illegitimate child by deed, will or other paper‑writing. If the child does not reside with a parent when the allowance is paid, the allowance shall be paid to the child's general guardian, if any, and if none, to the clerk of the superior court who shall receive and disburse same for the benefit of such child. (1889, c. 496; Rev., s. 3094; C.S., s. 4111; 1939, c. 396; 1953, c. 913, s. 2; 1961, c. 316, s. 2; c. 749, s. 3; 1969, c. 269; 1971, c. 528, s. 22; 1973, c. 1411; 1975, c. 259; 1981, c. 413, s. 2; c. 599, s. 7; 1995, c. 262, s. 5; 1997‑310, s. 2; 2005‑225, s. 1.)

§ 30‑18.� From what property allowance assigned.

Such allowance shall be made in money or other personal property of the estate of the deceased spouse. (1868‑9, c. 93, s. 9; Code, s. 2117; Rev., s. 3095; C.S., s. 4112; 1925, c. 92; 1961, c. 749, s. 4.)

Part 2.� Assigned by Magistrate or Clerk.

§ 30‑19.� Value of property ascertained.

The value of the personal property assigned to the surviving spouse and children shall be ascertained by a magistrate or the clerk of court of the county in which administration was granted or the will probated. (1868‑9, c. 93, s. 13; Code, s. 2121; Rev., s. 3097; C.S., s. 4114; 1961, c. 749, s. 5; 1971, c. 528, s. 22; 1989, c. 11, s. 1; 1997‑310, s. 3.)

§ 30‑20.� Procedure for assignment.

Upon the application of the surviving spouse, a child by his guardian or next friend, or the personal representative of the deceased, the clerk of superior court of the county in which the deceased resided may assign the inquiry to a magistrate of the county. The clerk of court, or magistrate upon assignment, shall ascertain the person or persons entitled to an allowance according to the provisions of this Article, and determine the money or other personal property of the estate, and pay over to or assign to the surviving spouse and to the children, if any, so much thereof as they shall be entitled to as provided in this Article. Any deficiencies shall be made up from any of the personal property of the deceased, and if the personal property of the estate shall be insufficient to satisfy such allowance, the clerk of the superior court shall enter judgment against the personal representative for the amount of such deficiency, to be paid when a sufficiency of such assets shall come into his hands. (1870‑1, c. 263; Code, s. 2122; 1891, c. 13; 1899, c. 531; Rev., s. 3098; C.S., s. 4115; 1961, c. 749, s. 6; 1971, c. 528, s. 23; 1989, c. 11, s. 2; 1997‑310, s. 3.)

§ 30‑21.� Report of clerk or magistrate.

The clerk of court, or magistrate upon assignment, shall make and sign three lists of the money or other personal property assigned to each person, stating their quantity and value, and the deficiency to be paid by the personal representative. Where the allowance is to the surviving spouse, one of these lists shall be delivered to him. Where the allowance is to a child, one of these lists shall be delivered to the surviving parent with whom the child is living; or to the child's guardian or next friend if the child is not living with said surviving parent; or to the child if said child is not living with the surviving parent and has no guardian or next friend. One list shall be delivered to the personal representative. One list shall be returned by the magistrate or clerk, within 20 days after the assignment, to the superior court of the county in which administration was granted or the will probated, and the clerk shall file and record the same, together with any judgment entered pursuant to G.S. 30‑20. (1868‑9, c. 93, s. 15; Code, s. 2123; Rev., s. 3099; C.S., s. 4116; 1961, c. 749, s. 7; 1971, c. 528, s. 24; 1989, c. 11, s. 3; 1997‑310, s. 3.)

§ 30‑22.� Repealed by Session Laws 1971, c. 528, s. 25.

§ 30‑23.� Right of appeal.

The personal representative, or the surviving spouse, or child by his guardian or next friend, or any creditor, legatee or heir of the deceased, may appeal from the finding of the magistrate or clerk of court to the superior court of the county, and, within 10 days after the assignment, cite the adverse party to appear before such court on a certain day, not less than five nor exceeding 10 days after the service of the citation. (1868‑9, c. 93, s. 16; Code, s. 2124; 1897, c. 442; Rev., s. 3100; C.S., s. 4117; 1961, c. 749, s. 9; 1989, c. 11, s. 4; 1997‑310, s. 3.)

§ 30‑24.� Hearing on appeal.

At or before the day named, the appellant shall file with the clerk a copy of the assignment and a statement of his exceptions thereto, and the issues thereby raised shall be decided de novo. (1868‑9, c. 93, s. 17; Code, s. 2125; Rev., s. 3101; C.S., s. 4118; 1989, c. 11, s. 5; 1997‑310, s. 3.)

