Dec42025
Probate Q&A Series

Do I need to open a full estate and proceed as a contested matter to request a year’s allowance? – North Carolina

Short Answer

Under North Carolina law, a surviving spouse or qualifying child does not have to open a full estate administration or automatically proceed as a contested matter just to request a standard year’s allowance. The ordinary year’s allowance is requested by filing a verified application with the clerk of superior court, usually on AOC Form E-100, and the clerk can award it administratively. A contested estate proceeding is required only if the clerk orders one (for example, because of a dispute over entitlement, amount, or property), or if the applicant seeks an additional allowance above the statutory amount.

Understanding the Problem

The core question is whether North Carolina requires a formal, full estate administration and a contested estate proceeding in order for a surviving spouse or eligible child to obtain a year’s allowance. In many situations, a surviving spouse wants quick access to a limited amount of the decedent’s personal property for support, without going through a full probate. The issue is whether the law treats this request as a simple application handled by the clerk of superior court, or as a full-blown contested matter that must run through the estate litigation process in Chapter 28A.

Apply the Law

North Carolina separates the standard family allowance process from full estate administration. The statutes on year’s allowances give the clerk of superior court authority to receive applications and assign allowances from the decedent’s personal property, without requiring an estate to be opened or a contested proceeding in every case. A contested estate proceeding becomes mandatory only if there is a challenge to the allowance or if a surviving spouse or child seeks an additional allowance beyond the basic statutory amount.

Key Requirements

  • Eligibility for the standard allowance: The applicant must be a surviving spouse entitled under N.C. Gen. Stat. § 30-15 or a qualifying child under N.C. Gen. Stat. § 30-17, and must file a verified petition with the clerk in the proper county.
  • Administrative process before contest: The clerk generally reviews the application, determines entitlement, and assigns cash or personal property (not real estate) as the allowance under N.C. Gen. Stat. § 30-18 and § 30-20, without requiring a full estate.
  • When a contested proceeding is required: A contested estate proceeding in the superior court (before the clerk) is required if the clerk orders one to resolve a dispute over the allowance under § 30-20(c), if someone brings a challenge to the allowance under § 30-23.1, or if a spouse or child files for an additional allowance under § 30-27, which must proceed as a contested estate proceeding.

What the Statutes Say

Analysis

Apply the Rule to the Facts: For a basic year’s allowance in North Carolina, the process typically stays at the clerk level and does not require opening a full estate or starting in a contested posture. The applicant files a verified petition in the proper county; the clerk confirms eligibility and available personal property, then enters an order assigning the allowance. A contested proceeding under Article 2 of Chapter 28A only comes into play if the clerk believes a formal hearing is necessary, if someone later challenges the allowance, or if the surviving spouse or child asks for an additional allowance above the statutory level.

Process & Timing

  1. Who files: The surviving spouse, the spouse’s agent under a durable power of attorney, an appropriate guardian, or the proper representative for a child. Where: With the Clerk of Superior Court in the county where venue would be proper for the estate under Chapter 28A. What: A verified petition, often using AOC Form E-100 (Application and Assignment of Year’s Allowance), listing the relationship, basic facts, and the decedent’s personal property. When: There is no absolute time limit unless a personal representative has been appointed; if letters have been issued, the claim must be filed within six months of that date.
  2. The clerk reviews the petition and supporting information, may ask for documentation on the assets, and decides whether the spouse or child is entitled to the allowance and which personal property will satisfy it. If questions arise that cannot be resolved informally, the clerk may require a hearing and can direct that the matter proceed as a contested estate proceeding under § 30-20(c).
  3. If the clerk awards the allowance, the clerk enters a written order assigning specific personal property or cash and, if necessary, enters a deficiency judgment against the estate if assets on hand are insufficient. Certified copies of the order are then used to transfer the assets. If any party with standing wants to challenge the order, that party must file a contested estate proceeding under § 30-23.1 within one year of the date of the allowance order.

Exceptions & Pitfalls

  • Seeking an additional allowance above the statutory amounts automatically requires a contested estate proceeding under § 30-27, with all required parties joined and the matter handled under Article 2 of Chapter 28A.
  • Failing to file within six months after letters are issued (when a personal representative has been appointed) can forfeit the right to the standard allowance, even though there is no fixed deadline if no estate has been opened.
  • Misunderstanding what property can be used is common; allowances may be awarded only from personal property, not real estate, and must be coordinated with any existing personal representative and creditor claims.
  • Any person with standing, including the personal representative, may challenge an allowance order within one year under § 30-23.1, so records of the petition and assets used should be complete and accurate to reduce the risk of later disputes.

Conclusion

North Carolina law allows a surviving spouse or qualifying child to obtain a standard year’s allowance through a relatively simple application to the clerk of superior court, without automatically opening a full estate or starting a contested estate proceeding. The allowance is assigned from the decedent’s personal property based on a verified petition and the clerk’s review. A contested proceeding becomes necessary only if the clerk directs one, someone later challenges the allowance, or the applicant seeks an additional allowance, so the next step is to prepare and file the verified allowance petition with the clerk within six months after letters issue if a personal representative has been appointed.

Talk to a Probate Attorney

If a surviving spouse or child is considering a year’s allowance in North Carolina and wants to avoid unnecessary estate litigation, our firm has experienced probate attorneys who can help explain options, deadlines, and the clerk’s process. 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 any specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.