How can I claim a year’s allowance from a deceased relative’s estate, and what proof or signatures are required? – North Carolina

Short Answer

In North Carolina, a year’s allowance is claimed by filing a verified (sworn) petition with the Clerk of Superior Court in the county where estate venue is proper. If a personal representative has been appointed, the petition generally must be filed within six months after the letters issue, and a copy must be delivered to the personal representative by personal delivery or first-class mail. The required “proof” is usually a sworn statement and supporting documents showing the relationship (spouse or eligible child) and the information needed for the clerk to decide what personal property should be awarded.

Understanding the Problem

In North Carolina probate, the question is how a surviving spouse or an eligible child can claim a year’s allowance from a deceased person’s estate in an open estate, and what signatures and proof the Clerk of Superior Court will require to enter an order awarding the allowance. The key trigger is whether a personal representative has been appointed in the estate and, if so, when letters testamentary or letters of administration were issued.

Apply the Law

North Carolina law gives a surviving spouse and certain children a statutory right to a “year’s allowance” (sometimes called a family allowance) paid from the decedent’s personal property. The claim is made by filing a verified petition with the Clerk of Superior Court (the probate division) in the proper county. If a personal representative has been appointed, the petitioner must also send or deliver a copy of the verified petition to that personal representative, and the claim must be filed within a specific time window tied to the issuance of letters.

Key Requirements

Proper claimant and standing: A surviving spouse may claim a spousal allowance. An eligible child (generally under age 21 at the decedent’s death, including adopted children and certain children the decedent treated as a parent) may claim a child’s allowance through the person authorized to file on the child’s behalf.
Verified filing with the probate clerk: The claim is made by a verified petition (sworn before a notary or other authorized official) filed with the Clerk of Superior Court in the county where venue is proper for the estate.
Notice to the personal representative and deadline: If a personal representative has been appointed, the petitioner must provide the personal representative a copy of the verified petition by personal delivery or first-class mail, and the petition must be filed within six months after letters issue.

What the Statutes Say

N.C. Gen. Stat. § 30-15 (Spousal allowance) – Creates the spousal year’s allowance, requires a verified petition, sets the six-month deadline when a personal representative is appointed, and requires delivery of a copy to the personal representative.
N.C. Gen. Stat. § 30-17 (Child’s allowance) – Creates the child’s year’s allowance, explains who may file on the child’s behalf, requires a verified petition, and sets the same six-month deadline when a personal representative is appointed plus delivery of a copy to the personal representative.
N.C. Gen. Stat. § 30-20 (Procedure; clerk’s order) – Directs the clerk to determine entitlement and to enter an order awarding specific personal property; allows the clerk to require a hearing and direct a contested estate proceeding in some cases.
N.C. Gen. Stat. § 30-23.1 (Challenge to allowance) – Allows a person with standing to challenge an allowance order in an estate proceeding within one year after the allowance order is entered.

Analysis

Apply the Rule to the Facts: Here, an attorney drafted a year’s allowance petition for an heir in an open North Carolina estate. Whether the claim is a spouse’s allowance or a child’s allowance controls who must sign (the spouse, or the proper representative for a child) and what relationship proof is needed. Because the estate is open, a personal representative may already be appointed; if so, the petition should be verified and filed within six months of the issuance of letters, and a copy should be delivered to the personal representative by personal delivery or first-class mail.

Process & Timing

Who files: For a spousal allowance, the surviving spouse (or a legally authorized representative allowed by statute). For a child’s allowance, the person with statutory priority to file on behalf of the child (often a guardian, surviving parent in qualifying circumstances, or other caregiver). Where: The Clerk of Superior Court (Estates Division) in the county where venue is proper. What: Typically the statewide form titled “Application and Assignment Year’s Allowance” (AOC-E-100) is used for routine claims; some cases instead require a separately drafted verified petition. When: If a personal representative has been appointed, file within six months after letters testamentary or letters of administration are issued.
Provide required notice to the personal representative (if one exists): Deliver or mail a copy of the verified petition to the personal representative. Keep proof of delivery or mailing for the file because notice problems commonly delay entry of the clerk’s order.
Clerk review and order: The clerk reviews the petition and supporting information to identify what personal property should be awarded and enters an order assigning the allowance. If the clerk decides a hearing is necessary (for example, because entitlement, available personal property, or the proper assets to award are disputed), the clerk can require the matter to proceed as a contested estate proceeding.

Exceptions & Pitfalls

Missing verification (not sworn): North Carolina requires a verified petition. An unsigned, unsworn petition can be rejected or delayed until corrected.
Wrong signer or missing authority: A spouse generally must sign the spousal claim (unless a legally authorized representative signs as permitted by statute). A child’s claim must be filed by the person with proper priority or appointment to act for the child; if a guardian is involved, court authority may be needed depending on the child’s situation.
No proof of relationship: Clerks commonly expect documentation or a sworn affidavit supporting the relationship (for example, marriage information for a spouse; proof of the child’s age and relationship to the decedent; and, where applicable, facts showing the decedent stood in loco parentis).
Notice failures to the personal representative: When a personal representative exists, the statutes require delivery or mailing of a copy of the verified petition to the personal representative. Skipping this step can trigger objections, delays, or a later challenge.
Contested issues: Even when a claim is filed correctly, an interested person may later challenge the order. North Carolina sets a deadline to bring that type of challenge, so parties should treat the allowance order as time-sensitive and keep the paperwork complete.

Conclusion

In North Carolina, a year’s allowance is claimed by filing a verified petition with the Clerk of Superior Court in the proper county and, if a personal representative has been appointed, delivering a copy to the personal representative by personal delivery or first-class mail. The claimant must be a surviving spouse or an eligible child (through the proper representative), and the filing must meet the statute’s signature and verification requirements. In estates with a personal representative, the key next step is to file the verified petition within six months after letters issue.

Talk to a Probate Attorney

If a family is dealing with a North Carolina year’s allowance claim and questions about who must sign, what to file, and how fast the claim must be made after letters issue, our firm has experienced attorneys who can help explain the process and deadlines. 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.