§ 30‑25.� Personal representative entitled to credit.

Upon the settlement of the accounts of the personal representative, he shall be credited with the articles assigned, and the value of the deficiency assessed as aforesaid, if the same shall have been paid, unless the allowance be impeached for fraud or gross negligence in him. (1868‑9, c. 93, s. 18; Code, s. 2126; Rev., s. 3102; C.S., s. 4119; 1997, c. 310, s. 3.)

§ 30‑26.� When above allowance is in full.

If the estate of a deceased be insolvent, or if his personal estate does not exceed ten thousand dollars ($10,000), the allowances for the year's support of the surviving spouse and the children shall not, in any case, exceed the value prescribed in G.S. 30‑15 and G.S. 30‑17; and the allowances made to them as above prescribed shall preclude them from any further allowances. (1868‑9, c. 93, s. 19; Code, s. 2127; Rev., s. 3103; C.S., s. 4120; 1961, c. 749, s. 10; 1981, c. 413, s. 3; 1995, c. 262, s. 6; 1995 (Reg. Sess., 1996), c. 742, s. 17; 1997‑310, s. 3.)

Part 3.� Assigned in Superior Court.

§ 30‑27.� Surviving spouse or child may apply to superior court.

It shall not, however, be obligatory on a surviving spouse or child to have the support assigned as above prescribed. Without application to the personal representative, the surviving spouse, or the child through his guardian or next friend, may at any time within� one year after the decedent's death, apply to the superior court of the county in which administration was granted or the will probated to have a year's support assigned. (1868‑9, c. 93, s. 20; Code, s. 2128;� Rev., s. 3104; C.S., s. 4121; 1961, c. 749, s. 11.)

§ 30‑28.� Nature of proceeding; parties.

The application shall be by summons, as is prescribed for special proceedings, in which the personal representative of the deceased, if there be one other than the plaintiff, the largest known creditor, or legatee, or some distributee of the deceased, living in the county, shall be made defendant, and the proceedings shall be as prescribed for special proceedings between parties. (1868‑9, c. 93, s. 21; Code, s. 2129; Rev., s. 3105; C.S., s. 4122.)

§ 30‑29.� What complaint must show.

In the complaint the plaintiff shall set forth, besides the facts entitling plaintiff to a year's support and the value of the support claimed, the further facts that the estate of the decedent is not insolvent, and that the personal estate of which he died possessed exceeded ten thousand dollars ($10,000), and also whether or not an allowance has been made to plaintiff and the nature and value thereof. (1868‑9, c. 93, s. 22; Code, s. 2130; Rev., s. 3106; C.S., s. 4123; 1961, c. 749, s. 12; 1981, c. 413, s. 4; 1995, c. 262, s. 7.)

§ 30‑30.� Judgment and order for commissioners.

If the material allegations of the complaint be found true, the judgment shall be that plaintiff is entitled to the relief sought; and the court shall thereupon issue an order to the sheriff or other proper officer of the county, commanding him to summon a magistrate and two persons qualified to act as jurors, who shall determine the money or other personal property of the estate and assign to the plaintiff a sufficiency thereof for plaintiff's support for one year from the decedent's death. Any deficiency shall be made up from any of the personal property of the deceased, and if the personal property of the estate shall be insufficient for such support, the clerk of the superior court shall enter judgment against the personal representative for the amount of such deficiency, to be paid when a sufficiency of such assets shall come into his hands. (1868‑9, c. 93,� s. 23; Code, s. 2131; Rev., s. 3107; C.S., s. 4124; 1961, c. 749, s. 13; 1971, c. 528, s. 26.)

§ 30‑31.� Duty of commissioners; amount of allowance.

The said commissioners shall be sworn by the magistrate and shall proceed as prescribed in this Chapter, except that they may assign to the plaintiff a value sufficient for the support of plaintiff according to the estate and condition of the decedent and without regard to the limitations set forth in this Chapter; but the value allowed shall be fixed with due consideration for other persons� entitled to allowances for year's support from the decedent's estate;� and the total value of all allowances shall not in any case exceed the one half of the average annual net income of the deceased for three years next preceding his death. This report shall be returned by the magistrate to the court. (1868‑9, c. 93, s. 24; Code, s. 2132; Rev., s. 3108; C.S., s. 4125; 1971, c. 528, s. 27.)

§ 30‑32.� Exceptions to the report.

The personal representative, or any creditor, distributee or legatee of the deceased, within 10 days after the return of the report, may file exceptions thereto. The plaintiff shall be notified thereof and cited to appear before the court on a certain day, within 20 and not less than 10 days after service of the notice, and answer the same; the case shall thereafter be proceeded in, heard and decided as provided in special proceedings between parties. (1868‑9, c. 93, s. 25; Code, s. 2133; Rev., s. 3109; C.S., s. 4126; 1947, c. 484, s. 1.)

