Short Answer

In North Carolina, a surviving spouse may claim a $60,000 spousal year’s allowance and an eligible child may claim a $5,000 child’s year’s allowance from the decedent’s estate, even if a will leaves them nothing. You apply with the Clerk of Superior Court within one year of death; if the personal representative won’t act within 10 days of a written request, you can file directly. If basic allowances are not enough, you may petition for a larger allowance in a special proceeding. Some assets (like wrongful death proceeds or beneficiary‑designated annuities) are not available to fund allowances.

Understanding the Problem

You want to know whether, in North Carolina, a surviving spouse or her minor child can obtain a spousal or child’s year’s allowance when a will names other beneficiaries and an uncooperative executor. The core decision: can the spouse and child claim statutory support and how do they file with the Clerk of Superior Court within one year of death? One key fact here is that the decedent’s old will left everything to siblings and named a parent as executor.

Apply the Law

North Carolina guarantees limited, fast support to a surviving spouse and certain children for the first year after death, regardless of what the will says. The Clerk of Superior Court administers these allowances from the decedent’s personal property in the estate. A spouse may take the $60,000 statutory allowance and an eligible child may take $5,000; both must be claimed within one year of death. If needed, the spouse or child can seek a larger, needs-based allowance by filing a special proceeding with the clerk. These allowances are typically set ahead of most creditor claims and before will distributions. Some assets, such as wrongful death proceeds and beneficiary‑designated annuities, do not fund allowances.

Key Requirements

• Eligibility: You must be a valid surviving spouse, or a qualifying child (e.g., under 18, certain students or disabled individuals).
• Deadline: Apply within one year of the decedent’s death; missing this window generally bars the claim.
• Where to file: Clerk of Superior Court in the county of the decedent’s residence; use the AOC-E-100 form for the standard allowance.
• If the personal representative won’t act: After a written request, if they fail to act within 10 days, the spouse or a child’s guardian/next friend may apply directly to the clerk.
• Source of payment: Personal property in the estate funds allowances; real estate and most non‑probate assets are not used.
• Larger allowance option: You may petition the clerk in a special proceeding for more than $60,000/$5,000; total allowances are capped by a formula tied to the decedent’s average net income.

What the Statutes Say

• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Allows a surviving spouse to claim a statutory support allowance from estate personal property.
• North Carolina Gen. Stat. § 30-17 (Child’s year’s allowance) – Provides an allowance for eligible children and explains who receives payment on the child’s behalf.
• North Carolina Gen. Stat. § 30-27 (Additional year’s allowance) – Authorizes a special proceeding to award an allowance greater than the standard amounts.
• North Carolina Gen. Stat. § 28A-18-2 (Wrongful death) – States wrongful death proceeds are not estate assets and are distributed to heirs by intestacy.

Analysis

Apply the Rule to the Facts: Here, the spouse can file for the $60,000 spousal allowance within one year, despite the old will disinheriting her. The minor child can claim the $5,000 child’s allowance through the surviving parent or a guardian/next friend. If the named executor will not act within 10 days after a written request, the spouse (and the child’s representative) may apply directly with the clerk. Any inherited annuity with a named non‑estate beneficiary and any wrongful death recovery would not fund these allowances; if the annuity pays to the estate, it may be used.

Process & Timing

1. Who files: Surviving spouse; and for the child, the surviving parent or a guardian/next friend. Where: Clerk of Superior Court in the decedent’s county of residence in North Carolina. What: File AOC-E-100 (Application and Assignment of Year’s Allowance) for the standard amounts; include basic estate asset information. When: File within one year of death. If asking for a larger allowance, file a special proceeding after the creditor notice date but still within one year.
2. Clerk’s review and assignment: The clerk identifies eligible applicants, confirms available estate personal property, and assigns assets or cash up to the allowance; if the personal representative did not act timely, the clerk can proceed on the spouse’s or child’s direct filing. Expect scheduling to vary by county.
3. If more support is needed: File a special proceeding for an additional allowance. The clerk sets an amount consistent with the decedent’s financial condition and the statutory cap; if the petitioner is a minor, a judge must approve any prejudicial final order. The clerk’s judgment is then filed in the estate case.

Exceptions & Pitfalls

• Disqualification: A spouse who waived the allowance in a valid agreement, abandoned the decedent under the acts-barring-property-rights laws, or lacks a valid marriage may be ineligible.
• Wrong asset pool: Allowances come from estate personal property. Real estate, wrongful death proceeds, and most beneficiary‑designated assets (like many annuities) do not fund allowances.
• Uncooperative executor: If the personal representative fails to act within 10 days of written request, file directly with the clerk. For wrongful death inaction, you may seek court relief to ensure someone with authority pursues the claim; procedures and standing vary.
• Minor child payments: If the child doesn’t live with the surviving parent or lacks a guardian, the clerk may hold and disburse funds; documentation and, in some cases, bond may be required.
• Appeals and deficiencies: An allowance order can be appealed to Superior Court on a short timeline. If estate personal property is insufficient, the clerk may enter a deficiency to be paid when assets come in.

Talk to a Probate Attorney

If you’re dealing with a will that leaves the spouse and child out but you need to secure a year’s allowance, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

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.