Dec282025
Probate Q&A Series

How does the year’s allowance work in an intestate estate when there are significant medical bills and limited assets? – North Carolina

Short Answer

In North Carolina, a surviving spouse can claim a $60,000 years allowance from the decedents personal property even when the decedent died without a will, and that allowance is generally protected from the decedents creditors, including medical creditors. The claim is made with the Clerk of Superior Court, and if an estate has a personal representative, the spouse typically must file the claim within six months after the letters are issued. When assets are limited, the clerk can award whatever personal property exists and enter a deficiency judgment for any unpaid balance, which can be satisfied later if more estate assets are found.

Understanding the Problem

In a North Carolina intestate estate, can a surviving spouse receive a years allowance when the estate has large medical bills and very little cash, and how does that interact with what is left to children from a prior relationship? The key decision point is whether and when the surviving spouse makes a years allowance claim through the Clerk of Superior Court while the estate is still gathering assets and claims are being evaluated.

Apply the Law

North Carolinas years allowance is a statutory family allowance meant to provide support for a surviving spouse during the first year after death. In an intestate estate, the spouses allowance is in addition to the spouses intestate share, and it is generally exempt from creditor claims against the estate. The Clerk of Superior Court assigns the allowance from the decedents personal property (not real estate). If a personal representative (administrator) has been appointed, the spouse must usually file the claim within six months after letters of administration are issued and must provide a copy to the personal representative.

Key Requirements

  • Eligible claimant: The claimant must be the surviving spouse (or a legally authorized representative acting for the spouse during the spouses lifetime), and the spouse must not be barred by a disqualifying circumstance under North Carolina law.
  • Proper filing and timing: The spouse must file a verified petition with the Clerk of Superior Court in the proper venue, and if an administrator has been appointed, the spouse generally must file within six months after letters of administration are issued and send a copy to the administrator.
  • Available property to satisfy the award: The clerk assigns the allowance from personal property of the estate; if personal property is not enough, the clerk may enter a deficiency judgment against the estate that can be satisfied later if additional estate assets are discovered.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Because the decedent died intestate and left a surviving spouse and children from a prior relationship, the years allowance can significantly affect what personal property is available for creditor payment and later distribution. If the estate has significant medical bills and limited liquid assets, the spouses allowance claim can be a primary way to protect up to $60,000 in personal property from most estate creditor claims. The timing issue around accounts still under the decedents SSN and a brokerage account that must be retitled to the estate can matter because the clerk can award what is identified now and a deficiency can remain open to be satisfied if additional personal property later comes into the estate.

Process & Timing

  1. Who files: The surviving spouse (or an authorized representative acting during the spouses lifetime). Where: Clerk of Superior Court in the North Carolina county where venue is proper for the estate. What: A verified years allowance application (often filed on AOC Form E-100 in practice). When: If an administrator has been appointed, file within six months after letters of administration are issued and deliver/mail a copy to the administrator.
  2. Clerks assignment: The clerk reviews the filing and enters an order awarding specific personal property to satisfy the spouses allowance. If personal property on hand is less than the allowance, the clerk can award what exists and enter a deficiency judgment against the estate for the unpaid balance.
  3. Administration continues: The administrator continues collecting assets (including retitling accounts to the estate EIN when required), giving notice to creditors, and evaluating claims. If additional personal property later comes into the estate, the administrator can satisfy the deficiency for the allowance before distributing remaining assets to heirs.

Exceptions & Pitfalls

  • Waiting too long after letters are issued: In administered estates, missing the six-month filing window can jeopardize the allowance claim.
  • Confusing creditor priorities: Medical bills and other creditor claims may be payable from estate assets, but the spouses allowance is generally creditor-exempt under North Carolina law. That can change what funds remain for claims and, later, what remains for childrens shares.
  • Asset classification problems: The clerk assigns the allowance from personal property. If an asset is jointly owned, has a payable-on-death beneficiary, or otherwise passes outside probate, it may not be available to satisfy the allowance in the same way as estate-owned personal property.
  • Disputes leading to litigation: If heirs, creditors, or the administrator challenge eligibility, the amount, or which assets were assigned, the dispute can move into a contested estate proceeding and can affect timing and costs.

Conclusion

In North Carolina, the surviving spouses years allowance in an intestate estate is a $60,000 award from the decedents personal property that is generally protected from the decedents creditors, which can be crucial when medical bills exceed available assets. The Clerk of Superior Court assigns the spouses allowance first, and if personal property is short, the clerk can enter a deficiency to be satisfied later if more assets come into the estate. The next step is to file the verified allowance petition with the Clerk within six months after letters are issued if an administrator has been appointed.

Talk to a Probate Attorney

If you’re dealing with a North Carolina intestate estate where medical bills are high and assets are limited, our firm has experienced attorneys who can help clarify how the years allowance works, how it affects creditor payments and distributions, and what deadlines apply. 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.

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.