§ 30‑33.� Confirmation of report; execution.

If the report shall be confirmed, the court shall so declare, and execution shall issue to enforce the judgment as in like cases. (1868‑9, c. 93, s. 26; Code, s. 2134; Rev., s. 3110; C.S., s. 4127.)

Disclaimer: These codes may not be the most recent version. North Carolina may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

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How The “Year’s Allowance” Helps After A Spouse’s Death

The death of a spouse can be devastating for many people. The emotional and financial struggles that come with the loss are very difficult to handle, especially in the early days after their passing. However, one thing you should not neglect is your finances.

If your spouse was responsible for handling all of the family’s finances before they passed away, it may be hard to manage everything on your own. This blog post will go over the benefits of the “year’s allowance” after a spouse’s death so you can make sure to take care of yourself and your children financially while going through a difficult time.

The Year’s Allowance In North Carolina

The spousal allowance (or “year’s allowance”) is an allowance that one receives from the deceased spouse’s estate after the death of the spouse. It is typically given in the form of a lump sum or the assignment of certain assets, such as vehicles titled in the name of the deceased spouse.

This type of assistance can help widowed spouses with the financial burdens they may be facing, such as bills and mortgage payments. Widows can invest their spousal allowance in any way they want, depending on what is going to be most beneficial for them financially.

In 2021, the spousal allowance in North Carolina provides for up to $60,000 from the estate to help in the transition, whether they died with or without a will (intestate).

Do Children Get Anything For A Year’s Allowance?

The dependent allowance is a form of financial support given to children after the death of their father or mother. The allowance can be in the form of money, assets, property, and so on.

The purpose for this type of financial support is twofold: to replace parental income and to provide quick access to funds. In 2021, the dependent allowance in North Carolina allows for quick access of up to $5,000 per dependent.

Children qualify for a dependent allowance if they are:

• Under the age of 18 years old, OR
• Under the age of 22 years old and attending a higher education institution, OR
• Under the age of 21 years old and declared mentally incompetent or totally disabled

A child can be excluded from eligibility, however, if the child is born out of wedlock, except in very specific instances provided in the law.

How Long Does A Surviving Spouse Have to Claim the Spousal Allowance?

A surviving spouse has 12 months from the time of their spouse’s death to claim this benefit.

As long as the surviving spouse applies for the spousal and/or dependent allowance within one year of the deceased spouse’s death, the executor of the estate is responsible for providing access to the assets or funds. If the executor fails to act within 10 days of the request, however, the surviving spouse (or their attorney) can apply directly to the clerk of court using this form:

Application And Assignment Year’s Allowance | North Carolina Judicial Branch

Can A Spouse Lose Their Qualification For The Spousal Allowance?

Yes, but such instances are considerably limited. If the surviving spouse does not want or require the allowance, they may waive their rights to it by making a decision after their spouse’s death.  The right may have been waived in a prenuptial or postnuptial agreement.  Or, the surviving spouse may be disqualified to claim an allowance in one of the following ways:

• They pleaded or were found guilty of killing the deceased spouse and were deemed a “slayer” under North Carolina’s slayer laws.
• If the deceased spouse and the surviving spouse were legally separated at the time of the deceased spouse’s death.
• If the surviving spouse was living in adultery at the time of the deceased spouse’s death.
• If the surviving spouse is deemed to have “willfully abandoned” the deceased spouse prior to the deceased spouse’s death.
• If the marriage between the deceased spouse and the surviving spouse is determined to be invalid.

Contact Our Estate Planning Professionals Today

The spousal allowance can be a lifesaver after the death of a spouse. You need money to help in the first year after your partner’s death, and this is one way you can get it quickly.

David Anderson and his team know how to work with probate proceedings so that you’re able to receive the funds from your deceased spouse’s estate without any delays or issues. Contact us today for a consultation on how we can help ensure you are protected after the death of a spouse.

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Application And Assignment Year's Allowance

Everything you need to know about North Carolina Form AOC-E-100, including helpful tips, fast facts & deadlines, how to fill it out, where to submit it and other related NC probate forms.

About Application And Assignment Year's Allowance

There are all sorts of forms executors, beneficiaries, and probate court clerks have to fill out and correspond with during probate and estate settlement, including affidavits, letters, petitions, summons, orders, and notices.

Application And Assignment Year's Allowance is a commonly used form within North Carolina. Here’s an overview of what the form is and means, including a breakdown of the situations when (or why) you may need to use it:

Atticus Fast Facts About Application And Assignment Year's Allowance

Sometimes it’s tough to find a quick summary— here’s the important details you should know about Application And Assignment Year's Allowance:

This form pertains to the State of North Carolina

The current version of this form was last revised on September 3, 2021

The relevant probate statute or North Carolina laws related to this form include: 30-15, 30-16, 30-17, 30-21

Government forms are not typically updated often, though when they are, it often happens rather quietly. While Atticus works hard to keep this information about North Carolina’s Form AOC-E-100 - Application And Assignment Year's Allowance up to date, certain details can change from time-to-time with little or no communication.

How to file Form AOC-E-100

Step 1 - download the correct north carolina form based on the name and id if applicable.

Double check that you have both the correct form name and the correct form ID. Some North Carolina probate forms can look remarkably similar, so it’s best to double, even triple-check that you’re using the right one! Keep in mind that not all States have a standardized Form ID system for their probate forms.

Step 2 - Complete the Document

Fill out all relevant fields in Form AOC-E-100, take a break, and then review. Probate and estate settlement processes in NC are long enough to begin with, and making a silly error can push your timeline even farther back. No thank you!

Note: If you don’t currently know all of the answers and are accessing Form AOC-E-100 online, be sure to avoid closing the browser tab and potentially losing all your progress (or use a platform like Atticus to help avoid making mistakes).

Step 3 - Have Form AOC-E-100 witnessed or notarized (if required)

Some States and situations require particular forms to be notarized. If you have been instructed to get the document notarized or see it in writing on the document, then make sure to hire a local notary. There are max notary fees in the United States that are defined and set by local law. Take a look at our full guide to notary fees to make sure you aren’t overpaying or getting ripped off.

Step 4 - Submit Application And Assignment Year's Allowance to the relevant office

This is most often the local probate court where the decedent (person who passed away) is domiciled (permanently resides) or the institution involved with this particular form (e.g. a bank). Some offices allow you to submit forms online, other’s don’t, and we while we generally recommend going in-person to expedite the process, sometimes that simply isn’t an option. It’s also a generally good idea to establish a positive working relationship with any probate clerk (unfortunately there’s enough people & process out there making things more difficult and unnecessarily confusing for them), so a best practice is to simply ask the probate clerk proactively exactly how and where they’d prefer you to submit all forms. Need help getting in touch with a local probate court or identifying a domicile probate jurisdiction? 👉 Find and Contact your Local Probate Court 👉 What is a Domicile Jurisdiction?

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When Application And Assignment Year's Allowance is due

Different probate forms or processes can require different deadlines or response times for completing the appropriate form.

While some steps in the process are bound to specific deadlines (like petitioning for probate, having to submit an inventory of assets , or filing applicable notices to creditors and beneficiaries), many probate forms or processes are not tied to a specific deadline since the scope of work can vary based on situational factors or requirements involved.

Either way, there are a bunch of practical reasons why personal representatives should work to complete each step as thoroughly and quickly as possible when completing probate in North Carolina.

5 reasons you should submit AOC-E-100 as quickly as possible:

The sooner you begin, the faster North Carolina can allow heirs and beneficiaries to get their share of assets subject to probate. Acting promptly can also decrease the costs & overall mental fatigue through an otherwise burdensome process. Helpful Context: What’s the Difference Between Probate and Non-Probate Assets?

In general, creditors of an estate usually have around 3-6 months from the time you file notice to creditors to file any claims for debt against the deceased’s assets. If they don’t, then that debt is forfeited (and more importantly, the executor won’t be held personally responsible). So doing this sooner means you have a better idea of who is owed what and ensures you won’t get a surprise collector months later.

Not filing a will within 30 days (on average) could mean that the probate process proceeds according to intestate laws (laws that govern what happens to someone's stuff without a will) or is subject to unnecessary supervision by the probate court. And if you aren't directly related to the deceased (a.k.a. next of kin ), this could also mean you lose your inheritance.

It’s important to file any necessary state tax returns on behalf of the deceased or estate by the following tax season in North Carolina. If you don’t, you could owe penalties and interest. This also includes any necessary federal tax returns such as Forms 1040, 1041, or even a Form 706 estate tax return.

If a house in the State of North Carolina is left empty (or abandoned) for a while, insurance can get dicey. For example, if the house burns down and no one has been there for a year, an insurance company may get out of paying your claim.

If you’re not using Atticus to get specific forms, deadlines, and timelines for North Carolina probate, then try and stay as organized as possible, pay close attention to the dates mentioned in any correspondence you have with the State’s government officials, call the local North Carolina probate clerk or court for exact answers regarding Form AOC-E-100, and when in doubt— consult a qualified trust & estates lawyer for that area.

How to Download, Open, and Edit Form AOC-E-100 Online

Application And Assignment Year's Allowance is one of the many probate court forms available for download through Atticus.

It may also be available through some North Carolina probate court sites, such as . In order to access the latest version, be updated with any revisions, and get full instructions on how to complete each form, check out the Atticus Probate & Estate Settlement software or consider hiring a qualified legal expert locally within North Carolina.

While Atticus automatically provides the latest forms, be sure to choose the correct version of Form AOC-E-100 - Application And Assignment Year's Allowance f using any other site or resource in order to avoid having to re-complete the form process and/or make another trip to the North Carolina probate court office.

Application And Assignment Year's Allowance is a .pdf, so opening it should be as simple as clicking “View Form” from within the Atticus app or by clicking the appropriate link found on any North Carolina-provided government platform. Once you’ve opened the form, you should be able to directly edit the form before saving or printing.

Did you know?

Form AOC-E-100 - Application And Assignment Year's Allowance is a probate form in North Carolina.

North Carolina has multiple types of probate and the necessary forms depend on the unique aspects of each estate, such as type and value of assets, whether there was a valid will, who is serving as the personal representative or executor, and even whether or not they also live in North Carolina.

During probate, all personal representatives and executives in are required to submit a detailed inventory of assets that must separate non-probate assets from probate assets.

Probate in North Carolina, especially without guidance, can take years to finish and cost upwards of $14,000.

Frequently Asked Questions about Application And Assignment Year's Allowance

What is probate, exactly?

Probate is the government’s way of making sure that when a person dies, the right stuff goes to the right people (including the taxes the government wants). All of that stuff is collectively known as someone’s “estate”, and it’s the job of the executor or personal representative to fill out all the forms and complete all the required steps to formally dissolve the estate.  To get instant clarity on the entire probate process and get an idea of the steps, timeline, and best practices, read the Atticus Beginner’s Guide to Probate . 

Where can I get help with Probate?

The best place? Create an account in Atticus to start getting estate-specific advice.  You may need a lawyer, you may not, and paying for one when you didn’t need it really hurts. Atticus makes sure you make  the best decisions (plus you can write it off as an executor expense). We’ve also created a list of other probate services . Be sure to check it out!

What does a NC executor or personal representative have to do?

An executor is named in someone’s will, and if the deceased didn’t have a will, then the spouse or other close family relative usually steps up to fulfill the role. If no one wants to do it, then a judge will appoint someone.  The executor is responsible for the complete management of the probate process, including major responsibilities such as:

Creating an inventory of all probate assets .

Filling out all necessary forms

Paying off all estate debts and taxes

Submitting reports to the court and beneficiaries as requested

And much more. This process often stretches longer than a year.  For an idea of what separates executors who succeed from those who make this way harder than it should be, visit our article, Executors of an Estate: What they do & secrets to succeeding .

The Exact Text on Form AOC-E-100

Here’s the text, verbatim, that is found on North Carolina Form AOC-E-100 - Application And Assignment Year's Allowance. You can use this to get an idea of the context of the form and what type of information is needed. STATE OF NORTH CAROLINA County File No. In The General Court Of Justice Superior Court Division Before The Clerk APPLICATION AND ASSIGNMENT YEAR’S ALLOWANCE IN THE MATTER OF THE ESTATE OF Name Of Decedent Date Of Death G.S. 30-15, 30-16, 30-17, 30-21 I am applying for an allowance for a year’s support for the person(s) named and state: 1. a. The decedent died a resident of this county on the date shown above. b. The decedent did not die a resident of this county, but personal property that belonged to the decedent at his or her death, which was on the date shown above, is located in this county. 2. The surviving spouse, if any, named below is entitled to an allowance from the personal property of the decedent of the value of sixty thousand dollars ($60,000), for a year’s support if the surviving spouse has not forfeited that right.* The child(ren), if any, named below is/are entitled to an allowance of five thousand dollars ($5,000) for a year’s support.* 3. I request assignment of Sixty thousand dollars ($60,000) from the funds or other personal property of the decedent for a year’s support to the surviving spouse. Five thousand dollars ($5,000) from the funds or other personal property of the decedent for a year’s support to each child named below. SPOUSE AND CHILD(REN)* ENTITLED TO ALLOWANCE Full NameComplete Address (including zip code)AgeRelationship Spouse Child Child Child Child Child Child Name And Address Of Applicant (type or print) Original-File Copy-Applicant (Over) *NOTE: For a surviving spouse to be entitled to receive an allowance, he or she must have been a resident of North Carolina at the time of the decedent’s death, or the decedent must have been a resident of North Carolina at that time. See S.L. 2019-113. For a child to be entitled to receive an allowance, he or she must be one of the following: (1) a child under the age of 18 years, including an adopted child or a child with whom the widow was pregnant at the death of her husband; (2) a child who is less than 22 years of age who is a full-time student in any educational institution; (3) a child under 21 years of age who has been declared mentally incompetent; (4) a child under 21 years of age who is totally disabled; (5) a person under the age of 18 years who resided with the deceased parent at the time of death and to whom the deceased parent or the surviving parent stood in loco parentis. See G.S. 30-17 and G.S. 12-3(16), (17). Spouse Of Decedent Child/Full-Time Student Personal Representative Next Friend Of Child Guardian Other: Signature Of Applicant Date By signing below, I agree that the information in this filing is true to the best of my knowledge, information, or belief. I understand that, in some circumstances, persons who make false filings can be subject to legal penalties or sanctions and, depending on the situation, may be charged with a crime. AOC-E-100, Rev. 9/21 © 2021 Administrative Office of the Courts ASSIGNMENT OF YEAR’S ALLOWANCE I have examined the above application and have determined the money and other personal property of the decedent. I find that the allegations in the application are true and that each person(s) named in the application is entitled to the allowance requested. I ASSIGN to the applicant the funds or other items of the personal property of the decedent listed below, which I have valued as indicated. This property is assigned free and clear of any lien by judgment or execution against the decedent and is to be paid by the applicant to the person(s) entitled. I assess as a DEFICIENCY the amount, if any, shown below, which is to be paid or delivered to the proper person when any additional personal assets of the decedent are discovered. Personal Property AssignedValue $ $ DEFICIENCY TOTAL CERTIFICATION I hereby certify that the foregoing is a True and Correct copy of the report in the Assignment of Year’s Allowance in the matter of the above-referenced estate as recorded in this office and shall be sufficient to release the items listed as assigned to the surviving spouse or children of the deceased as provided under G.S. 30-15, 30-17, and 30-21. Date Date Signature Signature Assistant CSC Clerk Of Superior Court Magistrate Deputy CSC Assistant CSC Clerk Of Superior Court SEAL SEAL AOC-E-100, Side Two, Rev. 9/21 © 2021 Administrative Office of the Courts

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Change in the Law – North Carolina Year’s Allowance

As of January 2019 the Year’s Allowance in North Carolina has been adjusted. For a surviving spouse there is an increase in the statutory allowance from $30,000.00 to $60,000.00. The Spousal Allowance is intended as a type of stop-gap; a means of meeting the immediate needs of the surviving spouse when he or she is widowed and presumably assets may be tied up during the estate administration.

The $60,000.00 Spousal Allowance is authorized by statute to provide for necessities. It may only be paid from the personal property of the Decedent and not from real property. With the exception of secured creditors, the property assigned has priority over the creditors of the estate. If there are not enough personal property assets to satisfy the assignment, a “deficiency judgment” is given. If there are sufficient assets, the spouse may make an application to the Clerk of Court for an allowance greater than $60,000.00. Such an additional allowance would only be allowed in solvent estates and would provide the surviving spouse with the same level of support during the year after the Decedent’s death that the spouse had been accustomed to receiving from the Decedent. The maximum amount is “one-half of the average annual net income (after tax income) of the Decedent for the 3 years immediately preceding the Decedent’s death”. However, the Clerk may only assign this with “due consideration for other persons entitled to allowances for year’s support from the Decedent’s estate.”

It is the duty of the Executor or Administrator to pay the Year’s Allowance if the spouse applies for it within one year of the death of the deceased spouse. You should note, it is not the duty of the personal representative to ask the surviving spouse if he or she wants the allowance, only to fulfill it once applied for. The surviving spouse can apply directly to the Clerk or Court for the Year’s Allowance.

The surviving spouse, a child or a creditor can appeal the award of a Year’s Allowance within 10 days of the assignment.

There are certain circumstances when the surviving spouse is not entitled to the Year’s Allowance. By statute these include voluntarily separating from the spouse and living in adultery, willfully abandoning the spouse, if surviving spouse killed the Decedent (a “slayer”), or a valid premarital agreement waived the right. In addition, case law adds another restriction. If the surviving spouse lived in a state other than North Carolina, they cannot be awarded the Year’s Allowance. This could be problematic for spouse’s whose jobs require that they live in different states such as the military. It is the opinion of this author that the Legislature should legislate around this 100+ year old case.

The other “Year’s Allowance” that is allowed is the Child’s Allowance. Under N. C. Gen. Stat. § 31-17, whenever any parent dies “survived by any child under the age of 18 years, including an adopted child or a child with whom the widow may be pregnant at the death of her husband, or a child who is less than 22 years of age and is a full-time student in any educational institution, or a child under 21 years of age who has been declared mentally incompetent, or a child under 21 years of age who is totally disabled, or any other person under the age of 18 years residing with the deceased parent at the time of death to whom the deceased parent or the surviving parent stood in loco parentis, every such child shall be entitled to receive an allowance of five thousand dollars ($5,000) for the child’s support for the year next ensuing the death of the parent.” This amount did not increase with the change to the Spouse’s Allowance but similar to the surviving spouse, a child can petition the Court for an additional amount under certain circumstances.

If there are not enough personal property assets to satisfy both the surviving spouse and the children, the allowance is prorated. If the Decedent died with a Will, the amounts awarded are credited towards the amount taken under the Will. If the Decedent died without a Will, the amounts awarded are in addition to the amount taken under the intestate succession statute. If you have questions about a Spousal Allowance or a Child’s Allowance, the attorneys in the estate department of Law Firm Carolinas can assist you.

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What Is the Spousal Allowance or Dependent Allowance in North Carolina?

The death of a spouse can be one of the hardest losses a person can experience. And as if it weren't already hard enough, there's the added stress of sorting out the estate and financial matters. As a surviving spouse, it's important to understand what your rights are, including understanding the Spousal Allowance, the Dependent Allowance, and the Elective Share.

What is the Year's Allowance? What Is The Spousal Year's Allowance?

North Carolina law provides for a year’s allowance for the surviving spouse and dependent children of a deceased individual.

Under North Carolina law , the surviving spouse of the Decedent is entitled to the first $60,000 (this was increased from $30,000 beginning on January 1, 2019) of the estate. Similarly, a dependent child of the Decedent may be entitled to a $5,000 allowance from the estate. 

In some instances, the surviving spouse may apply for a higher spousal allowance based on the income of the deceased spouse. The maximum spousal year's allowance is one half of the average annual net income of the deceased spouse for the three years immediately prior to the deceased spouse's death. Net income means the deceased spouse's take-home pay after taxes. 

Both the year's allowance for dependent children and the spousal year's allowance are available regardless of whether the deceased spouse had a will or not.

The Court has specific forms for claiming the Year’s Allowance. A Surviving Spouse can also renounce the Spousal Allowance if he or she does not wish to claim it.

Wondering why these laws exist? The laws were originally created to protect widows and children of a decedent and provide them with some assets to meet their needs while the rest of the estate was being administered. 

What Assets Are Available to Pay the Year's Allowance and Spousal Year's Allowance?

The spousal allowance is paid using personal property such as money in bank accounts, automobiles the deceased spouse owned, or similar. Unless there is a secured lien against an asset, the spousal year's allowance gets priority before claims against the estate, meaning that the spousal allowance gets paid before other debts or claims. An example of a secured lien would be a car loan against a car. If there is a secured lien, the value of the lien will be subtracted from the value of the asset first. For example, if the deceased spouse owned a vehicle worth $20,000 that was subject to a car loan lien of $15,000, then only $5,000 of the car's value can be applied towards the spousal allowance.

Real estate such as land or buildings cannot be used to satisfy the spousal year's allowance.

If initially there is not enough personal property available to cover the entire $60,000 spousal allowance, the clerk of court will enter a deficiency judgment in the estate. Thus, if additional assets are later found, those assets can be used to pay the remainder of the spousal allowance to satisfy the deficiency judgment.

How Long Does A Surviving Spouse Have to Claim the Spousal Allowance?

Generally, the personal representative of the estate (often called an executor or administrator ) is responsible for assigning the spousal allowance to the surviving spouse so long as the spouse applies for the spousal allowance within one year of the deceased spouse's death.

If there is no personal representative, or if the personal representative fails to assign the spousal allowance, the surviving spouse or their attorney can apply directly to the clerk of court using Spousal Allowance Form  and submitting the filing fee with the form.

If the surviving spouse wishes to apply for more than the minimum spousal allowance of $60,000, the surviving spouse will need to file a petition for a special proceeding before the clerk of court. This filing must show that the spouse is entitled to the greater amount and that the estate is worth more than $60,000.

Can A Surviving Spouse Be Disqualified From Receiving the Spousal Allowance?

A surviving spouse may be disqualified from receiving the spousal allowance if:

• The surviving spouse waives his or her right to the year's spousal allowance.
• The surviving spouse waived his or her right to the spousal allowance in a valid prenuptial or postnuptial agreement.
• The surviving spouse is determined to be a "slayer" under the North Carolina slayer statutes because they plead or are found guilty of killing the deceased spouse.
• If the deceased spouse and the surviving spouse were legally separated at the time of the deceased spouse's death.
• If the surviving spouse was living in adultery at the time of the deceased spouse's death.
• If the surviving spouse is deemed to have "willfully abandoned" the deceased spouse prior to the deceased spouse's death.
• If the marriage between the deceased spouse and the surviving spouse is determined to be invalid.

What Other Claims May A Surviving Spouse Have Against the Estate?

A surviving spouse may also be entitled to claim additional assets under the North Carolina Elective Share rules which you can read more about here .

• How The Years’ Allowance Can Help After a Spouse’s Death

by Admin | Sep 22, 2021 | Wealth and Estate Planning

The loss of a spouse is one of the most difficult things a person can endure and dealing with Estate and financial issues can make it harder. The “Year’s Allowance” is designed to make the financial burden easier for North Carolina families in the short term by providing quick access to funds without the time and expense of the Probate process.

What Is the Year’s Allowance?

Under North Carolina law , when a married person passes away, their surviving spouse is entitled to receive up to $60,000 (as of 2021) from the Estate in order to help support them for the first year of their transition, regardless of whether they died testate (with a Will) or intestate (without a Will).

In some cases, the law provides for a higher amount of support based on the income of the deceased spouse. This amount is calculated based on the average annual income of the deceased spouse in the three years immediately prior to their death. This amount is also calculated on net (take-home) income, not gross (pre-tax) income.

Do Children Get Anything for A Year’s Allowance?

In addition to the support provided from the Estate for the spouse, children can be provided with $5,000 each under the same structure as the spousal Year’s Allowance given, they meet the following criteria:

• Under the age of 18 years old, OR
• Under the age of 22 years old and attending a higher education institution, OR
• Under the age of 21 years old and declared mentally incompetent or totally disabled

A child can also be excluded from eligibility if the child is born out of wedlock, except in one of the following cases:

• The deceased father has recognized the paternity of the child by deed, will, or other writing, OR
• The deceased father died prior to the child’s birth or within a year of their birth and is established to be the father of the child by DNA testing

This support is available for biological children, adopted children, and even children where the spouse is pregnant at the time of the decedent’s death. Since children cannot receive real property in a Will until they reach the age of 18, the funds from this are paid to the surviving spouse for the benefit of the child.

If the child does not reside with a surviving spouse or parent when the allowance is paid, the allowance will be paid to the child’s general guardian or guardian of the Estate, if any, and if none to the clerk of the superior court who will receive and disburse the allowance for the benefit of the child.

How Are the Funds Disbursed?

The court has a specific form that can be completed to claim the Year’s Allowance here: https://www.nccourts.gov/documents/forms/application-and-assignment-years-allowance

Generally, the Executor of the Estate is responsible for providing the Year’s Allowance to the surviving spouse and children as long as the surviving spouse applies for it within one year of the deceased spouse’s death. If the Executor fails to act within 10 days, or if the deceased spouse died Intestate, the surviving spouse or their attorney can apply directly to the clerk of court using the form above.

What Assets Can Be Used to Pay the Year’s Allowance?

The Year’s Allowance for a surviving spouse and children can be paid using almost any available personal property to the Estate, including bank accounts, cars, property, and other assets, as long as there is not a secured lien against the asset.

This allowance gets precedence over any other claims against the Estate, except for secured liens. In the case of a secured lien, such as a car loan, the value would be calculated as the value of the asset minus the outstanding amount of the lien.

Can A Spouse Lose Their Qualification for The Allowance?

Yes, but those ways are fairly limited. The surviving spouse can waive their rights to the allowance if they do not want or need it either by making the decision after the death of their spouse or by prenuptial or postnuptial agreement, or they can be disqualified in one of the following ways:

• If the surviving spouse pleads or is found guilty of killing the deceased spouse.
• If the surviving spouse and deceased spouse were legally separated at the time of the deceased spouse’s death.
• If the surviving spouse was living in adultery or deemed to have “willfully abandoned” the deceased spouse at the time of the deceased spouse’s death.
• If the marriage between the deceased spouse and the surviving spouse is determined to be invalid.

Contact Our North Carolina Estate Planning Team

The Year’s Allowance is a useful tool to help a surviving spouse and children weather the first year after a loved one’s death and is a great option as a part of a larger Estate Plan. The team at McCollum Law helps families of all shapes and sizes craft an Estate Plan to protect their loved ones after a family member passes away. Contact us today at 919-861-4120 or www.mccollumlawpc.com to schedule a consultation and get started with protecting your family’s future!

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Application And Assignment Years Allowance Form. This is a North Carolina form and can be use in Estate Statewide.

Tags: Application And Assignment Years Allowance, E-100, North Carolina Statewide, Estate

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